Fair Work Act 2009

This section applies if a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer.

The employer must pay the regulated employee at no less than the protected rate of pay for the employee in connection with the work performed by the employee for the regulated host.

This subsection is a civil remedy provision (see Part 4‑1).

The employer does not contravene subsection (2) if the employer pays the regulated employee at less than the protected rate of pay because:

the regulated host provides information to the employer under section 306H (which deals with information about the protected rate of pay); and

the employer reasonably relies on the information for the purposes of working out the protected rate of pay for the regulated employee; and

the information is incorrect in a material particular.

The employer does not contravene subsection (2) if:

the regulated labour hire arrangement order covers the employer because of the operation of subsection 306ED(11); and

the employer pays the regulated employee at less than the protected rate of pay because the employer has not been either:

notified that the regulated host has made an application under subsection 306ED(2) (which deals with certain variation orders); or

for an employer who was a successful tenderer in a tender process—advised under subsection 306EE(2) or (3) (which deal with notifying tenderers) in relation to the regulated labour hire arrangement order.

Unless subsection (5) applies, the protected rate of pay for the regulated employee is the full rate of pay that would be payable to the employee if the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee.

If the regulated employee is a casual employee, and there is no covered employment instrument that applies to the regulated host that provides for work of that kind to be performed by casual employees, the protected rate of pay for the regulated employee is the full rate of pay that would be payable to the employee if:

the employee were an employee other than a casual employee and the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee; and

the base rate of pay that would be payable to the employee, in the circumstances referred to in paragraph (a), were increased by 25%.

Despite subsections (4) and (5), if the employer is a national system employer only because of section 30D or 30N, the protected rate of pay for the regulated employee does not include any amount that relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1).

Sections 30D and 30N extend the meaning of national system employer.

If the regulated employee is a pieceworker and paragraph 16(2)(b) would apply to the employee were the host employment instrument to apply to the employee, the base rate of pay that would be payable to the employee for the purposes of subsection (5) of this section is taken to be the base rate of pay that would be referred to in that paragraph.

If the regulated employee is a pieceworker and paragraph 18(2)(b) would apply to the employee were the host employment instrument to apply to the employee, the full rate of pay that would be payable to the employee for the purposes of subsections (4) and (5) of this section is taken to be the full rate of pay that would be referred to in that paragraph.

To avoid doubt, this section does not require that a regulated employee referred to in subsection (5) be taken to be an employee other than a casual employee for the purposes of determining entitlements to kinds of leave, or any other purpose, except determining the protected rate of pay for the regulated employee.

Subsection (2) applies despite any provision of:

a fair work instrument (other than an instrument made by the FWC under this Part) that applies to the regulated employee; or

a covered employment instrument (other than a fair work instrument) that applies to the regulated employee; or

the regulated employee’s contract of employment;

See also section 306N (effect of alternative protected rate of pay order) and subsection 306Q(6) (effect of arbitrated protected rate of pay order).