Third time’s not the charm: High Court challenge over illegally sacked miners tossed out

Twenty-two miners operating out of Peabody’s Helensburgh mine have retained their win against their former employer, with the High Court upholding the finding that their dismissals were not genuine redundancies.

The High Court of Australia has today (6 August) upheld the Fair Work Commission’s and Federal Court’s decision that 22 underground miners’ sackings were not genuine redundancies after a third appeal was launched by Helensburgh Coal.

Back in 2020, the miners were sacked by Helensburgh Coal, which cited that the COVID-19 pandemic had “significantly reduced” the need for the extraction of coal at the mine. Due to the reduction in work, a restructure was undertaken, resulting in a number of redundancies for employees.

During consultations before the restructure, Helensburgh was asked to mitigate the impact of the restructure on employees by reducing its reliance on contractors from Nexus and Mentser – who were engaged back in 2018 and 2019 to provide a number of services at the mine.

Helensburgh agreed to some “insourcing” – but ultimately did not agree to terminate the arrangements with Nexus and Mentser.

According to the documents, the restructuring resulted in 40 per cent of contractors being dismissed, whereas 90 employees, including the 22 miners who filed for unfair dismissal, were sacked.

The Fair Work Commission found that the terminations were not cases of “genuine redundancy” as affected staff should have been redeployed to perform the work that was being performed by the remaining contractors. Despite appeals, the commission’s decision was upheld.

The mine contested that they only had to consider whether there were available jobs at the time of the dismissals.

“‘Redeployed’ looks to whether there was work, or a demand for work, within the employer’s enterprise or an associated entity’s enterprise that could have been performed by the otherwise redundant employee,” claimed Helensburgh.

Helensburgh challenged this in the full Federal Court, which refused relief and dismissed the application, leading to a third appeal in the High Court.

The third appeal, however, concluded in a similar result, with the High Court affirming both the full Federal Court’s decision and the FWC’s original ruling that the dismissals were not genuine redundancies.

“For over five years, these workers have been fighting to protect the very principle of job security in the mining industry,” said Mining and Energy Union general secretary Grahame Kelly.

“Today’s decision reaffirms that they should never have been sacked, and that Peabody’s claim that they had been made redundant was never genuine.

“Today, the High Court has been clear: permanent workers cannot be removed in favour of contractors through dodgy corporate restructuring. This is especially vital in the mining industry where employers have form exploiting labour hire to erode pay, rights, conditions and job security.”

A remedy for the affected workers is now set to be determined in the Fair Work Commission.