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Shorten’s wage theft tribunal could unleash ‘double dipping’ claims

“All you’ll be able to do in a small claims tribunal is pursue matters that you were legally entitled to.”

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Multiple class actions by casuals seeking annual leave entitlements are being fought in the Federal Court after its controversial Workpac v Skene decision last year set a precedent for workers to dispute their casual status and claim backpay.

It means the question of whether casuals can be entitled to annual leave is not clear.

Peter Strong, chief executive of the Council of Small Business Organisations Australia, said the new body would spell more red tape for members, who may opt to pay “go away money” to avoid the hassle of fronting up to a hearing.

He said small business owners wanted whoever formed government next week to make Australia’s workplace laws simpler so small business owners can avoid mistakenly underpaying staff.

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Workplace law specialist Luis Izzo from Australian Business Lawyers said Mr Shorten’s promised new “one stop shop” tribunal could give casual workers a fast track to claiming backpay for leave entitlements like Skene, avoiding the high cost of going to court.

He said it would be able to would be “unusual” if a tribunal set up to deal with wage claims did not also accept claims for backpaid entitlements.

Court action following the union-funded Skene decision has so far been restricted to class actions backed by litigation funders and a follow-up case in which labour hire firm WorkPac is seeking a ruling that another worker it employed was legitimately categorised as a casual.

Mr Shorten’s promised tribunal, which is backed by the Australian Business Council and Australian Council of Trade Unions, would give workers a faster and cheaper way to have their claims heard.

Labor’s industrial relations spokesman Brendan O’Connor said employers would have “every right to rebut” claims made in the tribunal, but would not rule out allowing casuals to pursue claims for unpaid leave entitlements.

Labor's employment spokesman Brendan O'Connor said employers would have "every right to rebut" claims made in the tribunal.

Labor’s employment spokesman Brendan O’Connor said employers would have “every right to rebut” claims made in the tribunal.Credit:Dominic Lorrimer

“Of course we would not deny the rights of natural justice to employers who might want to argue for example, that they have paid an amount in another way,” Mr O’Connor said.

“And if they are able to successfully argue that of course that will have a bearing on the outcome of the tribunal.”

In March, Labor moved to disallow a Coalition government regulation that aimed to protect employers from “double dipping” and ensure they could not be forced to pay twice for the same entitlement, by allowing them to offset backpay claims against loadings already paid.

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Mr Izzo said many wage disputes were highly complex and that most would not be suitable for a small claims tribunal, due to contested facts or arguments about which award category an employee fell under.

“You’d want a mechanism so that complex issues could be properly considered by a court,” he said.

Mr Shorten has made wages a key focus of the final days of his election campaign.

Mr O’Connor seized upon comments by Nationals member for Page, Kevin Hogan, that penalty rates were “great for our youth”, saying the election would be “a choice between Labor’s plan to restore penalty rates, or bigger tax loopholes for the top end of town under the Liberals”.

With Anna Patty and Judith Ireland

Dana is health and industrial relations reporter for The Sydney Morning Herald and The Age.

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