Nov 26, 2020

Casual mineworker case takes another turn

Casual mineworker case takes another turn

A landmark case on entitlements for casual mineworkers is set for another round in court after a decision which employers have welcomed and unionists described as a blow.

The High Court of Australia today granted special leave for WorkPac to appeal the Federal Court’s Rossato decision.

WorkPac v Rossato, like the earlier WorkPac v Skene decision, resulted in findings that the working conditions of the coal workers concerned meant they could not genuinely be considered as casuals, despite being employed as such, and that they were therefore owed the paid leave entitlements of a permanent employee.

The High Court appeal delays resolution of a class action being brought by CFMEU Mining and Energy for compensation for members it says have been unlawfully employed as casual mineworkers by WorkPac. 

Chief executive of resource sector employers’ group the AMMA, Steve Knott, said the Rossato ‘double dipping’ decision would be one of the most important employment law decisions that the High Court had had to consider.

“The precedent set by the Federal Court in both the Rossato and Skene decisions overturned decades of common understanding about casual employment and suggested casuals could have two bites of the cherry – higher hourly pay rates and entitlements reserved for permanent employees,” he said.

“The High Court doesn’t grant special leave to appeal on a whim. Today’s development shows there are serious and significant concerns with the Federal Court’s judgement that must be examined by the highest court in the land.

“Should the Federal Court’s decision stand, thousands of employers across all sectors of the economy would face the threat of backpay claims, estimated to be at least $18 billion.

“This is an imminent danger to the economy. Several massive class action lawsuits are already on foot, many driven by international professional litigants looking to cash in on Australian businesses failing.”

CFMEU Mining and Energy general president Tony Maher said today’s decision was a blow for casual mineworkers that would delay justice already long overdue. 

“The Federal Court has twice confirmed that the widespread ‘permanent casual’ rort in mining is not only unfair, it is also unlawful,” said Mr Maher. 

“The model embraced enthusiastically by big mining and labour hire companies is to replace good permanent jobs with lower-paid casual jobs and it’s a straight-out scam. 

“Casual mineworkers do the same work on the same rosters, but they are paid about 30 per cent less and have no job security or leave entitlements.

“Employers have put forward hysterical claims about the cost to business. But this toxic employment practice also comes at a staggering cost to workers, families and communities.”

CFMEU Mining and Energy plans to defend the findings of the Rossato and Skene Federal Court judgments. 

Meanwhile the AMMA is urging the Australian Government to deal with the issue through legislation and deliver the certainty it says the private sector needs to hire and invest.