Petersen v Workpac Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Petersen v Workpac Pty Ltd [2022] FCA 476

File numbers: VID 89 of 2019
VID 897 of 2019
Judgment of: MURPHY J
Date of judgment: 2 May 2022
Catchwords: PRACTICE AND PROCEDURE – representative proceedings – applications under s 33V of the Federal Court of Australia Act 1976 (Cth) for approval to discontinue representative proceedings – discontinuances approved
Legislation:

Fair Work Act 2009 (Cth) s 15A

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

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

WorkPac Coal Mining Agreement 2019

WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012

WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007  
Cases cited:

Francis (Trustee) v Oculus Accounting Pty Ltd (No 2) [2021] FCA 1275

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

WorkPac Pty Ltd v Rossato [2021] HCA 2; 392 ALR 39

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 42
Date of hearing: Determined on the papers
Counsel for the Applicant in VID 89/2019: Dr K Hanscombe QC and Mr J Fetter
Solicitor for the Applicant in VID 89/2019: Adero Law
Solicitor for the Applicant in VID 897/2019: Slater & Gordon
Solicitor for the Respondent: Ashurst Australia

ORDERS

VID 89 of 2019
BETWEEN:

MATTHEW PETERSEN

Applicant
AND:

WORKPAC PTY LTD

Respondent

ORDER MADE BY:

MURPHY J

DATE OF ORDER:

2 MAY 2022

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) (the 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 or any group member, to which the proceeding relates, shall begin to run again from the date 60 days after notice of discontinuance is filed.

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.All 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.

ORDERS

VID 897 of 2019
BETWEEN:

BEN ANTHONY WILLIAM RENYARD

Applicant
AND:

WORKPAC PTY LTD

Respondent

ORDER MADE BY:

MURPHY J

DATE OF ORDER:

2 MAY 2022

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) (the 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…

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Details
Case
[2022] FCA 476
Decision Date

CaseChat Overview and Summary

In the case of Petersen v Workpac Pty Ltd, the applicants, Mr Petersen and Mr Renyard, sought approval to discontinue representative proceedings against Workpac, a labour hire company, on behalf of approximately 10,000 group members. The Federal Court of Australia was tasked with determining whether the discontinuance of these proceedings would be fair and reasonable, considering the interests of the group members, and whether the limitation period for any claims by group members would commence again from a specific date after the notice of discontinuance was filed. The applicants argued for the discontinuance of the proceedings, funded by Augusta Ventures Ltd, to allow the group members to pursue their claims in alternative proceedings. Workpac opposed the application, raising concerns about the impact on the group members.

The court considered the principles established in Turner v TESA, which outlined the criteria for approving the discontinuance of representative proceedings. These principles included ensuring that the discontinuance would not be unfair or unreasonable to the group members and that the limitation period for any claims by group members would not commence again from the date of discontinuance. The court also noted the importance of notifying group members who may be affected by the decision to discontinue the proceedings. Applying these principles, the court found that discontinuance would not be unfair or unreasonable to the group members, as they would have the opportunity to pursue their claims in other proceedings. Additionally, the court determined that it was appropriate to order that the limitation period for a group member’s claim would begin to run again from 60 days after the notice of discontinuance was filed.

The court granted the application to discontinue the proceedings, allowing Mr Petersen and Mr Renyard to file a notice of discontinuance forthwith. It also ordered that any limitation period applicable to the claims of the applicants or any group members would start again from 60 days after the notice of discontinuance was filed. The court did not make any orders regarding the costs of the interlocutory application for approval of the discontinuance or the costs in the proceeding, and it vacated all existing orders as to costs. The court clarified that the order for discontinuance did not affect any rights of the applicants or any group member to pursue their claims in another proceeding.

The court's final orders included approval for the discontinuance of the proceedings, a specific timeframe for the limitation period to commence again, and a clarification that the order for discontinuance would not impede the applicants or group members from pursuing their claims in other proceedings.

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) (the 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 or any group member, to which the proceeding relates, shall begin to run again from the date 60 days after notice of discontinuance is filed.

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. All 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

I set out the relevant principles in Turner v TESA, including that:(a)the applicable test for approval to discontinue a representative proceeding in the circumstances of the present applications is whether the Court is satisfied that discontinuance would not be unfair or unreasonable or adverse to the interests of group members (at [6]-[10]);(b)the limitation period applicable to a group member’s claim in the proceeding (which limitation period is suspended by operation of s 33ZE(1) of the FCA) does not begin to run again from the date of discontinuance, as discontinuance does not constitute a “determination” for the purpose of s 33ZE(2). However, in my view it is appropriate to order, pursuant to the power under ss 33V and 33ZF, that the limitation period for a group member’s claim begins to run again from 60 days after the date on which a notice of discontinuance is filed (at [11]-[31]); and (c)in circumstances where group members are aware of the proceeding I do not consider it appropriate to approve discontinuance without giving notice to group members who may be affected by that decision (at [32]-[35]).I have applied those principles in these reasons.THE BACKGROUND The Skene litigation In Turner v TESA (at [39]-[43]) I summarised the factual background and the result in the Skene v WorkPac litigation. The applicant in that case, Mr Paul Skene, was employed by Workpac, a labour hire company, and hired out to undertake assignments at a coal mine, under contractual arrangements which described him as a casual employee, similarly to the claimants in the present cases. Having regard to the reality of the circumstances under which he worked, including his roster, Mr Skene alleged that he was not, at law, a casual employee. On 16 August 2018, on appeal from the Federal Circuit Court, the Full Federal Court held that Mr Skene was not a casual employee for the purposes of the FWA nor the applicable enterprise agreement and therefore was entitled to benefits associated with non-casual employment under the enterprise agreement and under the FWA (Skene FCA).Commencement of the class actions On 7 February 2019 Mr Petersen commenced the Petersen Proceeding, funded by a commercial litigation funder Augusta Ventures Ltd (Augusta). On 21 August 2019, Mr Renyard, who was a group member in the Petersen Proceeding, commenced the Renyard Proceeding seeking essentially the same relief, but on behalf of the Renyard group members described above. The applicants in the two proceedings and approximately 10,000 group members (the claimants) were employed by WorkPac to perform one or more assignments at a black coal mine, which assignments were at least three months long, and which ended in the Relevant Period in each proceeding. One of the group members in the Petersen Proceeding was Mr Robert Rossato, the respondent in the Rossato litigation which I later turn to explain. Upon hiring, the claimants, including Mr Rossato, signed a document entitled “General Conditions” which applied to all “assignments” with WorkPac and provided for employment on an assignment-by-assignment basis. The General Conditions provided that, during each assignment, the employee was to work at least 35 hours per week according to a roster, to be advised; the length of any assignment could be varied by WorkPac; and assignments could be terminated upon one hour’s notice. Each individual assignment was agreed by a “Notice of Casual Employment” (NOCE) proffered by WorkPac and signed by the employee. The NOCE fixed the assignment length, generally at six months, although at least one NOCE offered by WorkPac to a group member was “open ended”: that is, without an end date. Whatever the length of the relevant assignment, all NOCEs described the employments as “casual”. The claimants were paid a wage included a casual loading pursuant to clauses of the 2012 Agreement, which clauses were incorporated into the NOCEs.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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