CFMMEU Launches Class Action Against Casual Employment
The impending wave of liability in the FIFO industry may not be of significant concern for the wider business community in regional Australia or capital cities.
On the back of a recent full Federal Court case labour-hire company, WorkPac Pty Ltd v Skene which confirmed that the casual employee in question was, in fact, an employee type entitled to annual leave payments under the National Employment Standards. Federal Circuit Court Judge Michael Jarrett’s characterisation of a remote FIFO mine employee of the labour-hire company as not being casual predictably has triggered class actions including the CFMMEU for their mining members.
What caused the casual arrangement to be so corrupted and changed, you ask?
In our opinion, it’s not the workers’ regular predictable working arrangements alone, which entitled him to retrospective benefits under s86 of the Fair Work Act 2009 for misrepresentation of the employment type. Our takeaway is that the removal or lack of choice arising from the FIFO operation triggered s86. A casual employee makes a decision each hour to work here or work over there or not work in the broader community. The highly controlled and artificial FIFO environment in a remote area was devoid from alternative work opportunities that distorted the working environment into something significantly devoid of choice.
The CFMMEU’s August class action against labour-hire company WorkPac Pty Ltd, seeking $12 million in annual leave entitlements for casuals will likely only succeed at remote locations for casuals devoid of a choice hour by hour. The seven (7) hour commute from Clermont to likely alternative casual work in Rockhampton is a significantly different proportion from the Hunter Valley’s one (1) hour-plus commute to possible alternative casual work in Newcastle.
The CFMMEU’s focus is only on the single issue that Casual employees commonly work the same annual roster as some permanent employees. While this alone is of concern, it has not artificially removed the Casual employee’s hour by hour freedom of choice to work, not work or work elsewhere.
Employers that place employees in artificial working environments devoid of choice should seek advice.
Workforce Advisory Lawyers
This article contains observations, opinions and does not form legal advice. Liability limited by a scheme approved under professional standards legislation.