Mining giant BHP is facing a class action from up to 400 workers who allege they were left $40 million worse off because they were hired as “casual” workers by labour hire firms and not as permanent staff, despite their rosters being published months in advance.
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The legal action is, effectively, two separate proceedings that form one class action.
Two BHP companies, Mt Arthur Coal Pty Ltd and Hunter Valley Energy Coal Pty Ltd (HVEC) will be sued in the proceedings, as well as the labour hire firms Chandler Macleod and TESA. The labour hire firms engaged the workers in question.
The landmark action, to be launched this week by law firm Adero Law, could grow to include between 800 and 1500 people and cover an estimated $40 million to $50 million, according to the lawyer leading the claim, Rory Markham.
“Four hundred people have indicated they wish to join the action,” Mr Markham said, “but we believe the claim will grow to between 800 to 1500”.
“On Monday we’re filing an action that will kick off a series of four to five further actions around casualisation in the mining industry.”
Australia’s black coal mining industry was “the only industry in Australia where a casual will get substantially less than a permanent, on an hour to hour basis,” he said.
“We think this (legal action) is ground-breaking because 15 years ago, casuals were earning more than they do today, and there are now mines that are largely casual-driven. So this industry, as other industries in the resource sector, are becoming increasingly casualised but no-one’s had the resources to really take this legal fight up.
"And we hope that it redraws the definition of what truly is a casual. And either results in casuals getting substantially more money, or alternatively, just returning to a permanent workforce,” he said.
The Mt Arthur mine is a black coal mine in the Hunter Valley. Its workforce includes permanent employees and casual workers.
Adero said the mine is owned by HVEC, which is part of the BHP group, and that the mine is operated by Mt Arthur Coal, a wholly owned subsidiary of HVEC.
The Mt Arthur mine, in the same manner as many other mines in Australian coal mining, has a mix of workers including direct employees, and workers engaged by contractors and labour hire companies. The numbers fluctuate to meet requirements of the operation.
The lead applicant in the class action is former Mt Arthur mine worker Simon Turner. Mr Turner, 47, was a casual who used to drive huge trucks at the mine, but hasn’t been able to work since a workplace injury he suffered at the mine in late 2015.
Mr Turner alleges that in his time at the mine casual workers did “exactly the same work” and were on the same roster as permanent employees, but were paid much less. Casual workers were not paid annual leave, nor were they eligible for paid sick leave, he said.
“I loved my job, I loved working in the mine, mate. It was long and hard work but it was an enjoyable job.
“But it just bears down on you when you have permanents taking holidays, and we basically do the same job but no-one gets holidays,” he said.
“People would go to work while they were sick and they were asked ‘How come you’re here?’ And they’d say, ‘I’ve got to be here, because I don’t get paid otherwise,” he said.
Mr Turner said he was concerned about being a casual at the mine “way before” he was injured and no longer working at the mine.
In response to queries from Fairfax Media about the looming legal action, a spokesman for BHP said: “BHP has not received any formal communications about these matters or the claims being made.”
Chandler Macleod released a short statement which said: “Chandler Macleod has not been notified of any action against us. In the event of any action, we would respond to the court process.”
Fairfax Media also contacted the labour hire firm Programmed about the class action, because Tesa is part of the Skilled Group which was acquired by Programmed in 2015. Programmed said it was unable to comment.
The Sydney Morning Herald
