Shine Lawyers wins first hurdle in ISGM Class Action
17 March 2020
Justice Bromberg delivered judgment in the Lead Applicant’s favour, rejecting ISGM’s application to de-class the action filed against it.
In November 2018, Shine Lawyers filed a class action against ISG Management Pty Ltd (ISGM), a subsidiary of Tandem Corporation, on behalf of Robert Mutch and other telecommunication workers who, since 2011, suffered financial losses after entering into sub-contracting arrangements with ISGM.
ISGM later filed an application attempting to de-class the action, which would force workers to bring individual claims against the corporation.
The Federal Court in Victoria rejected ISGM’s submissions that there were insufficient common issues to constitute a class action, finding Shine’s class action valid.
Shine Lawyers allege that since at least 2011 ISGM has misrepresented the true nature of its engagement with thousands of telecommunication technicians in breach of the Fair Work Act (2009) (FWA).
The central question in the case is whether telecommunication workers who purportedly entered into sub-contracting arrangements with ISGM were actually employees of ISGM and therefore entitled to employment entitlements such as leave and superannuation.
Shine Lawyers’ application to strike out ISGM’s cross-claim, which alleges that in the event of an outcome in favour of workers, the workers should pay back money that ISGM paid workers under their sub-contracts was reserved for hearing at a later date. Robert Mutch argued that statutory employment entitlements such as leave and superannuation, cannot be set off against any other payments received by the workers.
“Justice Bromberg’s decision will allow us to move forward with our action and continue to work towards bringing justice to over 3,000 technicians who we say were misled into thinking they had actually been engaged by ISGM through a sub-contracting model,” said Class Action, Practice Leader, Vicky Antzoulatos.
“Mr Mutch contended that flooding the Court with over 3000 individual actions or running the case as an opt-in class action (as ISGM contended), does not achieve access to justice for group members suffering under ISGM’s subcontracting business model. The Court reaffirmed the will of the Australian parliament when it enacted the class action provisions over 25 years ago, that an opt-out process was the preferred model for class actions in Australia and should not be undermined by the Court’s use of its power to close a class at an early stage which ISGM had contended for”, said Ms Antzoulatos.
“ISGM’s sub-contracting system of work has ongoing and continuing negative financial and personal implications for workers. The Court’s judgment today confirmed that the substantive matters at issue in these proceedings, being ISGM’s system of work and subcontracting business model, involved sufficient common issues to be determined as a class action” said Ms Antzoulatos.
“Like much of the community, many technicians including me are now being forced to stay home and because of ISGM’s subcontractor model I can’t access benefits such as sick leave or carer’s leave” said ISGM worker, George Baskedis.
Shine Lawyers is encouraging all telecommunications technicians who were allegedly engaged by ISGM as sub-contractors from 2011 to join the class action.