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[2021] FCA 223
Federal Court of Australia
2021-03-12
Perram J
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Opt Out and Registration 2. Pursuant to ss 33J and 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and subject to any further order of the Court, any Group Member who wishes to (a) opt out of this proceeding must do so by filing with the Court the required notice in the form at Schedule A to Annexure A to these orders (Opt Out Notice); or (b) have their claim considered in the mediation which has been ordered in this proceeding, must register for this proceeding by completing a Registration Form online, which is made available at web address www.aderolaw.com.au/class-actions/woolworths/ before 4:00pm on 21 May 2021 (Deadline). 3. In order to register for the purpose of Order 2, a Group Member shall provide or take reasonable steps to provide: (a) the Group Member's name and address and/or email address and a contact phone number; and (b) accurate details of the Group Member's employment with the Respondents, including the Group Member's Woolworths Employee ID, the date the Group Member's employment commenced, the positions held during the course of the Group Member's employment with the Respondents, the hours that the Group Member alleges they were required to, and did, work, and the date the Group Member's employment with the Respondents ended.
Notice to Group Members 4. Pursuant to s 33X of the FCA Act, notice (Notice to Group Members) is to be given to Group Members of the commencement of the proceeding and: (a) their right to opt out of the proceeding; (b) their right to register for the proceeding if they wish to participate in any distribution of any amount agreed in a settlement of the proceeding; and (c) their right to do nothing. 5. The form and content of the Notice to Group Members (including the Opt Out Notice) at Annexure A to these orders be approved for the purposes of s 33Y(2) of the FCA Act as the notice that is to be given to Group Members pursuant to s 33X of the FCA Act. 6. The Notice to Group Members (including the Opt Out Notice) may be amended by the parties before the Notice to Group Members is posted, emailed, or published in order to correct any postal, website, email address, or telephone number or any typesetting, typographical, or other non-substantive errors. 7. If the lawyers for any party receive a notice purporting to be an Opt Out Notice referable to this proceeding, the lawyers must file the notice in the New South Wales Registry of the Federal Court of Australia within five (5) business days after receipt, with a notation as to the date of the receipt, and the notice shall be treated as an Opt Out Notice received by the Court at the time it was received by the lawyers. 8. The parties' lawyers be granted leave to inspect the Court file for the purpose of copying any Opt Out Notices that have been filed in the proceeding.
Third-party mailing service provider 9. A third-party mailing service provider is to be used for the purpose of distributing the Notice to Group Members as required by Order 12. 10. The Applicants are responsible for engaging the third-party mailing service provider, and the cost of the third-party mailing service provider engaged to undertake the distribution of the Notice to Group Members and Unregistered Group Member Cover Letter under Order 12 is to be paid by the Applicants on the basis that those costs will be the Applicants' costs in the proceeding. 11. By two (2) business days from the date these Orders are made, the Applicants shall provide a copy of Order 12, including the Protocol, to the third-party mailing service provider.
