Hill v Skilled Workforce Solutions (NSW) Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Hill v Skilled Workforce Solutions (NSW) Pty Ltd [2024] FCA 603

File number(s): VID 1209 of 2019
Judgment of: MURPHY J
Date of judgment: 7 June 2024
Catchwords: REPRESENTATIVE PROCEEDINGS - Practice and Procedure –– application under s 33V of the Federal Court of Australia Act 1976 (Cth) for approval to discontinue representative proceeding – relevant principles regarding approval to discontinue- order under s 33V(1) and 33ZF that the limitation period starts to run again – discontinuance approved
Legislation:

Fair Work Act 2009 (Cth) ss 15A, 545A

Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 33V, 33ZE, 33ZF

Federal Court Rules 2011 (Cth) r 26.12

Cases cited:

O’Neill v Mann [2000] FCA 1680

Rota v Fire Rescue Victoria [2024] FCA 424

Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; 314 IR 214

WorkPac Pty Ltd v Rossato [2020] FCAFC 84; 278 FCR 179

WorkPac Pty Ltd v Rossato [2021] HCA 23; 271 CLR 456

WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536
Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 30
Date of hearing: Determined on the papers
Solicitor for the Applicant: Adero Law
Solicitor for the Respondent: Herbert Smith Freehills

ORDERS

VID 1209 of 2019
BETWEEN:

JUSTIN HILL

Applicant
AND:

SKILLED WORKFORCE SOLUTIONS (NSW) PTY LTD (ACN 104 811 565)

Respondent

ORDER MADE BY:

MURPHY J

DATE OF ORDER:

7 JUNE 2024

THE COURT ORDERS THAT:

1.Discontinuance of the proceeding be approved pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (FCA). The Applicant has leave to discontinue the proceeding by filing a notice of discontinuance, forthwith.

2.Pursuant to ss 33V and 33ZF of the FCA any limitation period that applies to the claim of the Applicant and any group member, to which the proceeding relates, shall begin to run again from a date 60 days after filing of a notice of discontinuance.

3.There be no order as to costs of the interlocutory application for approval of the discontinuance.

4.There be no order as to costs in the proceeding.

5.Any existing orders as to costs are vacated.

THE COURT DECLARES THAT:

6.Order 1 does not affect any rights of the Applicant or any group member in the proceeding to pursue the claims that are the subject of this proceeding in another proceeding.

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


REASONS FOR JUDGMENT

MURPHY J:

  1. By an interlocutory application dated 25 January 2022 the applicant, Mr Justin Hill, seeks court approval under s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (FCA) to discontinue the class action he has brought against the respondent, Skilled Workforce Solutions (NSW) Pty Ltd (Skilled). He brought the proceeding on his own behalf and on behalf of…

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Details
Case
[2024] FCA 603
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Hill v Skilled Workforce Solutions (NSW) Pty Ltd concerned a request by the applicant to discontinue representative proceedings against the respondent. The applicants, who were employees of the respondent, a labour hire company, were seeking compensation for unpaid annual leave and other entitlements. The dispute arose from the nature of their employment contracts, which were termed "casual," despite the applicants working under a continuous roster. This situation was influenced by the decision in WorkPac Pty Ltd v Skene, which found that certain employees in similar circumstances were not truly casual. The court was tasked with deciding whether to approve the discontinuance of the proceedings and, if so, under what conditions.

The legal issues before the court involved the principles governing the approval of discontinuance in class actions under section 33V of the Federal Court of Australia Act 1976 (Cth). The court had to determine if discontinuance would be just and whether it could impose conditions to ensure fairness to both parties, including the potential recommencement of limitation periods for the group members' claims. The court considered the precedent set in Turner v TESA, which held that an order allowing limitation periods to restart post-discontinuance is just because it enables group members to protect their rights individually and prevents the respondent from indefinite exposure to claims.

The court approved the discontinuance of the proceeding, noting that the discontinuance would not be unfair or unreasonable to the group members, as they had been notified of the application. It made an order that the limitation periods for the group members' claims would restart 60 days after the filing of a notice of discontinuance. This decision was based on the principle that such an order ensures justice by allowing group members to bring their own proceedings and protecting the respondent from perpetual liability. The court also clarified that the approval of discontinuance does not affect any rights of the applicant or group members to pursue their claims in another proceeding.

Orders

Orders of the court

1. Discontinuance of the proceeding be approved pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (FCA). The Applicant has leave to discontinue the proceeding by filing a notice of discontinuance, forthwith.

2. Pursuant to ss 33V and 33ZF of the FCA any limitation period that applies to the claim of the Applicant and any group member, to which the proceeding relates, shall begin to run again from a date 60 days after filing of a notice of discontinuance.

3. There be no order as to costs of the interlocutory application for approval of the discontinuance.

4. There be no order as to costs in the proceeding.

5. Any existing orders as to costs are vacated.

THE COURT DECLARES THAT:

6. Order 1 does not affect any rights of the Applicant or any group member in the proceeding to pursue the claims that are the subject of this proceeding in another proceeding.

