There’s a rather clever ad kicking around featuring a naked miner, holding his work hat over his genitals, accusing the government of stealing rights from casual workers. It definitely makes you look, but lean in too close and you’ll stumble over the mining Union’s dirty secret.
The CFMMEU have fought hard to keep casual work out of the Black Coal Award. After swearing that casual work is not suitable for the special conditions that coal miners face, they set about overseeing Enterprise Agreements for, you guessed it, casual work. These deals are making headlines, some as genuine news – most as Union propaganda – with the CFMMEU locked in a legal challenge against a labour hire firm for so-called ‘casual-full-time’ employees.
In the wake of a Federal Court decision concerning the mining industry, the CFMMEU has crept one step closer to destroying casual work across hospitality, retail, and the healthcare sector in what Minister for Industrial Relations Christian Porter’s office estimates as a $14 billion apocalypse for Australia.
Casual work is a crucial, highly regulated part of the landscape. Businesses need to hire and fire quickly to fill gaps in employment during busy periods, while workers who agree to take on the obvious instability are paid a handsome surcharge on each hour in lieu of missing entitlements. It is a fair system, governed by a corresponding Fairwork Award that lays out the responsibilities of both parties. Retail and hospitality depend on its existence, but it was left out of the Black Coal Award.
The reasons for excluding casual work are not without merit. Coal mining involves a remote, dangerous, meticulously regular employment environment often conducted with tight-knit crews operating on inflexible rosters drawn a year prior. When comparing these full time and casual miners, the court ruled in a recent case that there was no meaningful difference between them, or evidence of hourly loading to compensate for the lack of entitlements. This controversial decision invalidated the Enterprise Agreement, forcing workers to automatically fall back onto the Award where there was no provision for their casual work, triggering a case for compensation.
This obvious contradiction between the Fairwork Award and Union-endorsed Enterprise Bargaining Agreements has created a quagmire of legal sludge, trapping employees and employers in a predatory landscape which the Unions have no problem exploiting as part of their ongoing war against clear employment guidelines. Worse still, the CFMMEU is demanding the maximum six years’ retrospective compensation on what was thought to be a legally correct arrangement – undermining trust in the Fairwork Commission, who sign off on every Enterprise Agreement.
Fairwork Awards are designed to lay the groundwork for acceptable employment practices while Enterprise Bargaining Agreements create flexibility negotiated by parties within a reasonable framework provided by the Fairwork Commission. They cannot include terms that would cheat a worker out of the general protections offered under the National Employment Standards. The question here relates to an inability to define a minimum Award rate to then add a suitable loading onto – a problem not shared by other industries.
Labour hire firms and their Enterprise Agreements are the only source of casual labour for mines. Through these Union-approved and (previously) operated labour hire companies, mines are able to employ an effectively casual workforce that operates full time with labour hire firms chopping a tidy profit off the top. If casual work is indeed a required part of the industry, why won’t the Union allow it to be properly regulated and written into the Award?
Unions operate like spiders, using employment complexity like a web designed to confuse, scare, and entangle employers. This fear of making a mistake allows the CFMMEU to monopolise the employment market by proxy, signing Agreements which they then pretend to condemn by picking on labour hire companies seemingly at random. It is their contradictory chaos which creates a litigation nightmare at the expense of the workers they pretend to represent.
It is all well and good for the CFMMEU to go on a propaganda campaign against casual work, but we must remember that they are the main proponent behind its existence. There is no evil employer or government conspiracy against coal miners – they signed perfectly legal Agreements in the eyes of the Fairwork Commission and Union co-signatories.
In essence, the CFMMEU are disputing their own Agreements and no one is quite sure why.
If Porter’s office had been paying attention, legitimate issues regarding inequitable working conditions within the mining industry never would have ulcerated to the point of threatening millions of Australian jobs.
The disastrous precedent was set by the Rossarto vs WorkPac mining labour hire case that went before the Federal Court. It conflated casuals working in hospitality, retail, and healthcare with those in mining allowing all of them, including those who are correctly paid an hourly loading, to double-dip by collecting billions of dollars of back pay for six years of missed entitlements. Cheered on by CFMMEU National President Tony Maher, the court’s mistake was to claim that the presence of regular shifts defined the work as full time – rather than the additional pay they made on each hour as per the Fairwork Award. The Unions went further to accuse honest businesses of somehow robbing these staff of entitlements, painting them as villains.
Choosing to define casual work by the stability of shifts has sent shivers down the spine of Australian employers who immediately (and rightly) demanded that the government intervene in the High Court challenge. What may have been true of the black coal mining industry is certainly not true of a retail business, but is being exploited by the CFMMEU who have been looking for an excuse to infiltrate the private market where they are most unwelcome.
In effect, the Union’s actions have encouraged industries to either sack casual staff or deliberately make their previously regular shifts irregular to satisfy no one except the all-powerful CFMMEU. In a time of economic devastation, this greed and embarrassment at their own mistake in the mining industry will lead to the permanent destruction of casual work and a loss of valuable jobs when the nation is desperate to salvage what’s left of a post-COVID world. If struggling businesses have to pay compensation for employees who were already paid, those businesses will close immediately.
Sally McManus might pride herself for this assault on insecure work, crediting it as a ‘massive step forward’, but what she fails to understand is that a healthy nation depends on insecure work. It is this voluntary flexibility that creates a thriving employment environment for workers and employers who exercise their right of choice. If they simply fixed the Black Coal Award, this never would have occurred. The CFMMEU don’t want anyone to smear the casual work dirt on them.
Whether you think miners deserve compensation for poorly drafted Enterprise Agreements that they voluntarily signed or not, what is certain is that it is the CFMMEU who is holding the shovel and they won’t stop until the business landscape is buried.
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