Notice Distribution 12. Pursuant to s 33Y(3) of the FCA Act, the Notice to Group Members is to be given to group members according to the following procedure: Currently Registered Group Members (a) in the case of Group Members who have either entered into a written retainer agreement with Adero in relation to these proceedings or who have otherwise already registered for this proceeding with Adero on or before the date these Orders are made (Currently Registered Group Members), by no later than seventeen (17) business days from the date these Orders are made, the Applicants will cause the Notice to Group Members and Registered Group Member Cover Letter (in the form at Annexure C to these orders) to be sent to those Group Members at the email addresses previously provided to Adero, or by ordinary post in the event that they have not specified an email address; and Currently Unregistered Group Members (b) in the case of Group Members who have not entered into a retainer agreement with Adero or otherwise not already registered for this proceeding with Adero on or before the date these Orders are made (Currently Unregistered Group Members): (i) by no later than one (1) business day from the date these Orders are made, Adero will provide the Respondents' lawyers with a list of Currently Registered Group Members (List of Registered Group Members); (ii) by no later than fourteen (14) business days from the date these Orders are made, the Respondents are to provide the third-party mailing service with the names, and the last known email and postal addresses in the "Success Factors" or "Preceda" databases, of all persons who are not on the List of Registered Group Members but who were paid a salary and: A. were employed by the First Respondent in a position the title of which was, or included the word, "manager" in a supermarket, during the period 30 November 2013 to 29 November 2019; or B. were employed by the First Respondent in a position the title of which was, or included the word, "manager" in a Big W Department Store (including Big W Optical) during the period 25 June 2014 to 24 June 2020; or C. were employed by the Second Respondent in a position the title of which was, or included the word, "manager" in a supermarket or a Big W Department Store (including Big W Optical) during the period 25 June 2014 to 24 June 2020; D. to the extent that the Respondents are not able to identify whether a person who meets one of the criteria in (A), (B) or (C) above is on the List of Registered Group Members, their name and the last known email and postal address for them in the "Success Factors" or "Preceda" databases is to be provided to the third-party mailing service provider; (iii) by no later than seventeen (17) business days from the date these Orders are made, the Applicants are to cause the third-party mailing service to send the Notice to Group Members and Unregistered Group Member Cover Letter (in the form at Annexure B to these orders) to the Currently Unregistered Group Members in accordance with the requirements set out in the protocol at Annexure D to these Orders (Protocol). 13. Should either party become aware of any actual or potential non-compliance with the Protocol by them or the third-party mailing service, that party is to notify the other within five (5) business days of becoming so aware. The Applicants and the Respondents are directed to advise the Court of any such non-compliance by email to the Associate of Justice Perram. 14. The List of Currently Registered Group Members provided to the lawyers for the Respondents in accordance with Order 12 is to be kept confidential to: (a) the Respondents and its legal advisors; (b) those officers and employees of the Respondents who have the conduct of the proceeding on behalf of the Respondents and/or are involved in providing instructions for the purpose of the proceeding; and (c) any expert(s) retained by the Respondents in the proceeding.
Provision of Registration Data before Mediation 15. By 25 May 2021, the Applicants serve on the lawyers for the Respondents, on a confidential and without prejudice basis, the following information provided by each Group Member who has registered by the Deadline in accordance with Order 2(b) above, to the extent that such information is provided (Registration Data): (a) the Group Member's name; (b) the Group Member's address and email address; (c) the Group Member's date of birth; (d) the Group Member's Woolworths Employee ID; and (e) the date that the Group Member's employment with the Respondents commenced. 16. The Registration Data served on the lawyers for the Respondents in accordance with Order 15 is to be kept confidential to: (a) the Respondents and their legal advisors; (b) those officers and employees of the Respondents who have the conduct of the proceeding on behalf of the Respondents and/or are involved in providing instructions for the purpose of the proceeding; and (c) any expert(s) retained by the Respondents in the proceeding.
Evidence 17. Order 2 of the orders made on 23 September 2020 is vacated.
Mediation 18. Order 7 of the orders made on 23 September 2020 is vacated. 19. Pursuant to s 53(1) of the FCA Act, these proceedings are referred to a mediation, which is to occur by 11 June 2021.
