FEDERAL COURT OF AUSTRALIA
Wilkinson v Wilson Security Pty Ltd [2022] FCA 756
File number: WAD 138 of 2021 Judgment of: COLVIN J Date of judgment: 29 June 2022 Catchwords: REPRESENTATIVE PROCEEDINGS - application for orders under s 33N(1)(d) of the Federal Court of Australia Act 1976 (Cth) for the proceeding to no longer continue as a representative proceeding - where proceeding concerns claims under s 545 of the Fair Work Act 2009 (Cth) - where the representative applicant is unrepresented - where there exist over 200 group members - where representative applicant does not oppose the application - orders made requiring notice of the application to be provided to group members - orders made providing for a period for group members to notify of any objections - orders made declassing the proceeding if no objections are notified - orders made for the matter to be listed if any objection is notified Legislation: Fair Work Act 2009 (Cth) s 545
Federal Court of Australia Act 1976 (Cth) s 33N, Part IVA
Native Title Act 1993 (Cth) s 85
Cases cited: Boase as Trustee for Boase Family Trust v Brook [2015] WASC 23
Collier v Hicks (1831) 2 B & A 663
Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583
Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323
McIntyre v Eastern Prosperity Investments Pte Ltd (No 4) [2002] FCA 1133
Miller v South Australia (Far West Coast Sea Claim) [2017] FCA 790
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289
Schagen v The Queen (1993) 8 WAR 410
Simto Resources Ltd v Normandy Capital Ltd [1993] FCA 468; (1993) 10 ACSR 776
Division: Fair Work Division Registry: Western Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 24 Date of hearing: Determined on the papers Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Mr SJ Wood QC with Mr M Felman SC and Ms R Howe Solicitor for the Respondents: Seyfarth Shaw Australia ORDERS
WAD 138 of 2021 BETWEEN: PETER LESLIE WILKINSON
Applicant
AND: WILSON SECURITY PTY LTD (AB 90 127 406 295)
First Respondent
JOSE CANADAS
Second Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
29 JUNE 2022
THE COURT ORDERS THAT:
1.Pursuant to s 33X(5) and s 33Y(2) of the Federal Court of Australia Act 1976 (Cth) (the Act), the form and content of the notices set out in Annexure A be approved (the Notice).
2.Pursuant to s 33X(5) and s 33Y(3) of the Act, the Notice is to be given to group members no later than 8…
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- AGLC
- Wilkinson v Wilson Security Pty Ltd [2022] FCA 756
- Case
- [2022] FCA 756
- Decision Date
CaseChat Overview and Summary
The court considered the relevant statutory provisions and case law. The court found that the proceeding should be declassed on the basis that it was inappropriate for the proceeding to continue as a representative proceeding because the representative applicant was unrepresented and not able to adequately advance the interests of the group members. The court approved the form and content of the notices to be given to the group members and made orders requiring the respondents to send those notices to the group members. The court also made orders providing for a period for group members to notify of any objections to the declassing application, declassing the proceeding if no objections are notified, and listing the matter if any objection is notified.
In summary, the court granted the respondents' application for the proceeding to no longer continue as a representative proceeding and made orders in relation to the group members, including orders requiring notice of the application to be provided to the group members and a period for group members to notify of any objections. If no objections are received, the proceeding will no longer continue as a representative proceeding and any limitation period that applies to the claim of any group members will re-start. If any objections are received, a hearing will be convened to consider the objection.
Orders
Orders of the court
1. Pursuant to s 33X(5) and s 33Y(2) of the Federal Court of Australia Act 1976 (Cth) (the Act), the form and content of the notices set out in Annexure A be approved (the Notice).
2. Pursuant to s 33X(5) and s 33Y(3) of the Act, the Notice is to be given to group members no later than 8 July 2022 according to the following procedure:
(a) the first respondent will cause the Notice to be sent to each of the 203 group members it has identified as falling within the group member definition set out in the further amended originating application filed 9 March 2022; and
(b) such Notice to be sent by email to the most recent email or mail address held by the first respondent in respect of that group member.
