Appeal is available

Employers could be off the hook for billions of dollars in unpaid leave, with a landmark ruling to be challenged in the High Court.

The federal court ruled in May that “simultaneous” people who worked regular shifts and understood continued employment were not simultaneous, and were therefore entitled to pay annual, sick and other forms.

Mining worker Robert Rossato has successfully argued his three-and-a-half year employment at work firm Workpack amounted to permanent work disguised as casual work.

But workpack has received special leave to appeal the ruling in the High Court.

The industry has welcomed the appeal, after concerns about the original ruling could create a system of ‘double dipping’, in which employees are effectively paid twice for leave already included in casual loading.

The Australian industry group said the ruling had caused uncertainty for businesses in an economy already struggling with COVID-19.

“The federal court’s decision has shocked businesses and undoubtedly posed a nuisance to employers taking on indifferent staff,” said the group’s chief executive, Inz Willox.

“With more than half a million casualties lost since March, no barrier to casualties is in the interests of employees or employers.”

The FSC has already filed eight claims against employers, he said.

Attorney-General Christian Porter, who intervened in support of Workpack application, also supported the development.

He had previously promised to explain the verdict, saying it could make businesses liable for up to $ 39m in repayment during the COVID-19 recession.

“Following this decision, the employment status of over 2 million workers in Australia is accompanied by an unreasonable and stainless degree of doubt,” he said in September.

“The financial responsibility for businesses is unbelievable because of the current economic climate.”

But CFMMEU mining and energy general president Tony Maher claimed the cost to business was “hysterically exaggerated” and the granting of an appeal would delay justice.

“The federal court has twice ruled that the widespread ‘permanent indifference’ place in mining is not only wrong, it is also illegal,” Mr Mahr said.

“The model enthusiastic at big mining and working companies is to replace good permanent jobs with lower-paid casual jobs, and this is a scam.

“Casual miners do the same work on the same rosters, but they are paid about 30 percent less and have no job security or leave rights.”

The appeal will be heard next year.

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