Case Management 20. The matter be listed for case management hearing on 2 July 2021. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Annexure A SALARIED MANAGER UNDERPAYMENT CLASS ACTION PROCEEDINGS BROUGHT AGAINST WOOLWORTHS (Baker & Another v Woolworths Group Limited & Another, NSD 2004 of 2019, Federal Court of Australia) NOTICE OF YOUR RIGHT TO REGISTER, OPT OUT, OR DO NOTHING KEY POINTS You are getting this notice because it is likely that you are a class member in the underpayment class action legal proceeding that has been filed in the Federal Court of Australia against Woolworths. The matter is being mediated, which means there will be discussions between the parties that could lead to a settlement. You can do one of three things in response to this notice:
ABOUT THE CLASS ACTION A class action is a legal proceeding brought by someone on behalf of a group of people with similar claims (called a "class"). This class action has been commenced in the Federal Court of Australia against Woolworths Group Limited and Woolworths (South Australia) Pty Ltd. It is made on behalf of salaried team members who worked at Woolworths Supermarkets, Woolworths Metro, or BIG W from 30 November 2013 to when the legal proceeding was filed (the Relevant Period) whose position title was, or included the word, manager. The class action alleges that, if a manager's entitlement under the General Retail Industry Award 2010 ("Award") was higher than their annual salary during the Relevant Period, then they should have been paid the higher amount. The class action legal proceeding seeks to recover any additional amounts that should have been paid, and have penalties (like a fine) imposed on Woolworths. If ordered by the Court, compensation for underpayments and penalties may be paid to eligible class members. WOOLWORTHS PAYMENTS Woolworths has carried out a "Salaried Team Pay Review", which is not associated with the class action, to identify shortfalls in payments based on Woolworths' records as to the hours each salaried manager worked. Woolworths has made payments of these shortfalls, plus interest and superannuation, in accordance with its calculations. Woolworths has also set up a review process, separate to the class action, as a way for you to resolve directly with Woolworths any queries or concerns about whether you may be entitled to an additional payment and if so, how much. If your query or concern is not resolved directly with Woolworths to your satisfaction, you may refer it to an independent review process that is chaired by former Fair Work Commissioner, Mr Greg Harrison. Woolworths' Salaried Team Pay Review is a separate process to the class action legal proceeding, and you can access it directly at no cost. You do not have to pay any part of a payment you may receive from that process to any lawyers, unless you directly decide to do so. Details are available at: https://team.woolworths.com.au/faqs.html#/login You are able to participate in both the class action legal proceedings and Woolworths' Salaried Team Pay Review process simultaneously, and participation in one does not affect your eligibility to participate in the other. Woolworths may be entitled to offset any payments made to you in connection with its Salaried Team Pay Review against any underpayment established by way of the class action legal proceedings. COSTS OF THE CLASS ACTION If any money is recovered from Woolworths as a result of the class action legal proceeding, Adero Law (the Applicants' lawyers) will ask the Court to allocate a portion of that money and apply it towards legal costs, so that the costs are shared by everyone who obtains money from the class action. Adero Law may also ask the court for an additional 25% increase to their legal costs, which would also be paid from any proceeds of the class action, to reflect the risk of undertaking the class action on a no win, no fee basis. For example, if Adero Law's total fees were $3 million, the extra 25% would mean they receive an extra $750,000 or $3.75 million in total. Adero Law's fees are subject to Court approval, which will consider the interests of class members. If the class action legal proceeding is successful or settled on a basis approved by the Court, all legal costs will be taken from money recovered from Woolworths in the class action legal proceeding. You will not be required to take money from your own pocket to pay Adero Law for its legal services. If the class action legal proceeding is unsuccessful, class members will not be required to pay any legal costs. POSSIBLE SETTLEMENT - AND THE NEED TO REGISTER TO PARTICIPATE The Applicants and Woolworths have been ordered to take part in a mediation by mid-2021. The mediation will only consider the claims of class members who register. Accordingly, if you want your claim in the class action legal proceeding to be considered in that mediation (and therefore have the opportunity to share in any settlement), you need to register by 21 May 2021. If settlement is reached, it will not become effective unless it is approved by the Court. That involves the Court assessing whether it is a fair and reasonable compromise. COPIES OF RELEVANT DOCUMENTS The allegations made against Woolworths are set out in an Amended Statement of Claim, and Woolworths' response is set out in its Defence. These documents are available at https://www.aderolaw.com.au/class-actions/woolworths/. YOUR OPTIONS You have three options:
