WorkPac - Rossato "casual mineworkers" case to move to the High Court after appeal granted

The Australian Mines and Metals Association and the Australian Industry Group have both consistently criticised the Robert Rossato verdict as well as a similar previous case lost by WorkPac against a CFMEU-backed mineworker, Paul Skene, saying they would add billions of dollars to employer costs, if not overturned.

Earlier in the case: Labour hire firm WorkPac loses Federal Court full court case against Queensland miner Robert Rossato

AI Group chief executive Angus Willox said yesterday: "The Federal Court's decision creates the potential for 'double-dipping' where an employee can effectively be paid twice for leave entitlements already included in the casual loading."

AMMA chief executive Steve Knott said: "The precedent set by the Federal Court in both the Rossato and Skene decisions overturned decades of common understanding about casual employment and suggested casuals could have two bites of the cherry - higher hourly pay rates and entitlements reserved for permanent employees."

On this issue: Employers rally crossbenchers on casuals

But the CFMEU and the lead claimant of another high-profile "permanent casuals" class action - former Mount Arthur mineworker Simon Turner - both say that WorkPac, the employer bodies and the federal government (which has supported WorkPac) have been misrepresenting the cases.

The national president of the union's mining division, Tony Maher, said the double-dipping claims were "a distraction from the "unfair and illegal employment model they've embraced".

"Casuals in mining get paid substantially less than permanents," Mr Maher said.

"This is not about double-dipping, it's about employers wanting the benefits of a full-time, permanent workforce without paying full-time permanent entitlements. They've been ripping workers off for years and now that the law has finally caught up with them they are trying to claim casual workers are the greedy ones."

Mr Turner said: "Casuals in every other industry have a casual legal pay rate and are paid that. The coal industry does not, and we have not been paid a casual loading.

"If they are talking about flow-on costs of $14 billion to other employers, doesn't that show the extent of the wage theft, with the federal government the largest user of labour hire in the country?"

Mr Knott from AMMA said the issue emerged from coal, but was actually a problem for the broader economy, especially those employing higher levels of casuals, including hospitality and retail.

"The whole business community is extremely concerned as it exposes all employers to up to six years of back-pay claims."

Summarising the history of the cases, the CFMEU says a full bench of the Federal Court found against Workpac in the Workpac v Rossato case, which was handed down in May this year.

"It upholds key principles of the landmark August 2018 WorkPac v Skene decision, namely that work which is regular, on-going and permanent in nature is not genuinely 'casual' and therefore attracts entitlements such as paid annual leave," the CFMEU says,

"The full bench also ruled that WorkPac could not 'set off' money supposedly paid as casual loading against leave entitlements owed."

The union says the Skene judgement was a blow to WorkPac.

Instead of appealing it to the High Court, the company began a new case in the Federal Court, this time with "handpicked" employee Robert Rossato, "in the hope of undermining the Skene decision's definition of "casual" as meaning "intermittent and irregular", and to upset the "set off" argument to reduce their liability for back pay claims.

But the Federal Court again rejected WorkPac's arguments and found Mr Rossato, like Mr Skene, was not a genuine casual and was also eligible for leave entitlements.

The AIG Group, however, sees the cases in a different light.

Yesterday, a spokesperson said "casual labour hire employees in the coal mining industry are typically paid wage rates and conditions that far exceed the legal minimum in the Black Coal Mining Industry Award", which was already a "generous" award.

AIG said casual labour hire employees knew the rates when they accepted them and most were "happy with their wage rates and conditions" and most did not want to be made permanent".

"The fact that labour hire employees in the coal mining industry, on average, may be paid less by their employer than the rate paid by the average employee of a coal mining company does not mean that the employees are being treated unfairly," AIG says.

"It is clear from the above that this is not the case.

"Both Mr Skene and Mr Rossato were engaged under employment contracts that stated that they were casual employees.

"Both were engaged under an enterprise agreement which the CFMMEU was a party to.

"Both were paid a casual loaded rate. The claims pursued in the Federal Court constitute 'double dipping'."

The federal government also has an interest in the case with the attorney general and industrial relations minister, Christian Porter, confirming after WorkPac lost the Rossato case that he was applying to intervene in the case, which would allow the government to mount legal arguments and tender evidence.

Mr Porter said in August that the "unfortunate effect" of the Full Federal Court decision was its "potential to expose businesses to significant financial liability during a period where businesses are facing their greatest ever challenge due to the ongoing COVID-19 pandemic".

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