Turner v TESA Mining (NSW) Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

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

File number: ACD 46 of 2018
Judgment of: MURPHY J
Date of judgment: 26 April 2022
Catchwords: PRACTICE AND PROCEDURE – representative proceeding – application under s 33V of the Federal Court of Australia Act 1976 (Cth) for approval to discontinue representative proceeding – principles relevant to approval of discontinuance – principles relevant to the limitation period for a group member’s claim beginning to run again under s 33ZE – order under s 33V(1) and 33ZF that the limitation period starts to run again – discontinuance approved
Legislation:

Fair Work Act 2009 (Cth)

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

Federal Court of Australia Act 1976 (Cth)

Federal Court of Australia Amendment Act 1991 (Cth)

Federal Court Rules 2011 (Cth)

WorkPac Pty Ltd (Coal) Industry Enterprise Agreement 2012

WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007

Cases cited:

Adams v Navra Group Pty Ltd [2019] FCA 1157

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

Automotive, Food, Metals Engineering, Printing and Kindred Industries Union v Mechanical Engineering Services Pty Ltd (No 2) [2008] FCA 1249; 175 IR 351

Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610

Calinoiu v QLD Law Group – A New Direction Pty Ltd [2019] FCA 2194

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

Gill v Ethicon Sarl (No 4) [2019] FCA 1814

Kelly v Willmott Forests (No 4) [2016] FCA 323; 335 ALR 439

Laine v Thiess Pty Ltd [2016] VSC 689

Lam v Rolls Royce PLC (No 5) [2016] NSWSC 1332

McKenzie v Cash Converters International Ltd (No 3) [2019] FCA 10

McMullin v ICI Australia Operations Pty Ltd [1998] FCA 658; 84 FCR 1

Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited [2017] FCAFC 98; 252 FCR 1

Mercedes Holdings Pty Ltd v Waters (No 1) [2010] FCA 124; 77 ACSR 265

O’Neill v Mann [2000] FCA 1680; 175 ALR 742

Parkin v Boral Limited (Class Closure) [2022] FCAFC 47

Simonetta v Spotless Group Holdings Limited [2017] FCA 1071

Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia (No 2) [2020] FCA 215

Skene v WorkPac Pty Ltd [2016] FCCA 3035

Turner v Bayer Australia Ltd [2021] VSC 241

Watson v Maximus Holdings (NSW) Pty Ltd [2021] FCA 87

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

WorkPac Pty Ltd v Rossato [2021] HCA 23; 392 ALR 39

WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536

Wotton v Queensland [2009] FCA 758; 109 ALD 534
Division: Fair Work Division
Registry: Australian Capital Territory
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 74
Date of last submissions: 17 December 2021
Counsel for the Applicant: Mr J Fetter
Solicitor for the Applicant: Adero Law
Counsel for the First and Second Respondents: Mr J Kirkwood
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Details
Case
[2022] FCA 435
Decision Date

CaseChat Overview and Summary

The Federal Court was asked to decide on an application by the applicant, Turner, to discontinue a representative proceeding against TESA Mining (NSW) Pty Ltd and others. The applicant and the group members, who were all employed by TESA, alleged that they were wrongly classified as casual employees and were denied entitlements such as paid annual leave and redundancy pay. The court had to determine whether the proceeding could be discontinued without notice to the group members and whether the limitation period for the group members’ claims should start again if the proceeding was discontinued.

The court held that it was inappropriate to grant leave to discontinue the proceeding without giving notice to the group members, as they needed to make informed decisions about their rights. The court also held that if the proceeding was discontinued, the limitation period for the group members’ claims should start again from 60 days after the filing of a notice of discontinuance. The court approved the discontinuance on the condition that notice was given to the group members and that the limitation period for their claims started again.

The court ordered that the proceeding be discontinued, with the limitation period for the group members’ claims starting again 60 days after the filing of a notice of discontinuance. The court also ordered that there be no order as to costs of the interlocutory application for approval of the discontinuance or in the proceeding, and that all existing orders as to costs be vacated. The court declared that the order for discontinuance did not affect any rights of the applicant or any group member in the proceeding to pursue the 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) (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 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. 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

In circumstances where it is likely that many group members are aware of the proceeding, I consider it to be plainly inappropriate to grant leave to discontinue the proceeding without giving notice to group members. The principal purpose of a notice under ss 33X and 33Y of the Act is to ensure that group members can make informed decisions concerning their rights or interests: Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited [2017] FCAFC 98; 252 FCR 1 at [88] (Jagot, Yates and Murphy JJ). Unless group members are given notice of the proposed discontinuance and the terms upon which that is proposed to occur, they may not know: (a) that their claims are no longer being pursued in the proceeding and that they may lose their rights to bring their own claim by operation of the applicable limitation period; (b) that the proposed discontinuance is on terms that they remain able to bring any individual claim connected to their employment with TESA; (c) the reasons for the proposed discontinuance and therefore whether they should object to it; and (d) that they may seek to be substituted as the representative party on the basis that the applicant is no longer adequately representing his or her interests (s 33T).THE BACKGROUNDThe factual background The applicant and the group members (the claimants) were employed by TESA which is a labour hire company. TESA supplied them to work at the Mine operated by a BHP subsidiary, the third respondent, Mt Arthur Coal. Upon hiring the claimants, they were provided with a document entitled Casual Employment Agreement and a covering letter which provided that the agreement was contractual and excluded previous representations made by TESA. The Casual Employment Agreement stated that the claimants were employed as “casuals”; that they would work hours that may vary; that they had no guarantee of ongoing employment; and provided a flat hourly rate which was determined “having regard to” the casual loading applicable under any applicable enterprise agreement made under the FWA, in this case, the TESA Agreement. It also provided that variations would be in writing only. After hiring, the claimants were assigned to work at the Mine, where they were allocated to crews that worked according to a regular roster. On 1 September 2014, the claimants were told that TESA would no longer be supplying labour to the Mine after 27 September 2014. After that last shift, most of the claimants remained at the Mine working for another employer, although some (including the applicant) went to work for TESA at other mines, and others exited the mining industry altogether. After the last shift on 27 September 2014 TESA did not pay the applicant or group members any moneys on account of accrued annual leave, accrued personal leave or redundancy pay. The proceeding alleges that, at law, the applicant and group members were not casual employees, and that they were wrongly denied paid annual leave and other entitlements of non-casual employees under the FWA and the TESA Agreement. The Skene litigation

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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