The Fair Work Ombudsman's investigations into the black coal mining industry have found high levels of compliance, with the $8.2 million in rectifications for workers coming mainly from employers who self-reported issues.
Following a request to consider commencing an investigation into the sector from the Minister for Employment and Workplace Relations in August 2024, the Fair Work Ombudsman (FWO) investigated 56 cases, with results published in a report today.
While isolated instances of non-compliance were identified, these were limited in number and scope. Issues identified did not demonstrate any systemic non-compliance in the industry.
Investigations considered the role of the Black Coal Mining Industry Award and enterprise agreements in the industry in informing wage and condition entitlements, as well as the engagement and classification of casual workers.
The large majority of recoveries, more than $8.23 million for 1,102 employees, have come from the employers who self-reported their non-compliance. These four employers variously admitted to breaches regarding annual leave and personal leave entitlements; base rates of pay, overtime entitlements, and local public holidays; and progression of apprentices and trainees under the Award and/or an enterprise agreement.
One of the self-reports resulted in a published Enforceable Undertaking with Peabody Energy Australia Coal Pty Ltd (Peabody), which rectified $4.9 million, which included about $1 million in combined interest and superannuation, to 197 underpaid employees. The Peabody underpayments related almost entirely to full-time employees, who were not paid out their accrued personal leave balances and allowances upon termination of employment between 2016 and 2023.
One other self-report case led to a Compliance Notice (CN) being issued, while investigations are continuing into the two other cases.
Most of the cases (38) related to potential underpayments, or other concerns regarding an individual worker's entitlements. The FWO found full compliance in 31 of these cases, and in the seven matters where breaches were identified, issued six CNs, recovering a total of $26,526 for four employees (which included one employer who was issued two CNs back-paying over $19,000 to two employees). One Infringement Notice was also issued for pay slip/record-keeping contraventions by an employer.
In those seven matters, the non-compliance related to annual leave/annual leave upon termination, public holiday payments, personal leave, payment in lieu of notice of termination and pay slip/record-keeping contraventions.
The remaining 14 cases involved historical complaints which required an assessment of the interaction between casual employment under a number of enterprise agreements and the Award. Eight of these cases were found to be fully compliant. Investigations could not proceed in a further two cases as businesses were no longer registered.
In the four cases where non-compliance was identified, the FWO issued a contravention letter and three closure and caution letters in relation to small historical underpayments, largely falling outside the six-year statutory limitation period, regarding the application of rates in the applicable enterprise agreements and a single confined record-keeping breach.
Overall, the FWO's investigations found:
- workers engaged as casual employees were engaged in a manner consistent with the applicable statutory definition of casual employment and relevant legal principles, noting that casual status must be considered on a case-by-case basis
- there was no evidence of widespread failure to apply an identifiable casual loading. In the majority of cases, employees were paid a casual loading of 25 per cent, or a higher 'loaded' or 'all-in' rate, incorporating a range of prescribed entitlements, under enterprise agreements
- having assessed remuneration in the historical cases, employees were generally better off overall when compared to the minimum entitlements of the enterprise agreements.
