By Leigh Johnston
In September 2018, the federal court ruled in favour of a casual employee receiving paid leave entitlements in the WorkPac v Skene case – despite receiving casual loading on top of their base rate which is paid to offset not having access to permanent staff entitlements such as paid leave.
Their decision was justified on the basis that the employee (though employed as a ‘casual’) worked in a systematic manner – with regular and predictable hours. The pattern of work was viewed as being consistent with permanent employment rather than casual employment.
Now, the Construction Forestry Maritime Mining and Energy Union (CFMMEU) has launched a self-funded class action against labour hire company Workpac, seeking at least $12 million in unpaid annual leave entitlements for “misclassified” casuals and promising that every cent recovered will be paid to participating members.
The action, to be lodged in the Federal Court today, aims to recoup annual leave payments due to mining and energy division members who worked for the labour supplier on flat rates of pay under long-term rosters.
Divisional general president from CFMMEU Tony Maher said the case “exposed the rort of hiring workers as permanent casuals.”
The union says 600 members owed about $12 million have registered for the “closed” class action, which is open to union members employed by Workpac since 2013 for at least three months.
Lead applicant Ben Renyard worked as a casual heavy-duty fitter on “consecutive assignments” for Workpac at the a coal mine complex in the Hunter Valley, then operated by Rio Tinto, starting in August 2014.
Workpac at the time made him an “offer of casual employment – flat rate”, under which he continued to work as part of the “A crew” as a level 3 mineworker on 12-hours shifts at a flat rate of $50 an hour.
The labour supplier made a second offer in January 2017 under which his pay increased to $52, but his job otherwise remained unchanged.
The CFMMEU argue he worked the same annual roster as the permanent employees in his crew, “but received no paid leave and had no job security”.
According to the union’s statement, Renyard accumulated an entitlement over almost three years to more than 17 weeks annual leave, worth about $37,600 (based on a 42-hour week and hourly pay of $52).
The CFMMEU’s Maher says Renyard’s story “is emblematic of a mining industry reliant on systematically short-changing its employees”.
“Ben spent years working in what was effectively a permanent job but being called a casual and so not getting any entitlements.”
Last year, Adero Law firm launched a class action seeking to recover up to $84 million for about 7,000 on-hire casuals engaged by Workpac.
Meanwhile, Workpac did not appeal the Skene decision, but instead is seeking to overturn that ruling.
While the Workpac case continues to deliver debate, business groups say today’s legal action has heightened their concerns for the viability of many businesses and the jobs of thousands of employees threatened by casuals trying to “double-dip” on their entitlements by claiming annual leave on top of their casual loading.
One in every five Australian workers is a casual employee, with more than 80 per cent of casual employees working for small and medium businesses with fewer than 100 staff members, according to the Characteristics and Use of Casual Employment in Australia report, published earlier this year by the Commonwealth Parliamentary Library.
For more information on the WorkPac vs Skene decision, Employsure have an overview, which can be viewed here: https://youtu.be/LKp9YcWGLrQ