The CFMMEU filed unfair dismissal applications with the Fair Work Commission on behalf of five of its members, who had been employed by a large labour hire company, WorkPac Mining Pty Ltd.

The men were working on a development contract for PIMS mining at South 32's Appin Coal Mine when they were made redundant on June 9/10 due to a pandemic-related downturn in the coal industry.

But around the same time they were being made redundant, South 32 signed a supplementary labour contract with WorkPac to employ another 90 experienced coalminers to work at Appin.

The men claimed WorkPac breached the Fair Work Act 2009 by not properly consulting them and not taking reasonable steps to redeploy them when the company still had work to offer.

The commission heard four of the aggrieved five were put forward by WorkPac to South 32 as part of the recruitment process. The fifth was not, due to his lesser experience. But none of the four employees were redeployed into any of the roles at South 32 in the first round of recruitment.

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The Commissioner found the men's dismissals were not a case of genuine redundancy. "The respondent should have advised South 32 that there were four employees that it was legally obligated to place into the supplementary labour contract. It should have had these four employees 'on boarded' before submitting any other names ... [Workpac] appears to have just grouped the four employees in with the other employment-seeking aspirants in sending a list to South 32. In real terms, the applicants were forced to compete for a role, when section 389(2) does not require such competition."

"Having found that [Workpac] has not consulted with any of the applicants in accordance with the consultation provisions of the agreement and not redeployed four of the applicants at the time of their termination into the supplementary labour contract, I find that the applicants' dismissals were not cases of genuine redundancy.

"[Workpac] was of the view that the employment relationship with the applicants basically concluded when PIMS decided that they had no further work for the [five men]. This was not the case. [Workpac] does not gain an exemption from section 389(2) of the Act simply because it is a labour hire company. If that was the case, then every employer in Australia would outsource its workforce to a labour hire company in order to avoid its obligations under the Act."

The matter was relisted for conference at a later date.