‘Con­flict of in­ter­est’

Union ac­cused of putting res­cue sale be­fore em­ployee claims

Geelong Advertiser - - BUSINESS - JOHN DAGGE

AUS­TRALIA’S big­gest re­tail union has been lashed by the work­place um­pire for de­lib­er­ately fail­ing to file un­fair dis­missal claims for three Har­ris Scarfe work­ers amid con­cerns it would jeop­ar­dise a res­cue sale.

The Fair Work Com­mis­sion has ruled the Shop, Distribu­tive and Al­lied Em­ploy­ees As­so­ci­a­tion know­ingly acted against the best in­ter­ests of three for­mer Har­ris Scare em­ploy­ees when it de­cided to hold off fil­ing un­fair dis­missal claims on their be­half within the re­quired 21 days.

With­out the em­ploy­ees be­ing in­formed, the SDA’s na­tional ex­ec­u­tive took that de­ci­sion af­ter be­ing told by the Har­ris Scarfe ad­min­is­tra­tor the le­gal chal­lenges would jeop­ar­dise a loom­ing sale of the fallen depart­ment store chain, which con­tin­ued to em­ploy 1200 work­ers.

The SDA had pre­vi­ously told the em­ploy­ees, who were made re­dun­dant from two Har­ris Scarfe stores in re­gional Tas­ma­nia in late March, it would file un­fair dis­missal claims.

Har­ris Scarfe was put in vol­un­tary ad­min­is­tra­tion in early De­cem­ber af­ter be­ing pur­chased by pri­vate eq­uity firm Al­le­gro Cap­i­tal. The union has pre­vi­ously been crit­i­cised for be­ing too close to em­ploy­ers.

In his rul­ings, Fair Work Com­mis­sion deputy pres­i­dent Tony Saun­ders said the SDA had failed to prop­erly ad­dress the “clear con­flict of in­ter­est” it had in bal­anc­ing the rights of the mem­bers who asked it to file un­fair dis­missal claims against con­cern for the on­go­ing em­ploy­ment of the wider Har­ris Scarfe work­force.

“In my view, it is un­usual or un­com­mon for a mem­ber of a union to pro­vide clear in­struc­tions to their union and then main­tain reg­u­lar com­mu­ni­ca­tion with their union, but not be in­formed that the union had made a de­lib­er­ate de­ci­sion to act in a man­ner in­con­sis­tent with their best in­ter­ests,” Mr Saun­ders said.

Mr Saun­ders said the SDA should have pro­vided the em­ploy­ees with in­de­pen­dent le­gal ad­vice and rep­re­sen­ta­tion when it be­came clear they would not meet the dead­line to file un­fair dis­missal ap­pli­ca­tions. “No doubt any such in­de­pen­dent ad­viser would have rec­om­mended that the ap­pli­cant lodge her claim within the 21-day pe­riod,” he said in the de­ci­sions made last month.

“Al­ter­na­tively ... the SDA could have ex­plained all the cir­cum­stances to the ap­pli­cant and al­lowed her to make an in­formed de­ci­sion as to whether to lodge her ap­pli­ca­tion within the 21-day pe­riod.”

Mr Saun­ders granted all three em­ploy­ees a time ex­ten­sion to file their claims, not­ing it ap­peared Har­ris Scarfe had failed to en­gage in the re­quired con­sul­ta­tion pe­riod be­fore mak­ing them re­dun­dant.

The SDA re­jected the sug­ges­tion it had mis­han­dled the cases or that it should have pro­vided in­de­pen­dent le­gal ad­vice, ar­gu­ing the work­ers were ul­ti­mately granted ex­ten­sions to file their claims. “No one has been dis­ad­van­taged, nei­ther the worker con­cerned nor the other em­ploy­ees in the store,” na­tional sec­re­tary Ger­ard Dwyer said.

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