UFB worker attempts to put Chorus on spot amid boost for mooted class action lawsuit
UFB worker attempts to put Chorus on spot amid boost for mooted class action lawsuit
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Duration Time 0:35
STUFF
Subcontractors hired by Chorus have been found to have committed multiple breaches of employment law.
Broadband
network company Chorus has become directly embroiled in a dispute
involving an alleged breach of employment law in the roll-out of
ultrafast broadband for what may be the first time.
Auckland law firm The Worker's Advocate said the authority had
instructed Chorus to attend mediation for a worker the law firm is
representing, who alleged he was paid less than the minimum wage for
work on the network.
"A Chorus fibre technician has made claims to the Employment Relations
Authority that he was paid less than the minimum wage by his employer,
Reliance Industries Private Limited," The Worker's Advocate lawyer
Nathan Santesso said.
"He has also made claims against Universal Communications Group (UCG)
and Chorus for their alleged involvement in these breaches.
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"In response, Chorus had refused to attend mediation, stating that
since they are not the technician's employer they should not be required
to engage in the process or be held responsible in any way.
"That stance was not accepted by the authority which directed Chorus and UCG to attend mediation with the technician," he said.
Chorus spokesman Ian Bonnar said it was "not quite right" that Chorus
had initially refused to attend mediation, but agreed it had argued it
should not be included in any Employment Relations Authority (ERA)
decision as it was not the employer.
"They've included us in mediation but to be clear they have formed no
view on jurisdiction – meaning, can a company in Chorus' position be a
respondent to an ERA hearing without being an employer?
"If mediation fails then I guess the ERA would have to make a call on if Chorus needs to be involved in a hearing," he said.
TOM PULLAR-STRECKER/STUFF
Employment
Relations Authority case could help establish where fault for
employment law breaches will ultimately lie within Chorus' supply chain.
Santesso said he subsequently received an email from the ERA on Friday
morning advising him that the current direction to mediation had been
"vacated" by the ERA because it did not believe it was likely to be
beneficial but that a new directive would be issued.
Labour Inspectorate manager Stu Lumsden said on Thursday that it had
opened an investigation into Reliance Industries Private following a
complaint from one employee.
"The employee had since decided to take their own personal grievance to
the Employment Relations Authority. We are unable to comment further,"
he said.
Barrister Samuel Moore, who is representing Reliance, said it was
adhering to all its minimum wage obligations and the Labour Inspectorate
had not taken any action with respect to any complaint laid.
UCG New Zealand executive general manager Roger Crellin said the matter
was "subject to an official employment relations hearing, therefore we
will not be commenting".
UCG and Visionstream are Chorus' two prime contractors.
A report commissioned by Chorus from financial services firm MartinJenkins last year concluded that Chorus had failed to sufficiently oversee the subcontracting model of Visionstream and UCG,
whose own practices it said were "not sophisticated enough" to protect
workers further down the contracting chain from exploitation.
In 2017, the Labour Inspectorate said it had found "widespread breaches of employment law" among dozens of mostly small subcontracting companies working on the UFB network.
Lumsden said on Thursday the Labour Inspectorate had so far completed
75 investigations into Chorus subcontractor firms, with eight
investigations still underway.
It had lodged six cases with the ERA, fined 13 firms a total of $22,000
and issued "improvement notices" and enforceable undertakings to a
further 50 firms, he said.
RACHAEL KELLY/STUFF
The
roll-out of fibre-optic broadband is over half-way complete, but the
argument about how the work was arranged are rumbling on.
Australian-owned law firm Shine Lawyers hopes to bring a class action lawsuit,
arguing that hundreds if not thousands of workers connecting homes to
UFB should have been treated as employees either of Visionstream or
Chorus and should be entitled to backpay, holiday pay and sick pay.
Commenting before the original order for mediation for the fibre
technician represented by The Worker's Advocate was vacated, Shine
director Karl Robinson said it was interesting the ERA had ordered
Chorus to attend mediation.
Robinson said Shine had been encouraged by a "landmark" Court of Appeal ruling earlier this month
in a case involving insurer Southern Response, which could make it
easier to get the kind of representative action being contemplated by
Shine off the ground.
"Previous representative actions have always been held to be on an
'opt-in' basis, so everyone who wants to join the claim has to fill in a
form and decide to be part of it."
DAVID WILLIAMS/NEWSROOM
A
court ruling in a case involving insurer Southern Response is expected
to make "class actions" lawsuits much easier to organise.
But the Appeal Court ruling was intended to bring New Zealand into line
with other jurisdictions such Australia and Britain, so class action
claims could cover anyone on an opt-out basis, as long as they passed
the legal test of establishing a "common interest", he said.
Robinson said the ruling could be appealed to the Supreme Court but was
"very strong" and was intended to provide better access to justice.
Shine had not yet made any final decisions about a lawsuit in relation to the UFB build, he said.
It was "still investigating what we can do, what that would look like,
and who the parties would be in terms of Chorus and Visionstream", he
said.
"But the [Southern Response] decision is a landmark decision and hugely encouraging," he said.
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