WorkPac is one of Australia’s largest labour hire companies with more than 3,000 employees in the coal mining industry alone.
The class action against WorkPac has been brought in the name of Hunter Valley mineworker Ben Renyard, who worked for three years as a casual on a flat hourly rate for WorkPac at Mount Thorley Warkworth mine, but it is for the benefit of all affected members.
Importantly, the CFMEU class action is being fully funded by the union and there is no additional cost to union members for taking part in the action.
The CFMEU class action alleges that WorkPac has underpaid employees as a result of the company routinely misclassifying mine workers as ‘casuals’ and avoiding paying entitlements.
We are relying on the landmark 2018 Skene case which was also run and financed by the CFMEU Mining and Energy Division.
Paul Skene worked for almost two years at the Clermont coal mine in central Queensland as a ‘casual’ haul truck driver. However, there was nothing ‘casual’ about his work arrangements.
Paul Skene worked the same 7-day roster as the permanent employees at the mine and was effectively treated as a permanent employee in that he was expected to turn up for work on every day that his crew was rostered to work. However, unlike the permanent members of his crew, Paul Skene was paid a flat hourly rate for all hours worked and did not receive annual leave, sick leave or other entitlements.
The Federal Court of Australia found that Paul Skene was not really a casual employee. Accordingly, WorkPac was ordered to pay substantial back-pay for unpaid annual leave.
We think there are hundreds, if not thousands, of existing and former WorkPac employees in a similar situation to Paul Skene. This case is about obtaining justice for those workers.
Find out more about the WorkPac v Skene decision:
The class action filed on behalf of members of the CFMEU employed by WorkPac in the coal mining industry was lodged in the Federal Court of Australia in August 2019.
Unfortunately, the class action application has been subject to repeated delays. These delays are partly due to the serious restrictions in Court processes caused by COVID-19; and are partly the result of negotiations that have had to occur with the legal representatives of the non-CFMEU class action, which concern the manner in which the respective applications will proceed.
In this regard, the CFMEU continues to advocate for a case management hearing to occur as soon as practical and for the CFMEU application to proceed first. However, these matters are beyond our control as they are ultimately decisions of the Court.
As previously reported, WorkPac has applied for special leave to appeal the Rossato judgment in the High Court of Australia. There has been no indication yet from the High Court as to whether the special leave application will be successful. However, if WorkPac are granted special leave, it will mean the actual appeal will probably be heard in 2021 and it is possible that the class action will be delayed until that decision is handed down.
Members will continue to updated on any significant developments.
We appreciate your patience and can assure you that we are doing everything in our power to bring this litigation to a conclusion as soon as practical.
National Legal Director