As the Same Job Same Pay showdown over labour hire loopholes kicks off in Court today, there is the matter of a BHP $2.5B wage theft nobody wants to touch. Michael West reports.
Simon Turner and James Joseph were both injured at BHP’s Mt Arthur Coal. One blue collar, the other white. Turner was a coal miner who drove coal trucks, Joseph was a human resources executive who worked a keyboard.
Despite their different roles, both were covered under the Black Coal Award at the time of their injuries. Both were at first ‘mysteriously kept’ from the safety regulators, both are now at loggerheads with BHP, both have been threatened, both have had their personal lives left in tatters in their pursuit of justice.
And both were dismayed to find just before Christmas that the mining juggernaut, its constellation of lawyers, unions and labour hire firms – and even the government – had successfully petitioned the Court to bury documents relating to what they describe as Australia’s largest workplace scam; the multi-billion dollar wage theft of thousands of coal workers.
This action is set down for hearing in the Fair Work Commission this morning as BHP locks horns with the Government over its Same Job Same Pay laws.
Despite efforts by BHP and the mining lobby to cover up what Simon Turner calculates is at least a $2.5B wage theft (the labour-hire scam which the new laws have sought to address), it is possible to piece together enough evidence to demonstrate a historic wage fraud.
At the heart of Turner’s action against BHP is the matter of who actually employed him. “All the documents [we] tendered into court [in a 2019 class action by coal workers] showed Chandler Macleod was the true employer,” says Turner.
“This would have been a win for me and everyone in the coal industry if this was cited in court, if Justice Michael Lee [of the Federal Court] had been aware of it,” he told MWM.
“And it exposes a load of fraudulent workers compensation claims – that they are all underpaid and that they [BHP and its labour-hire firm Chandler] have misled the courts multiple times over many years.”
What is the evidence for Simon Turner’s claim? There is the matter in the Fair Work Commission in March 2015 filed by the CFMEU against Chandler Macleod for illegal casual employment under the Black Coal award. The Union told the Commission that all their Chandler Macleod employees were employed as casuals under the Award.
Again burying the evidence trail, this matter was settled by way of a confidential deed for one person a day before the Fair Work Commission approved a brand new agreement on June 4, 2015 between the CFMEU and Chandler which added in the casual classification – the very casual classification that was not permitted under the Award, “and that the CFMEU had stated must be kept out of the coal mining industry”.
The Altobelli Ruling
“In December 2015, the CFMEU then filed a matter against BHP’s HVEC (Hunter Valley Energy Coal) for adverse action,” says Turner. “This is the matter where Judge Altobelli ruled in 2017 that Chandler Macleod (ABN 052) was the true employer.”
Yet, fast-forward to March 2018, and when Turner saw the defence brief by BHP in his class action he noticed BHP and its lawyers had inserted Ready Workforce as first defendant. “I was never employed by Ready Workforce (ABN 037). This is 2 years after the Altobelli decision in which BHP Hunter Valley Energy Coal was the defendant”.
“I didn’t know who they were,” says Turner. “They never paid me, Ready Workforce never paid my weekly wage, PAYG tax, compulsory super contributions or the compulsory Coal LSL payroll levy.
“There was no document trail. I’d never heard of them. No one had any knowledge of a 2007 Ready Workforce agreement that somehow suddenly applies in 2014/15. And there was no evidence put forward to the class action in the BHP defence.
“Ready had no contract at the Mt Arthur Mine; it never invoiced BHP HVEC and never received payments from BHP HVEC.”
“The Court had the payslips, they had the Tax Office documents [showing Chandler was the employer], but these were never put into Court”.
The proof
Another former coal miner involved with the action confirmed this to MWM. Sam Stephens also worked at Mt Arthur.
“Like Mr Turner, I too possess two sets of PAYG summaries from my former employer for the same year. The original shows that I was employed by Chandler Macleod, the other carries a different employer ABN while all the financial details remained consistent with the original.
“When I informed the Attorney General Mark Dreyfus and the Treasurer Jim Chalmers regarding this matter and other issues surrounding my personal records as held by the ATO in August of 2022, via email, I eventually got a phone call from someone in Treasury.
“The official response? The matters that you raise are private legal matters between you and your former employer”.
Black Hole: CFMEU, governments, BHP, black coal giants in $2.5B worker wage swindle
A thing of culture
It is not convincingly contested by the mining and big business lobbies fighting the Government over Sam Job Same Pay that labour-hire companies have been deployed to suppress the wages of their workers.
It is the sheer complexity of the system which is in favour of BHP and the mining corporations. This complexity, the financial muscle to hire endless lawyers, and transparency are used as weapons.
According to former Mt Arthur Human Resources executive turned whistleblower James Joseph:
“I recall over my 13 years, when there’s a ‘top secret wages governance project’, they would typically sign legal, HR and senior leaders up to a confidentiality agreement. This created complications with internal transparency of what the true issues versus the actions needed to be.
“Internal governance for employee wages needs a lot of work. My previous roles were highly focussed on this. Apart from improving the processes, I think more empathy for employees (present and past), to ensure payroll compliance, is critical for the organisation”.
Paid $400 per week
For these coal miners, the matter was personal. Thanks to BHP’s sleight of hand with the labour-hire rort, Turner was being paid $400 a week in workers’ compensation by ICARE (Insurance and Care NSW), which legally can’t insure the at-risk occupation of a coal miner.
“I was covered by an icare policy that classified my at-risk occupation as an office worker and paid $28,000 per year, a pittance compared with the $137,000 stipulated under the Black Coal award.”
It was even more galling that he had broken his back on-site at Mt Arthur and, amid a cover-up, was pursuing compensation. His story here:
So, what did happen? There are big bucks at stake for BHP and its labour hire associates, and that’s why they have fought so hard to bury the evidence trail.
“This [Federal Court matter in 2019] was one class action, but it would have spread to Queensland – Adero [Turner’s lawyers] had another 7 class actions in the pipeline – claims against Workpac, Onekey, Tesa and Chandler Macleod”.
Simon Turner was the lead plaintiff in the BHP Mt Arthur claim, where another 1200 workers at that mine alone should be entitled to compensation.
Why was the evidence of the real employer never established in court in the class action?
Case mysteriously discontinued
“[Justice Michael] Lee got the docket in March 2020. He didn’t know about any of this because the earlier Altobelli court ruling was not submitted, and we never got to discovery,” says Turner. “The case was discontinued. The barrister’s advice says that it can’t go any further because of the 2007 agreement [cited in the BHP defence].”
That, despite this email from Turner’s barrister:
The lack of political will to solve this wages rip-off is easily explained. The Coalition has been silent because it will not stand up to BHP. Likewise Labor, although they have addressed the scam with their Same Job Same Pay laws which the mining companies are now complaining about and challenging in the FWC.
The issue runs more deeply, however. If the workers were found to have been underpaid by the courts, that would present a large hit for the Government. For, the erroneous calculation of wages affects the insurance and long service leave entitlements (Coal LSL) of every worker.
Revenues from insurance and LSL go to government and the unions … and the profits from this revenue have risen over the years via reinvestment of these proceeds. It is a lot of money.
BHP declined to respond to questions for this story.
Stay tuned.
The BHP whistleblower and the secretive plan to turn Hunter Valley coal into lakes
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.