Holiday Season Preparations and Labour Hire: Navigating Compliance and Culture in the Festive Rush

As the end of the year approaches, Australian businesses are gearing up for the busiest trading period of the calendar – the holiday season. For many employers, particularly those in retail, hospitality, and logistics, this season brings a familiar surge in demand and an equally pressing need for extra hands. Casual employees, short-term contracts and labour hire arrangements become essential tools to keep operations running smoothly. While this model offers immediate benefits, it can also lead to legal exposure if not managed systematically.

The implementation of Same Job, Same Pay provisions in November 2024 under the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) has fundamentally changed how labour hire can be used. As employers ramp up their seasonal hiring strategies, understanding these new obligations and embedding them into recruitment, onboarding, and workplace practices, will be crucial to ensuring both compliance and fairness.

Seasonal Hiring and the Pressure to Scale

A common pitfall during this period is rushing recruitment and onboarding. When large numbers of workers are engaged in a short timeframe, businesses sometimes overlook award coverage, pay rate verification, or proper induction procedures. These gaps can quickly escalate into disputes, especially as new laws heighten scrutiny around pay equity and working conditions. Key preparation by finalising rosters, clarifying employment status, auditing pay arrangements and ensuring compliance with relevant industrial instruments, can help prevent these issues before they arise.

The Full Effect of “Same Job, Same Pay”

The introduction of the Same Job, Same Pay regime has brought new expectations for businesses relying on labour hire. In essence, labour hire workers are now entitled to receive at least the same pay and conditions as employees directly engaged by the host employer to perform equivalent duties. The reform seeks to eliminate situations where labour hire was used to undercut enterprise agreement rates.

To enforce this, the FWC can now make a Regulated Labour Hire Arrangement Order (RLHA Order) upon application by an employee, union, or “regulated host”. Such an order compels the labour hire provider to pay its employees at least the protected rate of pay applicable to the host employer.

The FWC must make an RLHA Order where:

• An employer supplies regulated employees to perform work for a regulated host;

• The host’s enterprise agreement would apply to those employees if they were directly employed; and

• The host is not a small business employer.

However, the Commission may refuse to make an order if the arrangement is more properly characterised as the provision of a service rather than the supply of labour, or if it is not fair and reasonable in the circumstances to do so.

Non-compliance can result in enforcement action by the Fair Work Commission, including back payments, penalties and public orders. For many businesses, this has prompted a reassessment of labour hire practices, not as a cost-saving measure, but as a legitimate tool for workforce flexibility that must operate on equal footing with direct employment.

As the first holiday season to be governed by these provisions, the coming months represent a critical test of how effectively employers have adapted. Those who have proactively reviewed their labour hire contracts and pay structures will be best positioned to navigate the season without disruption.

The Bengalla Mining Decision

The FWC’s decision in Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 provides an adversarial example of this regime in action. The Commission made RLHA Orders covering labour hire workers employed by CoreStaff NSW Pty Ltd and Skilled Workforce Solutions (NSW) Pty Ltd who were supplying labour to Bengalla Mining Company.

Bengalla and its labour hire partners opposed the orders, arguing that calculating the “protected rate of pay” was impractical and could result in overcompensation, as their enterprise agreement only contemplated full-time employees. They also submitted that making such an order was “not fair and reasonable” and, in one instance, that it would constitute an acquisition of property contrary to section 51(xxxi) of the Australian Constitution.

The FWC rejected these arguments. It found that while the protected rate might require estimation, the significant pay gap between labour hire and direct employees outweighed the employers’ concerns. The Commission concluded that potential “overcompensation” must be viewed in the broader context of achieving parity and fairness.

This decision highlights the high threshold employers face in resisting RLHA Orders. The Commission’s emphasis on equity and the purpose of the legislation signals that “Same Job, Same Pay” orders will be readily granted where labour hire workers perform substantively similar work to direct employees.

Maintaining Workplace Culture and Wellbeing

Beyond compliance, the festive season presents unique cultural and human challenges. Increased workloads, end-of-year fatigue, and the influx of unfamiliar faces can strain even the strongest workplace environments. Managers must find ways to sustain morale and uphold professional standards while still fostering celebration and connection.

Creating an inclusive culture is especially important when integrating labour hire and temporary staff. These workers often feel peripheral to the core team, particularly when excluded from communication or social events. Simple measures such as including all staff in team briefings and acknowledging their contributions can make a significant difference in engagement and productivity.

Workplace celebrations also require careful management. Employers should remind all staff of behavioural expectations, particularly regarding alcohol consumption, discrimination, and harassment. A brief but clear reminder before end-of-year gatherings can help prevent misconduct and protect both individuals and the organisation.

This need for clarity is especially critical if employers intend to change or implement new workplace policies ahead of the festive season, such as updating a code of conduct or enforcing a zero-tolerance drug and alcohol policy. The recent decision in Hancock v Sydney International Container Terminals Pty Limited [2025] FWC 516 serves as a powerful cautionary tale in this regard. In this case, an employee was dismissed for breaching a newly implemented zero-tolerance (0.00 BAC) alcohol policy, which had been changed from a previous 0.02% limit.

While the Commission found the employee did breach the policy and there was a valid reason for dismissal, the dismissal was ultimately ruled harsh and unreasonable, and the employee was reinstated. The core issue was the employer's failure to adequately communicate the significant change. The FWC found that methods like sending the new policy to personal email addresses and brief mentions in "toolbox talks" were insufficient to ensure employees were actually aware of and understood such a critical new rule. For employers preparing for holiday events, Hancock underscores that if they wish to rely on a policy for disciplinary action, they must be able to prove it was clearly and effectively communicated, and that employees understood the new expectations.

The operational pressures of the holiday season inherently increase work health and safety (WHS) risks. Fatigue, in particular, becomes a significant hazard in industries with extended trading hours or high-demand shift work . Employers hold a primary, non-delegable duty of care to ensure the safety of all workers, and this is amplified when managing a transient workforce.

Temporary and labour hire staff are often more vulnerable as they may be less familiar with internal safety procedures or hesitant to report hazards. It is critical that WHS inductions are not skipped or rushed, even during the peak hiring period. Regulators actively scrutinise fatigue management practices, and a failure to provide adequate breaks, manage rosters, or prevent excessive hours can lead to serious incidents and significant penalties, entirely separate from wage compliance issues.

Finally, employers should be mindful of employee wellbeing. Encouraging breaks, monitoring fatigue, and providing adequate supervision are critical, especially in industries like hospitality and logistics where long shifts are common. Maintaining a safe and supportive environment not only fulfils legal duties but strengthens loyalty and reputation going into the new year.

Ultimately, businesses that treat their compliance and cultural obligations as core components of their seasonal strategy, rather than as administrative afterthoughts, will be the ones who navigate the festive rush successfully. Proactive preparation not only mitigates legal risk but also builds a more resilient, engaged, and safe workforce, strengthening the organisation's reputation long after the holiday period has concluded.

ABOUT THE AUTHOR

Maja is a dedicated and driven paralegal who assists in employment law and general commercial litigation. With a strong foundation in legal research, drafting and client support, she brings both technical expertise and interpersonal skills to her work, demonstrating a high level of attention to detail and a proactive approach to every task. Maja’s ability to combine analytical thinking with effective communication allows her to support legal teams and deliver quality outcomes for clients.

Currently completing a Bachelor of Laws and a Bachelor of Commerce, majoring in Human Resource Management, at the University of New South Wales, Maja is passionate about applying her legal knowledge in a practical context while continuing to develop her skills in a dynamic and fast-paced environment.