Published: 16 Nov 2018

The Workpac v Skene decision was an important win in the Federal Court, finding that casual mineworkers in regular and continuous employment could claim leave entitlements as their work arrangements are effectively permanent. Employers and the Morrison Government are now trying to undermine the decision in court. More than ever, we need to change the rules to end the ‘permanent casual’ rort in mining.

What’s happening in court?

WorkPac did not appeal the Skene decision to the High Court. However, the company has initiated a new case in the Federal Court (WorkPac v Rossato) which they hope will effectively undermine the Skene decision.

IR Minister Kelly O’Dwyer has applied to intervene in the case, backing the employers’ position that casuals shouldn’t have rights to paid leave, even if they are effectively permanent employees. CFMEU Mining and Energy, as well as Paul Skene, have also applied to intervene in the case in order to protect the rights we have won for casual mineworkers.

The legal case is likely to have months to run and we will keep members updated with important developments.

Is the Union still pursuing backpay claims for members?

Yes. We have contacted all members who are current WorkPac employees in coal mining in order to deal with those claims first. We then plan to pursue claims for members who are former WorkPac employees, employees of other labour hire companies and non-coal mineworkers. However, claims are unlikely to be settled until there is an outcome in the Rossato matter as the decision in this case may impact on eligibility for entitlements.

Members should continue to collect relevant information about contracted work arrangements, length of service, roster details and any correspondence and paperwork provided by your employer in preparation.

Should I join a class action to claim entitlements?

No. The Union will represent the interests of members free of charge. Legal firms jumping on the back of the Union win in WorkPac v Skene have a business model that requires them to recover costs several times over before workers see any money from a settlement. We encourage mineworkers to exercise extreme caution and seek independent advice before signing anything. Only the Union can guarantee that the recovery of entitlements will be free of charge and that all money recovered will go to the employee. If you have affected co-workers who are not Union members, we will consider their claims if they join the Union. Any settlement for a class action will similarly depend on the outcome in the Rossato matter.

Will I have to take a pay cut if I change from casual to permanent?

Some labour hire companies, including WorkPac, are suggesting employees will have to take a pay cut of some 25% if they change from casual to permanent. This is just fearmongering.
While labour hire employees work under many different arrangements, our analysis shows that in many cases reverting to permanency on award rates would lead to a minimal difference in take-home pay compared with casual rates in labour hire agreements. Permanency also delivers significantly improved benefits, including paid leave and job security.

Casual labour hire workers are often paid above minimum rates in their agreement due to market demand. It is unlikely that labour hire companies would be able to fulfil their contractual obligations to supply labour if they followed through with drastic pay cuts, particularly as market conditions in the coal mining industry are currently good.

Employers in the mining industry should be employing people legally and fairly according to the nature of their work, which is mostly regular and on-going – not threatening workers with large pay cuts in return for their legal entitlements.

Is this issue only relevant in coal mining?

No. The Skene decision has most relevance to the coal mining industry as Paul Skene had work arrangements typical for the industry. WorkPac is also a major labour hire supplier in iron ore mining, where mineworkers have similar work arrangements.

The Skene decision is relevant where casual workers are provided with a fixed roster that sets out working days well into the future and have worked regular, full-time hours under that roster for an extended period of time. While the relevance of the Skene decision across the economy is still to be demonstrated, it could apply in any industry where the ‘permanent casual’ work model is prevalent.

For more information, contact your CFMEU Mining and Energy District Office