Up to 400 mine workers are set to launch legal action against BHP after they were hired as ‘casual’ workers, but were asked asked to work under the same conditions as permanent staff, which they allege has cost them A$40m.
The class action suit will be filed by law firm Adero Law. The firm will take action against two BHP-owned companies – Mt Arthur Coal and Hunter Valley Energy Coal – and the labour-hire firms Chandler Macleod and TESA. The lead applicant in the claim is former Mt Arthur mine worker Simon Turner, who was employed as a casual to drive trucks at the mine until he suffered a spinal injury at work in 2015.
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.”
“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.’”
Rory Markham, the Adero lawyer leading the suit, claims that the lawsuit could ultimately represent up to 1,500 workers, and cover up to $50m. He has also suggested that the case could spark a wider discussion of casual and permanent employment and pay in the Australian mining industry.
He said: “We think this is ground-breaking because 15 years ago casuals were earning more than they do today and 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.
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“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.”
Turner was paid A$411 per week instead of the A$1,800 per week paid to permanent employees at the Mt Arthur mine. Chandler Macleod is alleged to have used a legal precedent to insure employees hired by the firm are insured under the general New South Wales insurance system, rather than the coal industry’s specific insurance system which has been in place for decades. Turner was refused entitlements of up to A$20,000 per year due to his casual status, and sacked by Chandler Macleod following his injury.
The Mt Arthur mine is the largest coal mine in New South Wales, employing around 1,900 people. In 2017, a lawsuit filed against the mine by the Construction, Forestry, Mining and Energy Union (CFMEU) revealed that the mine was planning for 40% of its employees to be casuals by the end of the year.
“This move to casual work is in fact a deliberate business strategy to make workers more compliant and less able to fight for decent pay and entitlements,” said CFMEU District President Peter Jordan. “The companies know that casual workers can be fired at a moment’s notice, meaning they are less likely to stand up for their rights.
“Casual workers in the mining industry have less job security, poorer working conditions and less social protection, but perhaps the biggest problem is that casual workers tend not to speak up about safety issues, for fear of losing their jobs.”