CFMMEU abandons Workpac class action

Public news

The CFMMEU's mining and energy division has dropped its class action seeking backpay for casual workers from labour hire company Workpac, following the High Court's recent decision in Rossato and the passage of retrospective laws in March.

The class action was seeking to recover an estimated $16 million in entitlements for about 900 current and former casual miners employed by Workpac.

The union said it discontinued the Renyard v Workpac class action due to legal advice it could not succeed in the wake of the Rossato judgment and retrospective laws affecting casual workers introduced by the Morrison Government.

Earlier this month, the High Court ruled in the Rossato proceeding that contracts are decisive in determining employment types, in a decision that was hailed by employers but criticised by unions, which we reported on in earlier updates.

In March, the Government won Senate approval for a stripped-back version of its IR Omnibus Bill, which defined casuals based only on the original offer made to the employee, without taking into account "any subsequent conduct of the parties", which we reported on in earlier updates.

The legislation also gave employers protection against "double-dipping" claims by long-term casuals and a scheme for casual employees to request conversion to permanent status.

CFMMEU mining and energy division general president Tony Maher said that casual coal mineworkers hoped the class action would deliver justice, compensation and an end to the "permanent casual" employment model in the coal industry.

"We are extremely disappointed to discontinue this landmark class action on behalf of casual miners performing jobs that were permanent in nature, but without the security and entitlements of permanency," Maher said.

"Casual miners are rightfully angry that as soon as we had some legal wins exposing and clamping down on the 'permanent casual' rort, employers and the Morrison Government teamed up to retrospectively change the law."

Maher said the High Court decision was the "nail in the coffin" for the class action, but its viability was effectively extinguished by the IR Omnibus Bill.

The CFMMEU launched its class action in 2019 after the 2018 Federal Court judgment in Workpac v Skene, which found that casual coal mineworkers in regular continuing employment with advance fixed rosters were not legally casual workers and were entitled to paid leave.

The CFMMEU-funded class action covered union members who had been employed by Workpac as a casual in the mining industry since 2013 on long-term advance rosters with a flat hourly rate.

Maher said his union had fought the "permanent casual" employment model in the courts for more than 15 years.

"We have exposed the rort and made it a national issue."

"But with a Federal Government determined to do the bidding of the big mining and labour hire companies, the only way now to address this issue is by changing the government."

Adero is yet to say whether it will drop its competing class action on behalf of black coal mineworkers allegedly misclassified as casuals by Workpac.

The law firm has previously said it is investigating a possible challenge as to the constitutionality of permitting employers to offset casual loading against the unpaid leave entitlements of workers later held to be permanent.

The MTA will continue to monitor and update on the position around class actions, but if members have any queries, please contact the WR team on wr@mtasant.com.au, or on 8291 2000.