Fair Work Ombudsman v Woolworths Group Limited (The Calculation Employees)

[2022] FCA 203

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Woolworths Group Limited (The Calculation Employees) [2022] FCA 203  

File number:	NSD 581 of 2021
Judgment of:	PERRAM J
Date of judgment:	9 March 2022
Catchwords:	PRACTICE AND PROCEDURE – where allegations of underpayment by employer – where 19,000 affected employees – where calculation of underpayment has been made for a salaried group – whether the Applicant should seek to demonstrate the position of the entire group – whether Applicant should proceed by reference to 32 or 10 employees
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	6
Date of hearing:	8 March 2022
Counsel for the Applicant:	Mr J Bourke QC and Ms E Levine
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Mr J Kirk SC and Mr M Seck
Solicitor for the Respondents:	Ashurst
Solicitor for the Proposed Interveners:	Adero Law

ORDERS

NSD 581 of 2021

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

WOOLWORTHS GROUP LIMITED (ACN 000 014 675)

First Respondent

WOOLWORTHS (SOUTH AUSTRALIA) PTY LIMITED (ACN 007 873 118)

Second Respondent

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	9 MARCH 2022

THE COURT ORDERS THAT:

1.The parties confer and provide to Chambers, within 7 days, a short minute of order giving effect to these reasons and addressing any outstanding pleading questions.  

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1. This litigation concerns allegations of underpayment by the Respondents (collectively, ‘Woolworths’) of amounts of salary due to approximately 19,000 of their salaried employees. Amongst those 19,000 employees is a group of 70 salaried employees for whom a calculation of the alleged underpayment has been undertaken for the period 5 March 2018 to 3 March 2019. The pleading refers to these as the ‘Calculation Employees’.

2. The parties agree that it would be better for the orderly conduct of the proceedings if the Applicant did not seek to demonstrate the position of all of the 70 Calculation Employees. The Applicant says it would be appropriate to proceed in relation to 32 of the Calculation Employees whilst Woolworths says it would be appropriate to proceed by reference to 10.

3. Both parties agreed that the lower the number of Calculation Employees involved, the more efficient the proceeding would be to run. They differed on which number they thought would maximise the utility of the outcome in terms of the remaining 19,000 salaried employees. The Respondents thought that their sample of 10 was sufficient to achieve all of the clarity which was going to be achieved whilst the Applicant thought that this would only occur with a sample of 32.

4. Neither party sought to demonstrate the procedural consequences of the number they nominated other than through examples couched at a high level of generality. The parties did not invite me to try and work out by reference to the issues defined by the pleading what I thought would be the optimum number. Instead, the matter was presented as a choice between two numbers.

5. There is insufficient information to permit me to make a choice between the two numbers which would be informed. I propose therefore to approach the matter applying the precautionary principle. If the litigation now proceeds on the basis of the 32 Calculation Employees for which the Applicant contends this will not prevent the parties later agreeing, if this is possible, that those employees may themselves be further grouped. On the other hand, if the case proceeds on the basis of the 10 Calculation Employees identified by the Respondents and this turns out to be too narrow a focus it will be impossible, or at least very much harder, to undo this problem.

6. For that reason, I will indicate to the parties that they should proceed on the basis of 32 Calculation Employees as proposed by the Applicant. The parties should bring in a short minute of order dealing with any outstanding pleading questions and giving effect to these reasons. As I indicated at the hearing, it would be useful at least for management purposes, for the two Coles actions to travel with this proceeding and its companion class action.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated:       9 March 2022