• Anyone who engages workers either directly or indirectly.


  • There is an increasing trend in employment-related class action litigation in Australia.


  • Ensure that workers engaged directly and indirectly are provided their full legal entitlements for their classification and employment status.

The trend towards employment-related class action litigation is continuing with the recent news that workers at BHP's Mount Arthur Coal Mine are commencing class action proceedings against BHP subsidiaries and their labour-hire contractors alleging underpayment and misclassification of workers.

The claims are purportedly valued at more than $40 million. There is a strong suggestion that similar proceedings may be commenced against other coal mine operators and their contractors.

The development of plaintiff-friendly class action reforms across a number of Australian jurisdictions has seen an increase in class actions in recent years, particularly with the implementation of Part IVA of the Federal Court of Australia Act 1976 (Cth) and similar reforms in New South Wales, Victoria and Queensland.

Increasing public scrutiny of employment conditions off the back of the 7-Eleven underpayment claims, the rise of the gig economy (e.g. Uber, Deliveroo and Airtasker), and the increased utilisation of labour-hire workers is fuelling a rise in employment-related class action claims, or "representative proceedings" as they are more properly known.

Employment-related class actions are often commenced against multiple parties, including the alleged employer, as, pursuant to section 550 of the Fair Work Act 2009 (Cth), related-bodies corporate, principals and contractors can also be held liable for being "involved in" the alleged contraventions. This adds considerably to the complexity associated with defending proceedings of this nature. Plaintiff-backed media campaigns can further increase the corporate burden.

There are currently four "Employment and Industrial Relations" class actions in the Federal Court of Australia; one in the sales and marketing industry, one against a Commonwealth government employer and two in the mining industry, not including the BHP claim which is expected to be filed shortly. There are others in the state courts.

More are on their way.

The Fair Work Ombudsman, for example, recently commenced proceedings against food delivery and gig economy participant Foodora, alleging sham-contracting (i.e. improperly treating employees as contractors) and underpayment in relation to three workers. If successful, a class-action by other similar workers is on the cards.

We expect to see employment-related class action litigation continue to rise for some time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.