Why instructing your labour hire agency may not satisfy your enterprise agreement
Telling your labour hire agency to "sort the pay out" may not be enough — the Fair Work Commission has just said so.
When an enterprise agreement promises that labour hire workers will be paid under that agreement, the employer can carry a duty to make sure it actually happens. Passing the instruction down the chain is not the same as ensuring the outcome.
That is the practical takeaway from a Fair Work Commission decision handed down on May 27, 2026, in a dispute between the United Workers' Union and Electrolux Home Products.
The work in question happens at Electrolux's distribution site in Beverley, South Australia. The site runs on a mix of direct employees, who are covered by the company's 2022 enterprise agreement, and labour hire workers supplied by Trojan Recruitment Group, who work for Trojan and sit outside the agreement.
At the centre sat Clause 13, which states that labour hire workers "will be paid in accordance with this agreement." The union asked the Commission, under section 739 of the Fair Work Act 2009, to settle what that means in real terms - given the labour hire workers and their employer are not covered by the document.
The union's case was that before October 2025 the Trojan workers got the agreement's base rates but did not accrue leave and were not paid casual loading in its place. It also questioned whether their work fell within the agreement's classifications.
Then the picture changed. On October 16, 2025, Electrolux directed Trojan to pay the casual labour hire workers the permanent base hourly rate under the 2022 agreement plus a 25% casual loading. The decision records that Electrolux did this "without making any admissions as to liability whatsoever." Trojan confirmed the new rates that same day. Electrolux then argued the dispute had effectively gone away.
Deputy President Hampton was not persuaded the matter was finished. He found a live dispute remained about what the clause requires, and he resolved it. His conclusion: where Electrolux uses labour hire workers for work that would otherwise fall under the 2022 agreement, it must ensure those workers are paid by their employer in line with the agreement. "Paid in accordance," he said, means payments calculated and made by applying the agreement's terms as if it covered them - including the Forklift Driver/Storeperson (C11) classification, the base rate and the casual loading.
He stopped short of going further. The Commission declined the union's detailed list of questions on specific penalty rates and duties, citing an insufficient factual basis and finding the dispute was no longer really about those items. Crucially, Hampton said any ruling on whether Electrolux breached the agreement before October 2025 belongs in a court, not the Commission - he made no breach finding.
He did note there was no evidence before him that Electrolux had taken steps with Trojan on its Clause 13 obligations before October 2025. On that basis, and from the Trojan payslips, he drew what he called a reasonable inference that whatever was done had not ensured the workers were paid under the agreement before that point. He recommended Electrolux now engage with Trojan so the affected workers and their employer are not left disadvantaged.
For HR and industrial relations leads, the lesson is clean and portable. A labour hire pay clause can create a duty to ensure - not just a duty to instruct. If your agreement says on-hire workers will be paid under it, check that the rates, classification and loadings are genuinely flowing through, and keep evidence that you have done so. Assuming the agency has it handled may not hold up.
