THE federal government is considering an appeal against a Federal Court decision that the mineworkers' union is claiming as a big win over Canberra in the coal mining "casuals" debate.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
The CFMEU won the case after appealing a lower tribunal ruling on the amount of redundancy payment owed to a mine worker from the SubZero group of labour hire firms that had receivers and administrators appointed in 2016. SubZero had contracts at various mines including Bengalla at Muswellbrook.
CFMEU district president Peter Jordan said it was "another powerful legal blow to the shameful 'permanent casual' labour hire rort".
The Australian Industry Group yesterday downplayed the significance of the decision, saying it was unlikely to flow on to other cases because the employees in question were employed on common law contracts, not enterprise agreements.
Mount Arthur "casuals" class action lead claimant Simon Turner said the decision had relevance for union-negotiated enterprise agreements by confirming that casual mine work was "contrary to the [Black Coal] Award, and therefore contrary to the Fair Work Act".
Friday's judgement began an important few days for the coal industry, with BHP using its half-year results yesterday to comment on "Chinese market uncertainty" and "restrictions on coal imports into China" as it posted a half-year profit of $US3.9 billion ($4.9 billion), dragged down, it said, by previously publicised write-downs at its Mount Arthur mine, which it has been trying to sell without success.
Energy coal prices recovered from their COVID-19 induced lows late in the 2020 calendar year, assisted by a pick-up in demand due to cold weather in North Asia and a bounce in Indian industrial activity. Chinas policy in respect of energy coal imports remains a key uncertainty.
- BHP half yearly report yesterday
And with debate under way in Canberra over Industrial Relations Minister Christian Porter's reform bill, Treasurer Josh Frydenberg announced he had accepted National Competition Council advice that will allow the Port of Newcastle to set its own prices to visiting coal ships, outside of ACCC competition oversight.
The subject of port pricing for navigation and berthing charges has been the subject of various investigations since the Port of Newcastle was privatised in 2014 and the new owners lifted charges substantially soon after.
The coal industry objected to what it saw as price gouging, while Port of Newcastle said it was simply bringing prices back to market level after years of under-charging when the port was state-owned.
Yesterday, PoN said it welcomed the treasurer's decision not to "declare" its services, "particularly in light of the current significant uncertainty" on potential infrastructure investments at the port - understood to be a reference to the long-mooted container terminal.
Minerals Council of NSW chief executive Stephen Galilee, however, said the decision was "disappointing but not surprising given the weakness of the current regulatory framework for monopoly infrastructure providers in Australia".
As a sign of the potential ramifications of the CFMEU's claimed victory in the Federal Court, the federal Attorney-General and Minister for Industrial Relations, Christian Porter, told the Newcastle Herald yesterday that his department would "closely examine" the decision before determining whether to lodge an appeal within the 28-day window.
The case is an appeal of an Administrative Appeals Tribunal case brought in the name of a mine worker, Kyle Warren, against the secretary of the federal Department of Small Business.
Hearings in October 2018 looked at whether "casual loading payments ... can be offset against National Employment Standards" and what should happen because the "applicant [was] employed on a full-time basis" but under a "contract of employment [that] purported to provide for casual employment".
In January 2019, the tribunal ordered the original "reviewable" decision to be sent back to the department for reconsideration in light of his reasons.
On Friday, Justice Wheelahan ordered that decision be set aside, with the case to be resubmitted and reheard and "further evidence" taken to "resolve the calculations of the applicant's entitlement to an advance under the FEG Act".
Mr Porter said yesterday that his IR Omnibus Bill - being debated this week - provided "a clear definition of casual work".
"Where an employee has been paid an identifiable casual loading to compensate for identifiable entitlements such as annual leave, the Bill will also require that those loading amounts be able to offset against any amounts found payable for the relevant entitlement, which the government considers is the fairest approach," Mr Porter said.
CFMEU district president Peter Jordan said the SubZero employees worked as permanents but were engaged under a contract that described their employment as casual, with a flat hourly rate that claimed to incorporate a 25 per cent casual loading.
Mr Jordan said that when SubZero went into insolvency, employees made redundancy payment claims from FEG, which recognised them as permanent but withheld the 25 per cent.
"The union has has fought this through the courts, culminating in this ruling, that it is wrong to consider the 25 per cent casual loading as an offset of the rights these workers had as permanent employees," Mr Jordan said.
At Mount Arthur, BHP reported revenues of $US358 million for the six months to December 31, down from $480 million in the same period in 2019. It booked an after-tax loss for the mine of $US482 million.
READ ALSO:
For faster access to the latest Newcastle news download our NEWCASTLE HERALD APP and sign up for breaking news, sport and what's on sent directly to your email.
