Class action deepens casual chaos 

Australian Resources and Energy Group AMMA is concerned to see the rising threat of US-style class action law suits arising from last year’s Full Federal Court decision in WorkPac v Skene.

The latest development involves the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) reportedly filing a class action claim against WorkPac seeking around $12 million in unpaid annual leave entitlements for casual employees.

AMMA Chief Executive Steve Knott said the new litigation further backs AMMA’s lobbying efforts to see a solution to this significant area of risk and uncertainty.

“The Full Federal Court decision in WorkPac v Skene effectively threw out the longstanding, common sense understanding about entitlements for casual employees,” Mr Knott said.

“It is extremely concerning that the decision has raised the spectre of a feeding frenzy of US-style class action claims such as the one reportedly filed by the CFMMEU.

“AMMA is aware of several employers who have received enquiries from long-term casual employees who believe they may be owed back-paid entitlements. Simply, if an employee had accepted a higher rate of pay for being casually engaged, they should not be able to also claim for back-pay of permanent entitlements such as annual leave.

“That a casual employee can double dip on both higher rates of pay as well as permanent entitlements, is an epic fail of the pub test.

“The uncertainty this has created for business and the broader economy has been disastrous.

“The risk exposure for individual employers, both in the resources sector and the broader economy, may run into billions of dollars and place businesses into receivership.”

Restoring common sense to this longstanding practice is one of AMMA’s reform priorities for the current Federal Government. A permanent legislative solution is required to protect thousands of Australian businesses against potential claims and to restore the long-held common sense understanding of casual employment.

Government must arrest dramatic slide in Enterprise Agreements

Another priority identified by AMMA for the Morrison Government is addressing the rapid decline in enterprise bargaining, with in-term agreements under the Fair Work regime falling to their lowest level in more than 20 years.

A fundamental issue in recent years has been the pedantic, overly-technical assessment of new agreements by many members of the tribunal. This has seen inconsistent approaches about whether an agreement meets statutory criteria and causes significant delays to employees receiving pay rises and other benefits under the agreement.

Recent data released by the Fair Work Commission shows that agreement approval times have more than halved from its peak of 76 days to 35 days in the past six months.

In a well-publicised address to the Newcastle Industrial Relation Society, Fair Work Commission President Iain Ross defended the current approach to enterprise agreement approvals, signalling improvements in agreement approval times since the last reporting period.

The data shows the median approval time for all agreement approvals from February 2019 to August 2019 was 35 days. The Commission has set the benchmark to have 100% of “complex applications” approved within 16 weeks of being lodged.

As reported in the Australian Financial Review, AMMA’s chief executive Steve Knott said even a 16-week target for agreement approvals was ‘‘an absurd time frame for a public service administrative body with significant dedicated resources for this work’’.

“When you’re tendering for business opportunities, four months is an eternity,’’ he said.

AMMA’s Pathway to Productivity – Key workplace reform priorities

AMMA newly-released policy booklet Pathway to Productivity offers solutions to a number of inefficiencies and productivity barriers in Australia’s workplace laws, including issues surrounding casual employment and dwindling enterprise agreement numbers.

It outlines a way forward for productivity through eight priority industrial relations reforms, as identified by Australia’s resources and energy employers.

The booklet highlights the resources and energy industry’s key workplace reform priorities for the 46th Parliamentary term.

For a copy of Pathway to Productivity, click here.

A flipbook version is also available here.

To provide feedback or for further information on any of the themes covered in the booklet, please contact  [email protected]