May 21, 2020

Landmark ruling on casual mining roles

Landmark ruling on casual mining roles

A Federal Court ruling on ‘permanent casual’ work has confirmed some of those roles should attract entitlements such as paid annual leave. 

Mining union the CFMEU says the WorkPac v Rossato decision upholds key principles of the 2018 WorkPac v Skene decision – namely that work which is regular, ongoing and permanent in nature is not genuinely ‘casual’.

“This is a fantastic decision that puts an end to the ‘permanent casual’ rort that has become a scourge in the coal mining industry and across the workforce,” CFMEU national president Tony Maher said.

Damaging for business confidence- AMMA

But it has sparked alarm from resources employer group AMMA, which will be seeking amendments to the Fair Work Act in response.

“The position taken by the Federal Court in multiple decisions now, is that an employee can sign a casual employment contract and be paid a casual loading, but later claim to be owed permanent entitlements,” AMMA chief executive Steve Knott said.

AMMA chief executive Steve Knott.

“This is a remarkable position that is highly damaging to business confidence and will see more internationally-funded class action law firms, many with obscenely large contingency fees, circling Australian businesses like sharks.”

Coal worker Robert Rossato was employed at Glencore operations by labour hire company WorkPac under six consecutive contracts between July 2014 and April 2018.

The Federal Court ruled on Wednesday that Mr Rossato was a permanent worker for the purposes of the Fair Work Act despite being labelled casual in his contract.

It concluded he was entitled to the entitlements that he claimed with respect to paid annual leave, paid personal/carer’s leave paid compassionate leave and payment for public holidays.

WorkPac was not entitled to either restitution or to “set off” against its liabilities any of the payments made under the six contracts of employment, the court ruled.

Ruling paves way for more claims – CFMEU

The CFMEU says the decision will facilitate backpay claims for workers previously misclassified as casuals, including in the union’s own class action against WorkPac.

CFMEU national president Tony Maher.

Mr Maher said employers should now start employing people according to the objective nature of their work rather than their preferred label.

“(WorkPac v Rossato) is a decision that passes the pub test on what it means to be a casual and is consistent with community expectations that casual work is irregular and intermittent,” he said.

“Employers must now stop with the nonsense that calling a worker a casual makes them so.”

Mr Knott said the AMMA would urge the Morrison Government to amend the Fair Work Act to clearly define a casual employee as one that has been ‘engaged and paid as such’.

An important balance to this, he said, was to provide an automatic right for all casual employees working on a regular and systematic basis to convert to permanency after 12 months with the same employer.

“Casual employment and labour hire is a small but very important function of Australia’s labour market,” Mr Knott said.

“In the resources industry, where it comprises about 16 per cent of the total workforce, casual employment often provides a foot-in-the-door in entry level positions for people new to the industry.

“At the other end of the spectrum, highly-skilled employees often take well-paid casual contracts where their capabilities are in greatest demand.

“Until the Australian Parliament fixes this issue with a clear, common-sense definition of casual employment, businesses will remain reluctant to hire casuals or provide existing casual employees with any regularity in their working hours.”

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