Class actions undermined as One Nation sells out casuals


Thousands of casual coal miners will be denied justice after the Morrison Government and One Nation teamed up to push through laws that overturn our union’s important court wins giving rights to casuals.

The Government was forced to ditch much of its anti-worker IR Omnibus Bill due to lack of support from cross-benchers, but passed new laws on casualisation with the support of One Nation Senators Malcolm Roberts and Pauline Hanson.

The changes were explicitly designed to overturn rights for casual mineworkers along with opportunities for backpaid entitlements, which were delivered by the Skene and Rossato Federal Court rulings.

Our union has spent many years and substantial amounts of money proving in court what is well known across our coalfields.

That is, that mining and labour hire companies have for years been ripping off casual mineworkers whose jobs are, in real terms, permanent jobs.

The landmark Skene and Rossato decisions determined that casual mineworkers with full-time hours and rosters set many months or a year in advance were not genuine casuals, and that they deserved permanent entitlements like annual leave.

They found it was the reality of the work arrangements that determined whether a worker was casual or permanent, regardless of the words in the contract. The vast majority of mining casuals work regular full-time hours on rosters set many months in advance.

Workers across the coal industry have been buoyed by these successes which clarify that the ‘permanent casual’ work model is unlawful.

These rulings opened up the opportunity for backpay claims and have underpinned class actions aimed at winning justice for exploited casuals through securing backpaid leave entitlements.

Our union has launched one such class action against WorkPac and class action law firms have launched several others. But these class actions – and future claims for rightful compensation – have been dealt a cruel blow by the new casual provisions.

The new legislation enshrines a definition of casual in the Fair Work Act based on the words in the employment contract, not the reality of the working conditions.

The definition says in part: “The question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party”.

This definition is specifically designed to protect employers from facing the financial consequences of unlawfully employing permanent workers as casuals over many years – and allow them to continue doing so.

While our legal team will pursue every option in regards to our current class action, it is likely to be significantly impacted by the new legislation which applies the new definition of ‘casual’

retrospectively.

That means that even though the Federal Court found that casual coal miners were not genuine casuals, the Government has changed the law to make it legal – even for those employed as casuals years ago.

Meanwhile, WorkPac’s appeal against the Rossato decision currently before the High Court will proceed, with hearings in May, however any broader application of the decision will be severely limited.

In short, says National Legal Director Alex Bukarica, all casual miners have been sold out by the new laws.

“These changes have sold out the interests of tens of thousands of workers and only benefit labour hire companies and big business.

“All our hard work and investment over many years to clarify the law and win justice for casuals has been severely compromised by a vote in Parliament.

“The Morrison Government and One Nation have shown their true colours. We will keep fighting for casuals but the only way to fix these unfair laws now is a change of government.”


Back to issue: March 2021