BHP kept evidence out of court for years in defending its case against an injured coal miner. But, as Michael West reports, the Court has inadvertently just proved his claim.
BHP’s chickens are coming home to roost. The Big Australian and its assorted defendants managed to have the lawsuit by injured coal miner Simon Turner almost entirely muzzled, then thrown out of Court on procedural grounds.
Yet the high-octane pettifogging by BHP, its labour hire people from Chandler MacLeod, its legal eagles from Minter Ellison and a dead-silent press corp might not be enough to make it all go away.
How is this for irony? In the wake of the suppressed court case, Turner filed leave to appeal to the Federal Court. But the Court, after imposing draconian suppression orders over his case, and attempting to charge him $1,952.53 to obtain access to the transcripts in his own case, then told Turner he had to pay $5,830 to file an appeal.
He could not afford it.
And so he made a financial hardship application to have the appeal fees waived. The Court requested payslips and three months of bank statements from Turner to prove his hardship claim.
He provided them accordingly. But here’s the catch. His payslips prove just what BHP and its co-defendants have been trying to keep out of court for 8 years – that is, that his true employer was Chandler MacLeod (see main image above). Years of payslips, years of evidence, suddenly filed with the Court.
Yes, two years of payslips emphatically show his employer was BHP’s labour hire firm Chandler MacLeod. For years, BHP and Chandler had argued that Turner’s employer was a little known mob called Ready Workforce.
Then, in the recent, suppressed, proceedings they switched their defence tactics to claim that Turner had agreed to sign a deed which had Ready at his employer (buried in the fine print). It didn’t matter whether the deed was wrong, they contended, what mattered was that it had to be upheld.
It is the supreme paradox that, for years, BHP and co had been been trying to keep Turner’s payslips out of the court as evidence, but now the Court, in requesting evidence for his hardship claim, has inadvertently proven Turner’s claims.
What will BHP, Minters and co now contend? That the evidence provided to the Court cannot be used in court?
Parties not partying
Not only are the two years of weekly payslips provided from the day Chandler – not Ready Workforce – took over his contract; but Turner’s PAYG records, his superannuation records, his Coal LSL (long service records) and his Separation Certificate sent to Centrelink saying no workers comp claim had been made … all say Chandler MacLeod was his employer.
Chandler is also party to the proceedings, along with BHP Group Limited, Mt Arthur Coal Pty Ltd, Hunter Valley Energy Coal Pty Ltd and Coal Mining Industry (Long Service Leave Funding) Corporation. In a further irony, one of the defendants, HVEC, mistakenly filed as its ABN the ABN of the mysterious Ready Workforce.
Things are surely going to become a little rugged for the defendants. Either they will have to argue that Turner’s payslips, provided to the Court, are fake, or that Chandler, despite the sheer weight of evidence was somehow not his employer.
It’s a dog’s breakfast.
Lining up behind Turner’s claim are a bunch of miners who were employed, arguably illegally, as casuals at the gigantic Mt Arthur coal mine in the Hunter Valley. In being too tricky in their defence of Turner’s claim, they may find themselves on the wrong end of a $2.5B class action for wage theft.
Why?
A key fact in Simon Turner’s claim is that, in 2017, the Federal Circuit Court had already determined that Chandler Macleod Group Limited was the employer in the Mt Arthur labour hire arrangement.
Case Muzzled. Court strikes out injured coal miner, backs BHP
Michael West established Michael West Media in 2016 to focus on journalism of high public interest, particularly the rising power of corporations over democracy. West was formerly a journalist and editor with Fairfax newspapers, a columnist for News Corp and even, once, a stockbroker.