August 23, 2021
Employers, the Morrison Government and One Nation have teamed up to dash the hopes of exploited casuals seeking compensation through our $12 million class action against labour hire company Workpac.
A High Court decision in the WorkPac v Rossato appeal earlier this month was the nail in the coffin for our union’s efforts to challenge the legality of the widespread replacement of permanent mining jobs with casual labour hire.
The difficult decision was made this week to discontinue our landmark class action launched in August 2019 due to the lack of a realistic chance of success.
https://commoncause.cfmeu.org.au/2019/08/20/union-class-action-seeks-millions-for-casual-miners/
The 600 eligible members who registered to participate were owed at least $12 million in entitlements and the action would have paved the way for claims by other groups of current and former casual coal miners.
The High Court decision on 4 August was a very conservative judgment which wound back important wins for casuals established in the Skene and Rossato Federal Court decisions.
The High Court judges ruled against the commonsense definition of casual established in the Skene and Rossato cases, which was based on the reality of the work arrangements, and instead said the terms written in the contract were paramount.
The Morrison Government intervened in WorkPac’s High Court Appeal on the side of employers, arguing that casuals exploited in long-term ongoing jobs should not be able to claim compensation for lost entitlements.
While the High Court decision was deeply disappointing for coal miners desperate for change, the impact of the High Court decision was overshadowed by legislation already passed by the Morrison Government in March.
The legislation, passed with One Nation’s support in the stripped back IR Omnibus Bill, had already embedded an unfair definition of casual in the Fair Work Act and effectively blocked pathways to casual mineworkers for compensation.
General President Tony Maher said the union had fought long and hard through the courts to expose and end the ‘permanent casual’ rort in the mining industry.
“The Federal Court has twice upheld the commonsense principle that you can’t be a so-called ‘permanent casual’,” he said.
“However, the Morrison Government has been determined to do the bidding of big mining and labour hire companies and overturn sensible limits on casualisation through the IR Omnibus Bill and by supporting this appeal in the High Court.
“Thousands of casual coal miners have lost an avenue to claim entitlements and the hope of an end to the ‘permanent casual’ rort. The Morrison Government with the enthusiastic support of the Nationals and One Nation has made sure of this.”
The High Court decision, coupled with the new legislation on casuals, means that the landmark class action our union launched in August 2019 (link) has no realistic chance of success.
National Legal Director Alex Bukarica said the decision to discontinue the class action taken this week was a very dispiriting end to the union’s long legal battle to reverse the long-term, damaging trend of casualisation in the mining industry.
“We have been actively pursued the legality of casual labour hire arrangements in the courts for over 15 years, with a number of cases run in the Federal Court before the landmark Skene and Rossato judgments which were a game-changer for mineworkers.
“A tawdry political deal between One Nation and the LNP Government and legal manoeuvring via the contrived Rossato case have largely undone the legal gains we have obtained over the last decade.
“We have tried to change the law but we have now exhausted all legal avenues. Our only option now to end the ‘permanent casual’ rort is to change the Federal Government.
“The real solution to the misuse of casual employment is a proper definition in the Fair Work Act based on the reality of the job – not just words in a contract – and a commitment to same job, same pay for labour hire workers.”
Watch Senator Tony Sheldon’s attack on the labour hire rort and the Morrison Government’s support of mining companies rather than mineworkers