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Northern Mining & NSW Energy

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Western Australia

Labour hire win: From SubZero to hero

February 22, 2021

Coal miner Kyle Warren and more than 100 of his workmates who lost their jobs when labour hire contractor SubZero went bust are now tens of thousands of dollars better off due to a big court win by our Union.

SubZero employees worked permanent rosters at Bengalla Mine in the Hunter Valley, but were engaged under common law contracts that described their employment as casual with a flat hourly rate of pay. This rate was claimed to incorporate a 25 per cent casual loading.

When SubZero went into insolvency its employees made claims under the Fair Entitlements Guarantee (FEG) scheme. FEG recognised the workers were permanent, and not casual, but withheld the 25 per cent so-called casual loading from their claims.

Our Union fought this through the courts, culminating in today’s Federal Court ruling that it is wrong to consider the 25 per cent casual loading as an offset of the rights these workers had as permanent employees.

“This is yet another powerful legal blow to the shameful ’permanent casual’ labour hire rort in this country,” said Northern District Peter Jordan.

“It’s a fantastic victory for these mine workers who are now going to be tens of thousands of dollars better off on average. And we’ve also established a precedent that will apply to future labour hire companies that go into insolvency.

“The courts have been loud and clear. In Australia, if you work somewhere permanently and predictably, then you’re a permanent. That entitles you to a package of rights and conditions.

“The Morrison Government, instead of trying to legalise the rort through its IR Omnibus bill, should try and stamp the practise out.”

Peter Jordan said the union would continue to fight for labour hire contractors in the industry.

Lead claimant Kyle Warren, who now works at Mt Pleasant coal mine, said the result was great news. While he welcomes the severance pay windfall, the confirmation from the court that he was being exploited as a casual is more important to him.

“There were a lot of us in the industry at that time and we were getting rorted. If you’re on a permanent roster, you should get permanent conditions.

“It’s a historic case and I’m very happy with the outcome.”

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