Parties ponder next moves in back-pay case

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Parties ponder next moves in back-pay case

While a major Victorian employers’ association contemplates its next step in a decision which could have major back-pay implications for many workers, the trade union movement says it may take it to the Federal Court for breaching freedom of association provisions.

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While a major Victorian employers’ association contemplates its next step in a decision which could have major back-pay implications for many workers, the trade union movement says it may take it to the Federal Court for breaching freedom of association provisions.

The Victorian Employers’ Chamber of Commerce and Industry has been examining its legal options in the week since the federal Industrial relations Commission ruled that its ‘subscriber’ members, who had no voting rights, were as much bound by federal awards as full members, because VECCI had not distinguished between them on its books (IR Link 101).

That case concerned an employee who lost his unfair dismissal claim, but employers have been put into a spin about the possibility of having to pay back-pay to all workers not previously paid under the federal award by subscriber members.

Some 350,000 Victorian workers are covered by Schedule 1A of the federal Workplace Relations Act, and as such are entitled to vastly lesser wages and conditions than other Australian employees (see story).

VECCI’s workplace relations director, David Gregory, told WorkplaceInfo today he could not comment at this stage, apart from saying that VECCI had not come to a final decision as to whether it would appeal. He said the group was considering ‘a range of legal options’ and was still awaiting final advice on those options.

He also could not comment on what advice VECCI was giving to members at the moment.

And while Victorian unions are waiting to see if VECCI will appeal, before making their next step, they are determined to act before Christmas to stop the ‘undermining’ of ‘the whole federal system’.

Victorian Trades Hall Council secretary Leigh Hubbard told WorkplaceInfo that a meeting of affiliates and labour lawyers today had decided the movement was committed to taking the matter forward, but was still debating options.

He said taking a class action on behalf of potentially underpaid workers was ‘not without its difficulties’ as it would involve getting workers who may not know of the issue yet to come forward, and also involved knowing which VECCI members were subscriber members.

As VECCI was unlikely to open its records to the VTHC, he said pre-trial discovery as to how widespread the problem really was could be a very expensive way to recover what could amount to as little as a couple of thousand dollars for each worker.

Despite the difficulties, he said the movement was determined to fight, as ‘whether or not we get payments for individual workers, this practice needs to be stopped'.

Another option involved taking VECCI to the Federal Court, claiming a breach of freedom of association provisions under s298k of the Workplace Relations Act.

Yet another scenario Hubbard outlined was the possibility of some VECCI members taking action against the organisation. Hubbard said he also felt it was unlikely VECCI would be given leave to appeal the original case, as it was a matter between an individual employer and worker, with VECCI not a respondent, and the employer had won.

WorkplaceInfo was unable to contact another major employer group, the Australian Industry Group, for comment but it is believed all members of the AiG are full members and thus aware of their federal award obligations.

 
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