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Northern Mining & NSW Energy

NSW South Western




Western Australia

Grahame Kelly General Secretary

Morrison Government wants new laws to stop casual claims

February 17, 2020

Exploitation of labour hire workers remains a major problem across the coal mining industry. You all know the situation: mineworkers side by side, doing the same job, on the same roster – but some earn much less with no job security because they are labour hire.

To get justice for casual mineworkers we need fairer workplace laws. But when the Morrison Government talks about changing the law it’s only to make things harder for casuals.

Outsourcing a significant portion of the workforce to lower-paid labour hire is a damaging and divisive business model that our Union has been fighting hard to stop. Mining companies should simply not be allowed to ignore union-negotiated site agreements and replace permanent jobs with casual labour hire.

However, the law currently doesn’t prevent it. Under federal employment law, the Fair Work Commission (FWC) can approve enterprise agreements that pay significantly less than union collective site agreements, so long as it judges that workers are better off overall than the Black Coal Mining Industry Award. That includes allowing for casual work, even though the Black Coal Award doesn’t allow for casual work. Despite arguments from the union, the FWC doesn’t consider casual work to be a detriment to workers, so long as they receive a casual loading.

To make things worse, the casual loading only has to be applied to the Award, not to industry standard rates of pay that have been achieved over many years of union collective bargaining – leaving casuals with 30 to 40% less pay than permanents.

This state of affairs is terrible for the affected workers and their families, but it also has a flow-on economic cost to those communities and regions that depend on coal mining wages. We are looking forward to releasing a report next month that looks at how much the labour hire model is costing mining communities.

Ultimately, if we want justice for casuals in the mining industry, we need new laws to put an end to the ‘permanent casual’ employment model and stop the race to the bottom on wages. However, the Morrison Government has flagged introducing new legislation that would have the opposite effect, preventing exploited casuals from accessing entitlements.

In 2018, we had an important Federal Court win in the matter of our member Paul Skene against labour hire company WorkPac. The court agreed with Paul’s assessment that he was not a casual but was in fact a permanent employee. It found that Paul could not properly be considered a casual under the Fair Work Act due to the regular and continuous nature of his work on a fixed roster. He was therefore entitled to receive accrued annual pay on termination of his employment.

The decision sent employer groups into a frenzy, with claims it would lead to an epidemic of ‘double-dipping’ by greedy casual workers across the workforce, claiming backpaid entitlements when they had already received a ‘casual loading’.

This is just plain wrong. In the Skene case the court found that there was no identifiable ‘casual loading’. But equally, from a real-world perspective, Paul Skene was paid far less than the permanent employees he worked side by side with, even taking into account his flat-rate of pay. In which universe is that double-dipping?

Rather than do anything to address dodgy work practices and the widespread exploitation of casuals, the Morrison Government has backed employers trying to overturn this decision in court. Workpac launched a follow-up matter known as ‘Rossato’, hoping for a decision that finds casuals cannot claim entitlements. The Federal Government has intervened to support them.

Last week, Industrial Relations Minister Christian Porter flagged that if employers were unsuccessful in overturning the Skene decision through the Rossato case, he would look at new legislation to ‘clear up the casuals issue’. You can bet he’s not talking about clearing up the exploitative business model, rather ‘clearing up’ casuals’ right to claim backpay after being unlawfully employed.

With the coal industry in the spotlight, we need politicians not only willing to stand up for mining jobs, but for permanent, secure mining jobs on the conditions Union members have fought for and won over generations. We will keep holding them to account.


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