November 27, 2022
An important legal win by our union will make it harder for mining companies to use fixed and ‘maximum’ term contracts to avoid paying termination and redundancy entitlements.
In a decision concerning the termination of contractor mineworkers at Narrabri underground coal mine in NSW, the Fair Work Commission has ruled that if employers retain an unqualified right to terminate employment, a contract can’t be classified as ‘fixed term’.
The FWC also determined that employers can’t use ‘maximum term’ contracts described as running for the length of a project in circumstances where employees have no way of knowing when that project will come to an end.
Unfortunately, the decision did not result in redundancy payments for our affected members at Narrabri due to the particular circumstances of their employment.
However, it will have a significant impact across the industry, challenging the shift by employers to fixed and maximum term contracts to avoid offering permanent entitlements as laws have tightened over the use of long-term casuals.
In June 2020, workers employed by Falcon Mining (part of the Mastermyne Group) lost their jobs when Whitehaven terminated Falcon’s contract at Narrabri.
The Union’s application to the Fair Work Commission concerned the proper characterisation of employment and workers’ claims to a range of entitlements following the termination of employment.
The decision means that Falcon and other mining contractors and labour hire companies will have to offer permanent or other modes of employment if they would like to retain the right to terminate, or if the term of contract isn’t defined.
Jeremy McWilliams, Vice-President of the Northern Mining and NSW Energy District, said the decision in the long-running Falcon matter was significant in challenging an emerging form of exploitation across the industry.
“Fixed term is the new casual rort,” he said.
“When pursuing this case, we looked at workers’ contracts and proved that these workers were not actually fixed term, they were something else.
“It is often too easy for employers to manufacture circumstances to deprive employees of their redundancy entitlements. These wins will make it easier for the Union to pursue termination and redundancy entitlements for workers.”