A CLASS action that questions the legal right of coal companies to use casual labour is being launched in the Federal Court over employment practices at BHP's Mt Arthur mine.
Canberra law firm Chamberlains is launching the class action, which takes aim at the hiring practices of mine owner BHP and two of its contractors, Chandler Macleod and Tesa, saying contract mineworkers are being systematically underpaid by tens of thousands of dollars a year.
Chamberlains describes itself as a class action specialist and says it has 400 people ready to sign on to the case. Litigation funder Augusta Ventures has agreed to fund the case, which should be lodged in the Federal Court in the coming weeks.
Chamberlains became involved after meeting former Mt Arthur contractor Simon Turner, whose situation was featured in the Newcastle Herald in 2016.
Chamberlains partner Rory Markham said Mr Turner and two other former contract workers at Mt Arthur - both women - would be the lead claimants in the action.
Mr Turner was sacked by his contractor, Chandler Macleod, after a truck accident at the Muswellbrook site in late 2015.
For decades, the coal industry has had its own workers compensation system which is supposed to cover all coal mining employees.
But as the Herald has reported, Chandler Macleod has used a legal precedent to insure its employees under the general NSW system, and to not pay the accident pay otherwise available to injured miners.
As a result, Mr Turner has been living on $400 a week since the accident, rather than the $1800 he would have got through Coal Mines Insurance.
He says both compensation schemes have ignored his plight - and that of other injured Chandler workers - and his case has been raised by the Greens in state parliament.
Mr Markham said “the decision by Chandler Macleod to not pay accident pay is without foundation".
"There is no legal basis to deny Mr Turner his fair entitlement," Mr Markham said.
"We are aware of many other people in Mr Turner’s position. The actions of Chandler Macleod must be held to account.”
Mr Markham said the class action went well beyond accident pay, and challenged the legal basis for employing casual mine workers in an industry that only allowed full-time and part-time employment under the ruling award.
Mr Markham said the contractors were being classed as casuals yet they worked side by side with directly employed BHP workers, doing the same shifts on the same rosters in the same manner as full-time permanent workers.
He said the class action would allege that BHP and the contract companies worked together to casualise the Mt Arthur workforce in contravention of the Fair Work Act.
“The move by the industry to casualise its workforce has exploded since 2010 in a system that is meant to prohibit casualised workers," Mr Markham said.
"These contractors are being treated like second class workers and we now have the necessary backing to correct this wrong.”
Mr Markham said Mt Arthur was the largest coal mine in the Hunter region.
He said that the class action, if successful, could have ramifications for the entire NSW coal industry.
Mr Turner said he was extremely grateful that Chamberlains had taken up the case. He said some people outside of the industry could see what he was saying but those inside, including regulators, seemed content to ignore the contradictions he’d discovered.
“It’s destroyed my life,” Mr Turner said.
“After being hurt at work through no fault of my own, I find I’m not entitled to accident pay because I’m a ‘casual’. Then they say I’m not covered by Coal Mines Insurance because apparently I don’t work in the ‘coal industry’.
“But it’s never been just about me. There’s an awful lot of people suffering out there who have been chewed up by the coal industry.”
Responding to the class action announcement, both BHP and Chandler Macleod said they had not been notified by Chamberlains of any action against them.
Chandler’s said: “Our employees are covered by, and paid in accordance with, the relevant enterprise agreement and we comply with all workers compensation obligations.”
The Herald is still seeking comment from Tesa’s successor company, the Japanese-owned Programmed Management Services.