Shine Lawyers has brought a class action against Infrastructure Services Group Management (ISGM) claiming up to 4,700 telecommunications workers were misclassified as independent contractors and, if the Court finds they were misclassified, up to $280,000 per worker and potentially $400 million overall in unpaid wages, leave, allowances and overtime entitlements under the Telecommunications Award.
Shine Lawyers said that in their view “ISG Management exercised total control and direction over the employment of these workers including where they worked, the jobs they worked on, the clothes they wore to work, the branding on their vehicles, the methods of work they were required to follow, such that they were actually employees rather than independent contractors.”
ISG Management allegedly exercised a high level of control over the workers requiring them to log in to work each day and complete allocated tasks within a set timeframe. They were required to wear ISGM branded uniforms, used ISGM computers and software and had no capacity to negotiate fees or the allocation of tasks.
ISGM has indicated it will “vigorously defend this claim” saying they “believe that [their] sub-contractor model provides flexibility, choice and competitive returns for Australian small businesses.” They maintain the workers were correctly classified as independent contractors on the basis that they were free to provide services to others, had the right to delegate work, had the right to refuse to perform work, provided their own equipment and insurance and were paid per job.
Dr. Tess Hardy from the Melbourne Law School said the case would “allow an judge to weigh up conflicting authorities in this area and consider some of the moxt vexing issues such as whether supplying services through an incorporated entity or purchasing expensive tools and equipment is fatal to a claim of employment.”
Exclusivity of service was also a key criterion with the ISGM contracts explicitly stating the contractors worked in a non-exclusive way but the workers claiming that long working hours and ISGM’s rostering practices meant there was no real opportunity to provide services to others.
Dr. Hardy also noted that any decision was likely to be the subject of an appeal.