3. Pursuant to s 33X(5) and s 33Y(3) and (6) of the Act, 29 July 2022 be fixed as the date by which any group member who opposes the respondents' application must notify the parties and the Federal Court of Australia Registry of the basis of the opposition to the respondents' application and whether they wish to be heard by sending an email to:
(a) the Federal Court Registry at waregistry@fedcourt.gov.au; and
(b) Mr Chris Gardner at cgardner@seyfarth.com; and
(c) Mr Peter Wilkinson at peterrapid@gmail.com.
4. If no such notification is given pursuant to these orders then without further order:
(a) pursuant to s 33N(1)(d) of the Act, on and from 5 August 2022, this proceeding shall no longer continue as a representative proceeding under Part IVA of the Act;
(b) pursuant to s 33ZF of the Act, any limitation period that applies to the claim of any group member, to which the proceeding relates, shall begin to run again from 17 August 2022; and
(c) there be no order as to costs of the representative proceeding.
5. If any notification is given pursuant to these orders then a hearing will be convened on a date to be fixed to consider any application as to the further conduct of these proceedings and whether there should be an order pursuant to s 33N(1)(d) that this proceeding no longer continue as a representative proceeding under Part IVA of the Act.
6. There be no order as to costs of the respondents' application dated 15 March 2022.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE A
PLEASE READ THIS NOTICE CAREFULLY
NOTICE THAT PROCEEDING MAY NO LONGER CONTINUE AS A REPRESENTATIVE PROCEEDING (OR 'CLASS ACTION')
This notice is provided pursuant to orders made by the Federal Court of Australia to inform you about the proceeding.
This notice contains important information about an application brought on behalf of the respondents which, may result in the proceeding no longer continuing as a representative proceeding (or 'class action').
You should read this notice carefully.
If you are unsure of whether you are a group member, or you do not understand the contents of this notice, you should seek your own legal advice without delay.
WHAT IS A CLASS ACTION?
(1) A class action is a type of legal proceeding in which the claims of a group of people (that is, group members) are brought in a single proceeding. A class action is brought by one or more 'applicants' (also called 'lead applicants') on behalf of group members. A class action is also known as a 'representative proceeding'.
AM I A GROUP MEMBER?
(2) A class action (also known as a 'representative proceeding') was commenced on 16 June 2021 by Peter Wilkinson in the Federal Court of Australia against Wilson Security Pty Ltd (Wilson Security) and Mr Jose Canadas on behalf of all persons who were, between the period 31 March 2015 and 22 July 2021 (Relevant Period):
(a) covered under the Security Services Industry Award 2010 which became the Security Services Industry Award 2020 when it commenced on 18 June 2020;
(b) employed by the first respondent (Wilson Security); and
(c) worked at one or more of the following sites located on the Burrup Peninsula, near Karratha, namely:
(i) Karratha Gas Plant;
(ii) Pluto LNG Park;
(iii) King Bay Supply Base; and
(iv) Burrup Materials Facility;
(group members)
(3) Group members in the class action include the estates of deceased persons who meet the criteria set out in paragraph 2(a) to (c) above.
WHAT IS THE CLASS ACTION ABOUT?
(4) The class action has been commenced by Mr Wilkinson in his own capacity and on behalf of group members.
(5) Wilson Security and Mr Canadas are the respondents to the class action.
(6) The class action arises from Mr Wilkinson's employment by Wilson Security as a Facilities Protection Officer at:
(a) Karratha Gas Plant;
(b) Pluto LNG Park;
(c) King Bay Supply Base; and
(d) Burrup Materials Facility.
(7) Wilson Security provided security services at these sites throughout the Relevant Period.
(8) The claims against Wilson Security are set out in the further amended statement of claim dated 9 March 2022.
(9) Wilson Security and Mr Canadas are defending the class action and Mr Wilkinson's personal claims.