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

Background

Background to the litigation

Section 33V(1) requires that the Court approve the discontinuance of class proceedings, which implicitly imposes a condition that the discontinuance be just. Section 33ZF empowers the Court to make any order the Court thinks appropriate or necessary to ensure justice is done in the proceeding. And the Court may order a discontinuance subject to a term or condition: Note 2 of r 26.12 of the Federal Court Rules 2011 (Cth); see e.g. O’Neill v Mann [2000] FCA 1680 at [11] (Finn J). An order that provides that the limitation period commences to run again from 60 days after discontinuance, is “just” because it provides group members an opportunity to protect their rights by bringing their own proceedings, and because it protects the respondent from exposure to the risk of group members’ claims in perpetuity: see Turner v TESA at [11]-[31].BACKGROUND The claimants were employed by Skilled, which is a labour hire company, and assigned to work in black coal mines in New South Wales. Upon hiring, the claimants signed contracts of employment in template form. Although the contracts contained some provisions consistent with a mutual expectation of long-term engagement, the contract described the employment as “casual” and expressly stated: “You have no guarantee of ongoing employment”. The contract provided for a flat hourly rate of pay, which was said to “include” a casual loading, although the amount of the loading was not stated. In their employment, the claimants were covered by collective industrial agreements which denied paid annual leave entitlements to “casual” employees, defined as those “engaged in accordance with the Company’s casual contract of employment, and paid as such.”. During their employment, the claimants were not paid annual leave. On 16 August 2018, the Full Court had handed down judgment in WorkPac Pty Ltd v Skene[2018] FCAFC 131; 264 FCR 536, in which it found that the applicant, who was employed as a casual employee by a labour hire company to work in black coal mines, was as a matter of law not a casual employee and as a full-time employee was entitled to the benefits of the applicable enterprise agreement and under the FWA. I summarised the background and result in Skene in Turner v TESA (at [39]-[43]). In reliance on the decision in Skene the applicant commenced this proceeding on 31 October 2019. In the proceeding it is alleged that the claimants worked shifts according to a continuous roster which was provided to claimants at the beginning of their employment, and that despite contractual provisions to the contrary, there was a firm advance commitment from the respondent to each group member as to continuing and indefinite work according to an agreed pattern of work. It is alleged that claimants were therefore not casual employees under the FWA or the relevant collective agreement and were entitled to paid annual leave or compensation for underpaid annual leave entitlement, and for a pecuniary penalty for breach of the collective agreement and of the National Employments Standards in the FWA.

Evidence

Evidence Before The Court

For the reasons I explain, I am satisfied that it is appropriate to approve the discontinuance of the proceeding.THE EVIDENCE The applicant relies on:(a)two affidavits of Rory Markham, a solicitor and principal of Adero Law, the solicitors for the applicant:(i)sworn on 24 January 2022 which annexes a confidential Counsel’s Opinion of Joel Fetter of counsel;(ii)sworn on 3 February 2022; (b)an affidavit of Kalle Häkkinen, a solicitor of Adero Law, affirmed on 20 October 2022;(c)an affidavit of Donna Godman, a Workplace Relations Partner of Programmed Skilled Workforce, a related body corporate of Skilled, affirmed on 6 June 2024.THE RELEVANT PRINCIPLES I set out the relevant principles in in Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; 314 IR 214 (Turner v TESA) at [6]-[31], including that:(a)the Court’s task in considering whether to approve a discontinuance is different to its task in approving a settlement under section 33V of the Act. The proposed discontinuance is a unilateral act of an applicant, which (subject to cost consequences) puts the applicant in the same position as if the proceeding had not been commenced, and it has different consequences to a settlement. As there is no agreement by which the proceeding is compromised, there can be no merger of the applicant’s rights in the proceeding. As there is no judicial determination, there can be no res judicata or issue estoppel; and(b)in the circumstances of the present application, where the practical effect of discontinuance will be to return group members to the position they are in before the commencement of the class action, the applicable test for approval to discontinue a representative proceeding is whether the Court is satisfied that discontinuance would not be unfair or unreasonable or adverse to the interests of group members: see Turner v TESA at [6]-[10]; Rota v Fire Rescue Victoria [2024] FCA 424 (Anderson J); (c)in circumstances where group members are aware of the proceeding it would be inappropriate to approve discontinuance without giving notice to group members who may be affected by that decision: Turner v TESA at [32]-[35]. Here, the group members were given notice of the application for discontinuance. In relation to the limitation periods applicable to group members’ claims in the proceeding (which are suspended by operation of s 33ZE(1) of the FCA), they do not commence to run again from the date of discontinuance, as discontinuance does not constitute a “determination” for the purpose of s 33ZE(2): c.f. Rota. In the circumstances of this case it is appropriate to make an order pursuant to ss 33V and 33ZF that the limitation periods for group members’ claims commence to run again from 60 days after the date on which a notice of discontinuance is filed. Section 33V(1) requires that the Court approve the discontinuance of class proceedings, which implicitly imposes a condition that the discontinuance be just. Section 33ZF empowers the Court to make any order the Court thinks appropriate or necessary to ensure justice is done in the proceeding. And the Court may order a discontinuance subject to a term or condition: Note 2 of r 26.12 of the Federal Court Rules 2011 (Cth); see e.g. O’Neill v Mann [2000] FCA 1680 at [11] (Finn J). An order that provides that the limitation period commences to run again from 60 days after discontinuance, is “just” because it provides group members an opportunity to protect their rights by bringing their own proceedings, and because it protects the respondent from exposure to the risk of group members’ claims in perpetuity: see Turner v TESA at [11]-[31].BACKGROUND

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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