Sheehan v Thiess Pty Ltd (No 2)

[2023] FCA 696

FEDERAL COURT OF AUSTRALIA

Sheehan v Thiess Pty Ltd (No 2) [2023] FCA 696

File number:

WAD 542 of 2016

Judgment of:

COLVIN J

Date of judgment:

23 June 2023

Cases cited:

Australian Securities and Investments Commission v Richards [2013] FCAFC 89

Baker v Woolworths Group Limited (No 2) [2022] FCA 534

Fisher (trustee for the Tramik Super Fund Trust) v Vocus Group Limited (No 2) [2020] FCA 579

Fowkes v Boston Scientific Corporation [2023] FCA 230

Lloyd v Belconnen Lakeview Pty Ltd (No 3) [2022] FCA 761

Sheehan v Thiess Pty Ltd [2019] FCA 1762

Thiess Pty Ltd v Sheehan [2020] FCAFC 198

Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925

Division:

Fair Work Division

Registry:

Western Australia

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

13

Date of hearing:

Determined on the papers

Counsel for the Applicant:

Mr J Nicholas

Solicitor for the Applicant:

Nicholas Legal

Counsel for the Respondent:

Mr D Fletcher with Mr J Parkinson

Solicitor for the Respondent:

Kingston Reid

ORDERS

WAD 542 of 2016

BETWEEN:

FRANK SHEEHAN

Applicant

AND:

THIESS PTY LTD

Respondent

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	23 JUNE 2023

THE COURT ORDERS THAT:

1.Pursuant to s 33V and/or s 33ZF of the Federal Court of Australia Act 1976 (Cth), the settlement of the proceeding be approved on the terms set out in:

(a)the Deed of Settlement entered into between the parties, a copy of which is exhibited as annexure JN-1 to the affidavit of Justin Michael Nicholas affirmed 23 December 2022 (Deed); and

(b)the Settlement Scheme agreed between the parties, a copy of which is exhibited as annexure JN-2 to the affidavit of Justin Michael Nicholas affirmed 23 December 2022 (Settlement Scheme).

2.On or before 3 July 2023, for the purposes of s 33X and s 33Y of the Federal Court Act, the applicant shall cause a copy of these orders to be sent by email or post (where an active email address is not available or a bounce back message to a previously sent email has been received) to all group members to the extent such details are available to the applicant.

3.Within seven days of the respondent complying with all of its payment obligations under the Deed and its other obligations under the Settlement Scheme, the respondent shall notify the Court and the applicant:

(a)details of:

(i)the group members (or authorised representatives) that have provided a deed poll (or Administrator/Executor Notice) and Settlement Payment Forms to the respondent, including the date the documents were received; and

(ii)the payment made to those group members, including the date the payment was made; and

(b)that it has complied with its payment obligations under the Deed and its obligations under Settlement Scheme.

4.Pursuant to s 22, s 23 and/or s 33ZF of the Federal Court Act, r 1.32 of the Federal Court Rules 2011 (Cth) and/or the Court's implied jurisdiction, the proceeding be discontinued as and from the date the applicant files the notice of discontinuance in accordance with clause 3.2 and Annexure D of the Deed.

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

REASONS FOR JUDGMENT

COLVIN J:

1. Mr Frank Sheehan worked for Thiess Pty Ltd during the construction phase of the Wheatstone Project near Onslow in Western Australia.  As a representative applicant, on his own behalf and on behalf of 150 other named individuals who worked on the Project, he brought proceedings in this Court in which he claimed that Thiess had failed to pay the full amounts due under the terms of an applicable workplace agreement.  Questions were stated for separate determination.  They were decided favourably to Mr Sheehan as representative applicant:  Sheehan v Thiess Pty Ltd [2019] FCA 1762. An appeal against that decision was dismissed: Thiess Pty Ltd v Sheehan [2020] FCAFC 198. Since then, the parties have reached agreement as to amounts to be repaid. The Court is asked to approve the settlement which contemplates discontinuance of the proceedings on terms recorded in a confidential deed and settlement scheme.

2. Notice of the proposed settlement has been given to group members.  The notice provided for the communication of any objection.  There has been no objection.

   Relevant principles

3. The Court has provided guidance as to the matters which the Court considers it will be appropriate for parties to address in seeking approval of a settlement.  They are designed to focus upon all matters which may bear upon an assessment as to the fairness and reasonableness of the proposed settlement having regard to the interests of group members:  Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 at [19] (Goldberg J); and Fisher (trustee for the Tramik Super Fund Trust) v Vocus Group Limited (No 2) [2020] FCA 579 at [17] (Moshinsky J). There is no definitive list. The question is whether the settlement falls within the range of reasonableness. In undertaking that assessment 'it is not the task of the Court to second-guess or go behind the tactical or other decisions made by the applicant's legal representatives': Fowkes v Boston Scientific Corporation [2023] FCA 230 at [41(3)] (Lee J).

4. The requirement for approval arises because of the representative capacity in which the applicant has conduct of the proceedings and an analogy may be drawn to other instances where the Court requires approval of any settlement:  Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [6], [8] (Jacobson, Middleton and Gordon JJ). In considering whether to approve, the Court should be alive to the possibility that conflicting interests and duties may have influenced the terms of the settlement: Baker v Woolworths Group Limited (No 2) [2022] FCA 534 at [37] (Murphy J).

5. The same approach applies where, as here, the settlement takes the form of terms upon which the proceedings will be discontinued:  Lloyd v Belconnen Lakeview Pty Ltd (No 3) [2022] FCA 761 at [2]‑[6] (Lee J).

   The proposed settlement

6. Settlement terms have been negotiated and agreed with the assistance of legal representation.  An opinion of experienced counsel has been obtained which is to the effect that the settlement terms are reasonable.  Agreed gross payment amounts have been agreed for each group member based upon available information as to the work undertaken by them on the Project.  For the nine group members for whom no record has been found of their engagement on the Project during the period the subject of the claim, the gross payment amount is nil.  If all gross payments are made to group members then the total amount will be $858,116.15.

7. The underpayments related to journey time.  On the evidence in support of the proposed settlement a reasonable assessment has been made of the appropriate time to be allowed and the gross payments are based on that assessment.

8. It has been agreed that Thiess will pay $60,000 as a contribution to the legal costs of Mr Sheehan as representative applicant.  There is no litigation funding agreement.  No part of the agreed gross payment amounts will be applied to meet legal costs.

9. The settlement deed records terms agreed on the basis of no further admissions of liability and on a full and final basis with terms as to release, discharge and bar to further proceedings.

10. A group member is not bound to participate in the settlement and may choose not to receive the relevant agreed gross amount and thereby preserve the group member's individual rights.

11. In order to receive an individual gross payment amount as a greed, a group member must sign a deed poll agreeing to the settlement and the release, discharge and bar to further proceedings.  The terms relate to the dispute the subject of the representative proceedings.  It includes a term as to confidentiality which has an exclusion where information has come into the public domain (which would apply to the matters stated in these reasons).  There are agreed mechanisms by which an executor or administrator may claim if a group member is deceased.

12. Upon the settlement being carried into effect, it is agreed that the proceedings will be discontinued with no order as to costs or penalty.

    Reasonableness of settlement

13. Having regard to the relevant principles and the agreed terms and after consideration of the opinion of counsel, I am satisfied that the settlement terms are reasonable and that the proposed orders should be made.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

Associate:

Dated:       23 June 2023