THREE Federal Court justices have raised concerns about the fairness to non-union coalminers of a deal between the coalminers’ union and a major contracting company to settle millions of dollars in unpaid entitlements.
In an unusual move, the court asked this week for an amicus curiae – a barrister appointed as a “friend of the court” – to act as a “contradictor” to the position put by the union and the company.
The company, One Key Workforce Pty Ltd, provides contract labour to various mines in Queensland – where one of its directors, footballing identity Darren Lockyer, is the company’s public face – and in the Hunter Valley.
The use of “casual” contract labour, often on long-term set shifts, has been a long-running controversy in the industry.
The Construction, Forestry, Maritime, Mining and Energy Union had a win against One Key in November when the Federal Court ruled against a 2015 non-union enterprise agreement voted on by just three workers and later used to cover more than 1100 people.
As the Australian Financial Review has reported, One Key appealed against the decision, saying it faced “insolvency’ if it had to pay an estimated $3.5 million to the affected employees.
Fearing One Key would abandon the workers if it lost its appeal, the union agreed to the company putting $1 million in the bank to be distributed to the affected employees. The AFR says that after the appeal was lost in May, One Key’s parent company, Fircroft, set up a new company, FES Coal, that signed a “greenfields agreement” with the union that allowed it to engage casuals but on “industry-leading conditions”.
This week, the union and the company were before the Full Court of three justices, asking that they not issue final orders to quash the approval of the 2015 One Key agreement.
But a court order set down on Wednesday and obtained by the Newcastle Herald show the three justices are concerned about “the effect that the position for which the parties contend might have on the interests of current and former employees of [One Key] who are not members of the [union]”.
They are also noted “concerns” about section 596AB of the Corporations Act, which outlaws an agreement that would prevent the recovery of entitlements or “significantly reduce” the amounts that could be recovered.
“The Full Court has indicated that it wishes to have the benefit of a barrister to act as a contradictor to the position for which the parties contend,” Wednesday’s court order states.
The case is scheduled to resume on August 28.