Two recent cases have highlighted the importance of working collaboratively with labour hire providers when making decisions that affect their on-hired workers. 

BHP Mitsubishi Alliance Coal Operations (BMA) is facing penalties and compensation payments for unlawfully "demobilising" labour hire employees in two separate Federal Court decisions. This sends a clear message that hosts can be held responsible for adverse treatment of labour hire employees. Penalties and compensation to the employees will be determined by the Court on a later date.

While this is a significant clarification regarding host employer responsibilities, those who work in partnership with credible labour hire providers are less likely to face potential litigation. Bayside Group for example, provides rules and guidelines for host employer supervisors to ensure clarity on their roles and responsibilities in this arrangement, noting that these are provided for their protection.

According to Nick Wakeling, Workplace Relations Manager (Acclaimed Workforce and Bayside Group), we have workplace relations experts in-house to help host employers address issues early on, with the aim of avoiding this risk.

“The BMA cases reinforce the fact that host employers need to consider the advice of labour providers and be mindful of making quick decisions. This is why the labour hire provider is there - to manage these situations so employers don’t have to.”

Case 1

BHP Mitsubishi Alliance Coal Operations (BMA) engaged on-hired employees from a labour hire provider. Ms Star, who was engaged as an on-hired Machine Operator, was working in an environment with inadequate lighting. She raised a complaint with her supervisor requesting improved lighting in her work area. Ms Star’s supervisor informed her that lighting would be upgraded, and she refused to unload material until the lighting had been improved. 

She was subsequently directed to take a crib break. The next day, BMA informed her labour hire provider by email that Ms Star was “no longer required” and her employer dismissed her three days later. Consequently, Ms Star filed an unfair dismissal application in the Fair Work Commission (FWC) against the labour hire company. The FWC found that Ms Star was unfairly dismissed and ordered she be reinstated to her former position at BMA. Subsequently, BMA refused the request from her labour hire employer to return to the site.

Due to the response of BMA, Ms Star lodged an adverse action claim in the Federal court against BMA. She claimed that BMA had "demobilised" her for exercising her workplace rights to refuse to dump loads of rocks at night until better lighting was provided. 

In court, BMA had "to prove that the exercise by an employee of their workplace rights was not a substantial and operative factor in the reason for the adverse action it took against them.”

The Court found in Ms Star’s favour, determining that BMA had “… advised, encouraged or incited [the labour hire provider] … to exclude [her] from the mine thereby discriminating between her and other employees".

Case 2

In a similar case, BMA was also found to have taken unlawful adverse action by excluding Mr Meikle, a labour hire worker, because he exercised his workplace rights, which included complaining about allegedly unsafe practices at BMA’s Daunia Coal Mine.

After raising these safety concerns, Mr Meikle was stood down pending an investigation into an alleged tagging breach on site. His labour hire provider substantiated the allegation and issued a written warning. Nevertheless, BMA revoked the employee’s access to the mine and his casual assignment was concluded.

Justice Collier said that the belief of the superintendent who made the decision that Mr Meikle posed an unacceptable safety risk at the mine has “no substance, and is simply implausible ... rather, the evidence indicates that Mr Meikle insisted on exercising workplace rights at the mine, and that in so doing he essentially aggravated" management.

Key take-away

In both cases the court found that the on-hired employee raised a workplace complaint and by removing them from the work site and, in Ms Star’s case, the refusal to reinstate, BMA was found to have engaged in adverse action and/or advising, encouraging or inciting WorkPac to take adverse action against their on-hire employees within the meaning of the Fair Work Act.

This case is of particular importance as it demonstrates that a host employer can be found liable for breach of the general protection’s provisions in the FW Act in relation to adverse conduct towards a labour hire worker – even though there is no contractual relationship between the host employer and the labour hire worker.

¹ Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345 (11 November 2022)

² Construction Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2023] FCA 30 (30 January 2023)

For further information about Bayside Group’s workforce management or workplace relations services, contact us today.