Schanka v Employment National (Administration) Pty Ltd

[1999] FCA 1812

FEDERAL COURT OF AUSTRALIA

Schanka v Employment National (Administration) Pty Ltd [1999] FCA 1812

PETER SCHANKA & ORS v EMPLOYMENT NATIONAL (ADMINISTRATION) PTY LTD

NG 461 of 1998

MOORE J
SYDNEY
21 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 461 of 1998

BETWEEN:	PETER SCHANKA & ORS Applicant
AND:	EMPLOYMENT NATIONAL (ADMINISTRATION) PTY LTD RESPONDENT Respondent
JUDGE:		MOORE J
DATE OF ORDER:		21 DECEMBER 1999
WHERE MADE:		SYDNEY

THE COURT ORDERS AND DIRECTS THAT:

1.A notice in the form of Annexure A to these reasons for judgment be published by 21 January 2000.

2.        The notice be published:
           (a)       by the applicants in a national daily newspaper and

(b)by the respondent forwarding a copy to a manager of each office of the respondent and the manager placing the notice on the staff notice board, or such other facility as is used to post notices for the attention of staff.   If there is no such facility, the manager shall affix the notice to the door of the staff amenity room.

3.The respondent file and serve a defence by 18 February 2000.

4.The matter be listed for further directions on 25 February 2000 at 9.30am.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 461 of 1998

BETWEEN:	PETER SCHANKA & ORS Applicant
AND:	EMPLOYMENT NATIONAL (ADMINISTRATION) PTY LTD Respondent

JUDGE:	MOORE J
DATE:	21 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. At the conclusion of the hearing on 1 December 1999 I indicated a tentative view that I would direct the publication of a notice in accordance with s 33X(1) of the Federal Court of Australia Act (Cth) 1976.   I remain of that view.  Section 33X(1)(a) requires a notice to be given that the proceedings have commenced and that class members can opt out.  Such a notice should issue as soon as practicable: s 33X(6).  However the requirement that a notice be published is qualified by the power to dispense with the requirement conferred by s 33X(2).  I am invited by counsel for Employment National (Administration) Pty Ltd (“ENA”) to exercise that power in relation to the notice to the entire class or part of it.  They point to what is said will be the adverse impact on the stable industrial relations within ENA by notice being given.  They also submit that the question of the power to set aside or void the AWA’s should be answered before any notice is given.  ENA contends there is no such power.  I presently doubt that the Court has power to set aside an AWA if it was made under duress.  Nonetheless the Employment Advocate may have, impliedly, such a power.  However, notwithstanding that these issues are presently unresolved, there is an insufficient basis, in my opinion, for not informing members of the class of these proceedings, which have been on foot for over 18 months, that the proceedings have commenced and to give them the opportunity to opt out, if they wish, before the proceedings progress any further.  Accordingly I propose to direct that a notice be given.  The approved form of the notice is a modified amalgam of the notice proposed by the parties.  

2. The court orders and directs:

   1.A notice in the form of Annexure A to these reasons for judgment be published by 21 January 2000.

   2.        The notice be published:
              (a)       by the applicants in a national daily newspaper and

   (b)by the respondent forwarding a copy to a manager of each office of the respondent and the manager placing the notice on the staff notice board, or such other facility as is used to post notices for the attention of staff.   If there is no such facility, the manager shall affix the notice to the door of the staff amenity room.

   3.The respondent file and serve a defence by 18 February 2000.

   4.The matter be listed for further directions on 25 February 2000 at 9.30am.

I certify that this and the preceding two (2) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated:            21 December 1999

Counsel for the First Applicant:	C Howell
Solicitor for the First Applicant:	Steve Ramsey, Community and Public Sector Union
Counsel for the Respondents:	J Trew QC with L Kaufman
Solicitor for the Respondents:	Andersen Legal
Date of Hearing:	1 December 1999
Date of Judgment:	21 December 1999

ANNEXURE A

CLASS ACTION

EMPLOYMENT NATIONAL (ADMINISTRATION) PTY LTD

A class action has been commenced in the Federal Court of Australia against Employment National (Administration) Pty Limited.

The action alleges that Employment National (Administration) Pty Limited (referred to in this notice as ENA) applied duress to persons in breach of s 170WG(1) of the Workplace Relations Act 1996 when it required persons who were employed in the Australian Public Service to enter into Australian Workplace Agreements as a condition of obtaining employment with ENA.

Members of the class are persons formerly or presently employed by the Commonwealth of Australia who in or about March and/or April 1998 were offered employment by ENA, and were required by ENA to enter into an AWA as a condition of obtaining the said employment with ENA.

Such persons are members of the class whether or not they accepted the offer of employment with ENA.

The relief sought by the application is:

· a declaration that ENA contravened s 170WG(1) of the Act;

·     an order imposing penalties upon ENA in respect of its alleged contraventions;

and

·     an order that the AWAs entered into are void and of no effect.

It is contended on behalf of ENA that even if duress was applied in connection with the AWAs by ENA in breach of s 170WG(2) of the Workplace Relations Act 1996 the Court does not have the power to order that the AWA’s entered into are void and of no effect.

There are also issues about what would be the effect of declaring the AWAs void (if such a remedy is available) on both the continuation of the employment and also the terms and conditions of employment of members of the group still employed by ENA whose employment is covered by AWAs.  ENA contends that if an order is made declaring the AWAs void then the terms and conditions of many of the employees will be governed by the Employment National (Administration) Award 1999.

On 22 December 1999 the Federal Court directed that this notice be published to inform class members of their rights.

If you are a member of the class you have a right to opt out of the proceeding.  If you opt out you will not be included in any judgment ultimately made.

If you wish to opt out of the proceeding you must give written notice by 4.00pm on 18 February 2000 to:

·     The Registrar, Federal Court of Australia, Queen’s Square, Sydney, NSW 2000;

or

·     Steve Ramsey, Solicitor, 1^st Floor, 40 Brisbane Avenue, Barton ACT 2600, the solicitor for the applicants; or

·     Michael Serong, c/- Andersen Legal, 30 Elizabeth Street, Melbourne, Vic 3000, the solicitor for ENA.   

A copy of the notice to opt out may be obtained from Steve Ramsey (tel: [phone]) or Michael Serong (tel: [phone]).

If you do not opt out, then you remain a member of the class and part of the proceeding and you will be bound by any judgment that might ultimately be given.