Introduction
Two recent Federal Court cases have delivered a clear warning for businesses: host employers can be held directly liable under the Fair Work Act when they take adverse action against labour hire workers.
In both cases, casual operators supplied by WorkPac to BMA coal mines in Queensland were excluded from site shortly after exercising their safety rights. Importantly, both matters ended with significant compensation orders and civil penalties against BMA.
Case 1: The Lightning Storm & the Safety Tag – Meikle’s Story
Background
In December 2019, a lightning storm struck crews working at the Daunia Mine. The next day, Daryl Meikle, a WorkPac truck operator, raised concerns that the mine’s lightning shutdown procedures had not been followed.
Soon after, he refused a direction to remove an “out of service” tag from faulty equipment. He relied on the mine’s Isolation and Tagging SOP, believing that removing the tag would breach safety procedure and put lives at risk.
Not long afterwards, BMA revoked his site access. His assignment — and pay — ended overnight.
Court’s Findings
The Court confirmed that:
- The SOPs were workplace instruments, giving Meikle enforceable rights.
- Raising safety issues and refusing unsafe directions counted as workplace rights under the Fair Work Act.
- By excluding him, BMA took adverse action.
- Liability attached to the host employer (BMA), not WorkPac.
Remedies
- $57,000 in lost income
- $10,000 for distress and humiliation
- $150,000 in penalties
Total: $217,000
Case 2: The Unlit Ramp – Star’s Story
Background
In November 2017 at the Goonyella Riverside Mine, Kim Star, a WorkPac operator, was assigned to dump loads on Ramp 14. The ramp, however, was pitch dark — no lights had been installed.
She refused to dump the load, relying on:
- s.274 of the Coal Mining Safety and Health Act (right to refuse unsafe work), and
- the mine’s Safe Loading SOP, which required adequate lighting.
Later that night, she also complied with a random drug test under the Fitness for Work Policy.
The following day, BMA told WorkPac that she was “no longer required”. Within days, WorkPac dismissed her.
Court’s Findings
The Court determined that:
- Both the Safe Loading SOP and the Fitness for Work Policy were workplace instruments.
- Refusing unsafe work and complying with the drug test amounted to exercises of workplace rights.
- By excluding her, BMA took adverse action.
- WorkPac was not solely responsible — the exclusion decision came from the host employer.
Remedies (finalised Dec 2023)
- $15,000 in compensation to Star
- $80,000 in penalties
💡 Total: $95,000
Key Legal Principles Confirmed
Across both cases, the Court reinforced several important principles:
- Workplace instruments include SOPs and site policies
– Safety procedures mandated by mining law are legally enforceable under the Fair Work Act. - Safety refusals are protected rights
– Workers can refuse unsafe tasks if they reasonably believe there is immediate danger. - Labour hire workers receive the same protections
– The Fair Work Act applies regardless of whether the worker is directly employed or supplied through labour hire. - Host employers carry liability
– Excluding or directing the removal of a labour hire worker can amount to adverse action. The liability rests with the host, not just the labour hire agency.
The Cost of Getting it Wrong
- Meikle case: $217,000 in compensation and penalties.
- Star case: $95,000 in compensation and penalties.
Taken together, that is more than $300,000 in liability flowing from just two decisions to exclude labour hire workers who exercised their safety rights.
Lessons for Employers
To avoid similar outcomes, employers should:
- Treat labour hire workers the same as direct employees when it comes to rights and protections.
- Investigate and resolve safety concerns instead of removing workers who raise them.
- Ensure supervisors understand the risks — what might appear an “easy fix” (telling a labour hire worker not to return) can expose the host to Federal Court litigation and six-figure liability.
Bottom line: Host employers cannot pass the buck. If you make the call to exclude a worker, you also take on the legal responsibility.
If you want to read the full case transacts, then click the links below.
