THE mine workers' union has launched a class action against a major labour hire firm to win back at least $12 million it says is owed to members who were "mis-classified" as casuals.
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The union sees the Federal Court case against WorkPac as a major step in the push back against the growing use of casual labour in the industry.
This has led to "casual" contract employees working beside permanent employees on the same rosters and doing the same work for as little as half the pay.
But the action has been questioned by some who say the union allowed casual employment to take hold, by signing off on the enterprise agreements it is now questioning - pointing out that casual employment is supposedly prohibited under the terms of the coal industry's main award.
They point to union criticism of a similar and bigger class action lodged in the same court in June last year by a Canberra law firm.
That court case has injured former Mount Arthur mine worker Simon Turner - who first spoke out publicly against the union's role in casualisation in 2016 - as the lead applicant.
Employers are also concerned, with the Australian Industry Group repeating its call for changes to the Fair Work Act to remove "uncertainty" about casual employment.
The main industry body, the Minerals Council of NSW, said the class action and its related legal cases had not been raised by member companies.
"However, we are aware some of the commentary relates to the sector and continue to monitor developments," a minerals council spokesperson said.
The Construction, Forestry, Maritime, Mining and Energy Union's class action was announced on Wednesday by the union's national president, Tony Maher, who said it followed a Federal Court ruling last year.
"The decision there was that casual coal miners in regular on-going employment with advance fixed rosters were not legally casual workers and were entitled to paid leave," Mr Maher said.
The case in question was one of a series brought by the union on behalf of a Queensland fly-in-fly-out miner, Paul Skene, who was employed by a labour-hire firm, WorkPac.
The WorkPac v Skene judgement has sent shockwaves through the industrial relations sector, with major employer concerns about flow-on judgements and so-called "double-dipping" of entitlements.
WorkPac is also the target of the union's case through law firm Slater and Gordon, with a Mount Thorley Warkworth mine worker, Ben Renyard, as lead applicant.
"The reality of coal mining these days is that the only jobs available are casual labour hire," Mr Renyard said.
"I hoped it would be a stepping stone to a permanent job.
"At Mount Thorley Warkworth, I worked on a crew alongside permanent workers on the same annual roster with the same supervisor, but I got less pay and no entitlements like annual leave or sick leave.
"As a casual you are treated like a second-class citizen.
I hope this class action puts the pressure on employers to stop exploiting casual workers."
Mr Maher said more than 600 members, whose annual leave alone entitlements alone were more than $12 million, had expressed interest in taking part.
"Unlike class action law suits funded by profit-driven litigation funders, every single cent recovered by the union's class action will go directly to the affected workers," Mr Maher said.
Adero principal Rory Markham said the simple truth was that the ruling Black Coal Industry Award (2010) only permitted casual employment for specified "staff" roles, not production or maintenance workers.
"If the CFMMEU wants to stop the 'cancer of casualisation', it should stop the hypocrisy, and stop endorsing the approval of enterprise agreements that undercut the award by allowing casual employment," Mr Markham said.
He said most such agreements were endorsed by the union, including a 2019 enterprise agreement with WorkPac, the very company it was now mounting a class action against.
Mineworker Stuart Bonds, the One Nation candidate who won 21.6 per cent of the primary vote in May against Labor frontbencher Joel Fitzgibbon, said casual labour had been a major campaign talking point.
He also called the union class action hypocritical, saying it was not until he studied Fair Work Commission transcripts and other documents shown to him by Simon Turner that he realised the role the union had played.
"The only way those agreements get through is because union officials have signed off on them," Mr Bonds said.
"There have been times when they have objected in the commission and had them stopped, but not in the ones they are complaining about now."
Union district president Peter Jordan said it was "a nonsense to blame the union for mining companies' aggressive push to outsource their permanent workforce to casual labour hire".
"We have fought hard to protect permanent jobs and prevent casual exploitation," Mr Jordan said.
"The union cannot prevent EBAs (enterprise agreements) being approved by the Fair Work Commission if workers vote them up. They are approved by the Commission whether or not the union is involved.
"Where we have been a party to labour hire agreements it has been to negotiate better pay and conditions for labour hire workers than they have received under non-union agreements, for example better hourly rates."
Referring to Adero, he said "profit-driven litigation funders running class actions do nothing to improve conditions for mineworkers".
"They are piggy-backing on legal wins run and funded by the union to make money from casual exploitation."
Mr Turner disagreed with this description, saying the Adero court action came about because of his campaign to alert various regulators and authorities to what was happening "illegally" in the industry because the award said only selected categories of "staff" positions could be filled by casuals.
"Enterprise agreements are supposed to build on the conditions in awards, not undermine them as these agreements do," Mr Turner said.
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