CLASS action lawyers and the CFMEU are considering the possibility of a High Court challenge to the gutted industrial relations bill that passed through Parliament on Monday, with its clauses on casual employment the only sections to survive.
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The Morrison government and employer groups are hailing the changes as a win to end years of uncertainty and conflict over the treatment of casual workers, but the CFMEU and the ALP have lashed the result, which came after One Nation senators Pauline Hanson and Malcolm Roberts voted with the government.
Senator Roberts' backing of the Coalition has also stunned One Nation's high-profile candidate for the seat of Hunter, coalminer Stuart Bonds, who said he was "disappointed with the party's position on the bill".
Also gutted was Simon Turner, the former Mount Arthur contract mineworker whose case Senator Roberts had elevated to a national issue through parliamentary speeches and other efforts in Canberra.
The vote comes with One Nation NSW upper house member and former Labor federal opposition leader, Mark Latham, due to speak at a fundraiser for Mr Bonds at Crowne Plaza Hunter Valley at Cessnock on Friday.
"From my perspective I've lost a battle but I haven't lost the war," Mr Bonds said yesterday of his fight to unseat Labor veteran Joel Fitzgibbon.
"I'm looking at the public's reaction to the Bill and I'll assess my options as things become clearer.
"As I've said since I took up this issue over two years ago, this issue needs to be looked at by a totally independent organisation because of the significant implications it has for very powerful corporations, unions and organisations within the federal government."
Mr Bonds said it was "obvious" now that One Nation's support for the government had given Labor and the CFMEU "a big stick to hit me with".
Mr Fitzgibbon said the vote reinforced his warnings about One Nation.
"Senator Roberts has confirmed that a vote for One Nation is a vote for Liberal and National Party MPs who are rarely on the side of working people," Mr Fitzgibbon said.
CFMEU northern district president Peter Jordan said Senator Roberts had "pretended to be a crusader for Hunter Valley coal miners then stabbed them in the back".
"We spent years in the courts proving that casual mineworkers were being ripped off and in a single vote One Nation and the Morrison government have overturned the landmark Skene and Rossato decisions.
"They define 'casual' based on words in the contract, not the reality of working conditions on the ground.
"They are specifically designed to protect employers from facing the consequences of unlawfully employing permanent workers as casual over many years.
"And allow them to continue doing so.
"There is no question that laws passed by the Government with One Nation's support are explicitly designed to overturn rights for casual mineworkers."
The IR reforms began as an "omnibus" bill covering multiple issues, but the only section to pass the Senate was one urged by employers as protection from class actions over alleged underpayment of casuals.
The Australian Industry Group applauded the new law as protection against "double dipping" by casuals who were now claiming annual leave and other benefits of permanent employment.
Mr Turner and Mr Bonds said "double dipping" claims were a ruse because "casual" mineworkers did not get an "identifiable 25 per cent casual loading" and their flat hourly rate didn't cover the value of leave and other entitlements to permanents.
Senator Roberts said yesterday that he understood that people were disappointed but did not believe they had been let down.
He said said more work was needed but the bill was a step in the right direction.
He hit back against union claims of betrayal, saying: "Where were the ALP and Hunter Valley CFMEU when I was fighting for casual miners in the Hunter?
"They were nowhere to be seen. Some were actively misrepresenting the situation and downplaying what we had discovered after we discovered the Hunter CFMEU actively enabled the abuse of casual miners."
Law firm Adero - which is running various class actions including one at Mount Arthur mine led by Mr Turner - says the law will likely be challenged.
"On a political level, the legislation also marks the first example of a material sovereign risk in this country," Adero principal Rory Markham said.
"Australia has never had a history of retrospective laws in the industrial relations context.
"It would be Adero's expectation that a High Court challenge to the constitutionality of the recent legislation will be run soon by an interested party, looking at whether the Commonwealth has acquired property on other than 'just terms'.
"This property being the accrued entitlements of a projected class of more than 1 million Australian workers.
"The Commonwealth's own estimates consider that more than $14 billion has now been taken from Australian workers who can no longer apply laws that existed before these changes: the very laws that have applied consistently since the Fair Work Act began on in 2009."
A spokesperson for the acting Industrial Relations Minister, Senator Michaelia Cash, raised an even larger figure, saying business faced additional costs of "up to $39 billion" without the law changes.
"Failure to address the double-dipping issue would be catastrophic for jobs and businesses. Businesses would otherwise face additional costs of up to $39 billion - an impost that would lead to thousands of job losses and business closures," Senator Cash's spokesperson said.
Senator Cash is acting in the role in place of minister Christian Porter, who has taken leave from parliament after denying an historical sexual assault allegation.
Mr Turner said the huge figures being tossed around showed the magnitude of the "rip offs of workers" by employers.
Mr Turner said the federal government was "the biggest user of labour hire in Australia and the bill was all about the government protecting itself" and the big mining companies.
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