(10) In summary, the claims are that Wilson Security variously contravened the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Regulations 2009 (Cth) (Regulations), the Security Services Industry Award 2010 (and its replacement, the Security Services Industry Award 2020) by:
(a) Roster claims: not providing the entitled minimum number of long breaks per roster cycle; rostering and directing employees to work more than 48 ordinary hours without a long break; directing employees to perform work outside rostered hours of duty without payment; failing to prepare rosters showing the times employees start and finish work; providing payslips which, it is alleged, Wilson Security 'knew to be materially misleading' and directing Mr Wilkinson and group members to work in excess of 12 hours per shift;
(b) Payslips claims: not providing payslips containing information required by the Regulations; not correcting or updating payslips given to Mr Wilkinson and group members; and providing backpay payslips that omitted information required by the Regulations;
(c) Classification claims: failing to classify in accordance with the relevant awards; and improperly classifying Mr Wilkinson at Level 2 classification rather than Level 4 or 5; and
(d) Miscellaneous claim: not paying the permanent night shift allowance of 30%.
(11) Of these contraventions, Mr Wilkinson alleges that five were 'serious contraventions' by operation of s 557A of the FW Act. It is also alleged that Mr Canadas was 'involved' in some of the contraventions of Wilson Security by operation of s 550 of the FW Act.
WHY AM I RECEIVING THIS NOTICE?
(12) To date, Mr Wilkinson has not been legally represented and has been conducting the class action himself.
(13) On 15 March 2022, the respondents made an application for orders under s 33N(1)(d) of the Act that the proceeding no longer continue as a representative proceeding (or 'class action') (this application is called a 'declassing application').
(14) The basis of the respondents' declassing application is that it is inappropriate that the claims of group members be pursued by way of a class action because Mr Wilkinson and group members do not have any legal representation. The respondents' position is that Mr Wilkinson's lack of legal knowledge and training and his conduct of the proceeding to date means that he is not able to adequately advance group members' interests in the conduct of the class action.
(15) Mr Wilkinson does not oppose the respondents' application.
(16) The Court has ordered that Wilson Security give notice to group members of certain matters which we set out in more detail below.
WHAT HAPPENS IF THE PROCEEDING NO LONGER CONTINUES AS A REPRESENTATIVE PROCEEEDING/CLASS ACTION?
(17) When this class action was started on 16 June 2021 by Mr Wilkinson, the limitation period that applied to the claim of a group member to which this class action relates was suspended. This means that any limitation period which applied to your claim as a group member in this proceeding was paused.
(18) If the proceeding no longer continues as a class action, any limitation period that applied to your claim will re-start. This means whatever time you had available to commence your own claim as at the start of this proceeding remains available to you once the limitations period starts running again.
DO I NEED TO DO ANYTHING?
(19) No, there is no requirement for you to do anything.
(20) But if you oppose the orders taking effect in a way that will result in the proceedings no longer continuing as a class action, you must notify the parties and the Federal Court by 29 July 2022 of your objection and why you oppose those orders. You should also notify the Federal Court and the parties whether you want to appear at the hearing of the respondents' declassing application and whether you will be represented by a lawyer at that hearing.
(21) Any notification of an objection should be made to the Federal Court and the parties by sending an email titled 'WAD 138/2021 Objection to Declassing Application' to:
(a) Federal Court Registry: waregistry@fedcourt.gov.au;
(b) Mr Chris Gardner: cgardner@seyfarth.com; and
(c) Mr Wilkinson: peterrapid@gmail.com.
(22) In the event that no objections are received, orders pursuant to s 33N(1)(d) of the Act will take effect, on and from 5 August 2022 and the proceeding no longer continue as a class action ('representative proceeding'). In that event any limitation period that applies to the claim of any group members to which this proceeding relates shall begin to run again from 17 August 2022.
(23) However, if any objection(s) is received, the Court will timetable a hearing to consider the objection. The date of the hearing of that application, if it is necessary, has not been fixed. If a hearing is necessary, any party who has objected will be notified of the date of the hearing.
Background
Background to the litigation
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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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