A class action law firm representing thousands of workers allegedly owed more than $320 million in entitlements will apply to intervene in a casual worker test case.
ACT-based law firm Adero will on Thursday apply in the Federal Court to intervene in the case between mining industry labour hire firm WorkPac and its former worker Robert Rossato, which seeks to clarify the definition of a casual worker.
WorkPac is seeking a declaration that Mr Rossato was a casual employee and not entitled to annual leave, after being hit with an earlier ruling that a truck driver it employed on a casual basis, Paul Skene, was entitled to leave.
It comes after Federal Industrial Relations Minister Kelly O'Dwyer last month applied to intervene in the case on behalf of the Commonwealth, saying the law must be clarified to prevent workers from "double dipping" by claiming leave on top of casual loadings.
A WorkPac spokesman said Adero’s attempt to join the test case "underscores the real threat posed by opportunistic class action lawyers seeking to double dip on entitlements and exposes the legal minefield potentially faced by small businesses employing casuals".
"Businesses small and large are at risk of job-destroying back payment claims from Adero and other class action law firms that want casual employees to be paid twice for the same entitlements," the spokesman said.
Adero Law managing director Rory Markham - who is preparing class actions against Australia's four biggest mining industry labour hire firms, including WorkPac - said the intervention, on behalf of another former WorkPac employee and class action participant, Beau Daniel Meaney, aimed to ensure that the test case did not adversely impact his clients.
"We'll apply tomorrow and suggest the class action should go first," Mr Markham said on Wednesday.
"It is not appropriate that the Commonwealth, or WorkPac on its own, get involved in matters that are the subject of a class action."
The firm wants the WorkPac case to be delayed until after the class action has been heard.
The Construction, Forestry, Maritime, Mining and Energy Union and Mr Skene, a union member, have also applied to intervene in the fresh WorkPac case.
Mr Markham said WorkPac had cherry-picked Mr Rossato, whose legal fees the company is paying, for the test case because he had worked a more regular pattern of hours than the typical labour hire worker, as represented by Mr Skene.
He argued that any finding in relation Mr Rossato's employment status was unlikely to bind the thousands of workers who would be able to participate in the WorkPac class action.
Mr Markham said he planned to file four class action suits in December - claiming more than $320 million in unpaid entitlements - against WorkPac and fellow mining industry labour hire firms Hays Recruitment, Programmed and One Key Resources.
He said the class action against WorkPac would proceed "irrespective of the court's decision" in relation to Adero's intervention application.
A WorkPac spokesman said casual employees "are already paid for their entitlements in the form of a higher hourly rate".
"That’s the way the system was designed to work, and this approach is reflected in agreements and awards approved by the Fair Work Commission," the spokesman said.
"Double dipping is manifestly unfair and poses a significant risk to businesses and the Australian economy.”
The Australian Industry Group last month referred Adero's class action to the ACCC, citing concerns about the wording of an agreement with overseas litigation funder Augusta Ventures, which requires a 250 per cent return on costs.
A spokesman for the competition watchdog said on Wednesday: "The ACCC has received the Ai Group’s letter and is considering the issues raised."
AI Group chief executive Innes Willox said it was "obviously unfair" for an employee to pursue a claim for years of back-pay for annual leave if they had been paid a casual loading.
“It is important that Parliament legislates without delay to prevent opportunistic double-dipping claims being pursued by class action lawyers," Mr Willox said.
Dana is a federal politics reporter, covering health and industrial relations. Previously, she was a reporter for The Australian.