A query about annual and sick leave in the coal mining industry for casual employees has been transformed into a weapon that will devastate businesses.

This is a perfect storm, says one industrial relations lawyer.
Attorney General and IR Minister, Christian Porter, clearly agrees as he refers to the surprising aspects of the decision but wants to sustain the new, if fragile, co-operation with the ACTU.
Attorney General Christian Porter will try to hammer out a deal between unions and employers SMH
So he will seek immediate consultations with employer groups and unions about a path forward as he laments the impact on employment and the economy facing their greatest challenge.
While he insists he wont immediately rule anything in or out, he also rejects any suggestion this is an argument about entitlements.
No one is questioning the right to proper entitlements for annual leave for full-time or part-time workers, he says, nor to the right to additional loadings in lieu of those entitlements for casual workers. But it must be one or the other and not both according to long-standing practice.
That long-standing practice along with the Fair Work Commissions definition of casual work has been spectacularly blown up by the Federal Court in its judgment on the status of Robert Rossato.
The increasingly ubiquitous class action lawyers and litigation funders have already been circling such a lucrative new market with potentially billions of dollars of double dipping backpayments at stake.
Rossato was employed by mining labour hire firm Workpac on a casual basis between 2014 and 2018 over six different times at two different mines. He asked the company for accrued annual leave and other entitlements despite having received typical pay loadings of 20 per cent to 25 per cent given to casual workers in compensation for the absence of permanent entitlements.
This was after a Federal Court judgment found another terminated mine truck worker, Paul Skene, was entitled to these payments although employed as a casual by Workpac.
On appeal, the full Federal Court upheld the original judgment Skene’s regular, predictable shifts on a set roster meant he was actually a permanent employee. That case was funded by the CFMEU, keen to fight the use of labor hire companies in the coal mining industry.
Workpac decided not to appeal this to the High Court in favour of using Rossato as a stronger federal test case that would, unlike Skene, include the argument casual loadings offset the loss of benefits provided to permanents.
It even paid Rossatos legal costs to ensure the case proceeded.
The result is now reverberating across the entire business world. The government will intervene in any High Court appeal but that will be a lengthy process.
And at the moment, Porter says the virus means “a great imperative and value on certainty”.
“During the COVID-19 challenge we obviously face enormous hurdles going forward to regrow employment, and this decision is unfortunately a driver of uncertainty,” he says.
The government had already tried to limit “double-dipping” via new regulations allowing employers to offset the value of casual loadings in any claims for permanent entitlements.
But the judgment overrules this by indicating that to be considered as casual, work must be effectively intermittent and unpredictable rather than regular and scheduled quite contrary to the definition used by the Fair Work Commission.
Of about 2.6 million people employed on a casual basis, 1.6 million work regular hours or did until the advent of COVID-19. Around half work for businesses with less than 20 employees. Those on awards can request to transfer to permanent if they have worked for the same employer for 12 months. Many still prefer to take the extra pay per hour and flexibility of casual work.
The government is prepared to extend the right to ask for permanency to all workers but has never legislated this.
The Australian Chamber of Commerce and Industry describes the judgment as a major blow to employment and business in Australia.
“This is a threat to the viability of thousands of businesses who need casual labour and its timing could not be more serious for our country,” chief executive James Pearson says.
According to the Australian Industry Group, the decision will increase the risks of widespread job losses in September when the JobKeeper scheme ends as well as exposing employers to backdated claims of up to $8 billion.
Parliament needs to act urgently to protect the community, to preserve fairness and to prevent double-dipping claims, says CEO Innes Willox.
Labor strongly backs the court decision, however, meaning legislation will require negotiations with the Senate crossbench unless Porter can get a quick deal with unions.
So far, the signs arent promising. He can only hope grim economic reality will overwhelm politics as usual.