Federal Court of Australia District Registry: New South Wales Division: Fair Work Cameron Baker and another Applicants Woolworths Group Limited (ABN 88 000 014 675) and another Respondents To: nswdr@fedcourt.gov.au Subject Line: Opt Out Notice NSD2004/2019 OR Federal Court of Australia Registry Locked Bag A6000 Sydney South, NSW 1235 The person named below as a Group Member in this class action gives notice under section 33J of the Federal Court of Australia Act 1976 (Cth) that the Group Member is opting out of the class action. Name of Group Member (print): Postal address of Group Member: Woolworths Employee ID (optional): Telephone: Email:
If you are signing as the solicitor or representative of the Group Member: Name of person completing this form (print): Authority of person completing this form (e.g. power of attorney, lawyer): Postal address of person completing this form: Telephone of person completing this form: Email of person completing this form:
Date: ………………………………. Signature: ………………………………. Print name: ………………………………
Annexure B Dear Potential Class Member, salaried manager underpayment class action proceedingS against WOOLWORTHS (NSD 2004/2019 - Baker and Anor v Woolworths Group Limited and Anor) You are receiving this correspondence because, based on the information available, you may have been employed at a Woolworths supermarket or Big W department store (including Big W Optical) from 30 November 2013, in a position whose title was, or included the word, manager. If so, you may be a Class Member in the Salaried Manager Underpayment Class Action Proceeding against Woolworths. THE NOTICE ENCLOSED WITH THIS CORRESPONDENCE HAS BEEN APPROVED BY THE FEDERAL COURT OF AUSTRALIA AND PROVIDES YOU WITH IMPORTANT INFORMATION CONCERNING YOUR RIGHTS AND PARTICIPATION IN THE SALARIED MANAGER UNDERPAYMENT CLASS ACTION PROCEEDING AGAINST WOOLWORTHS. It is therefore very important that you read the enclosed Notice carefully and make a decision before the deadline, being 21 May 2021. If there is anything of which you are unsure, you should seek independent legal advice. Annexure C Dear Client, salaried manager underpayment class action PROCEEDINGS against WOOLWORTHS (NSD 2004/2019 - Baker and Anor v Woolworths Group Limited and Anor) You are receiving this correspondence because you have already signed a retainer agreement with Adero Law in respect of the Salaried Manager Underpayment Class Action Proceedings against Woolworths. THE NOTICE ENCLOSED WITH THIS CORRESPONDENCE HAS BEEN APPROVED BY THE FEDERAL COURT OF AUSTRALIA AND PROVIDES YOU WITH IMPORTANT INFORMATION CONCERNING YOUR RIGHTS AND ONGOING PARTICIPATION IN THE SALARIED MANAGER UNDERPAYMENT CLASS ACTION PROCEEDING AGAINST WOOLWORTHS. It is therefore very important that you read the enclosed Notice carefully and make a decision before the deadline, being 21 May 2021. Please note that because you have already signed a retainer agreement with Adero Law you are registered for the mediation and are not required to take any further steps at this time if you wish to remain in the class action. If there is anything of which you are unsure, you should seek independent legal advice. Sincerely, Adero Law Annexure D Notice Distribution Protocol
PERRAM J 1 The parties have applied to the Court for orders inter alia that a notice to group members ('opt-out notice') be issued pursuant to s 33X of the Federal Court of Australia Act 1976 (Cth) ('the Act'). 2 The parties are largely in agreement as to the form the opt-out notice should take, however, they disagree about a passage on page 9 of the short minutes of order proposed by the Respondents ('Woolworths'). To understand the debate it is necessary to set out not only that passage but also the section preceding it on page 8. The disputed text appears in italics. ABOUT THE CLASS ACTION A class action is a legal proceeding brought by someone on behalf of a group of people with similar claims (called a "class"). This class action has been commenced in the Federal Court of Australia against Woolworths Group Limited and Woolworths (South Australia) Pty Ltd. It is made on behalf of salaried team members who worked at Woolworths Supermarkets, Woolworths Metro, or BIG W from 30 November 2013 to when the legal proceeding was filed (the Relevant Period) whose position title was, or included the word, manager. The class action alleges that, if a manager's entitlement under the General Retail Industry Award 2010 ("Award") was higher than their annual salary during the Relevant Period, then they should have been paid the higher amount. The class action legal proceeding seeks to recover any additional amounts that should have been paid, and have penalties (like a fine) imposed on Woolworths. If ordered by the Court, compensation for underpayments and penalties may be paid to eligible class members. WOOLWORTHS PAYMENTS Woolworths has carried out a "Salaried Team Pay Review", which is not associated with the class action, to identify shortfalls in payments based on Woolworths' records as to the hours each salaried manager worked. Woolworths has made payments of these shortfalls, plus interest and superannuation, in accordance with its calculations. Woolworths has also set up a review process, separate to the class action, as a way for you to resolve directly with Woolworths any queries or concerns about whether you may be entitled to an additional payment and if so, how much. If your query or concern is not resolved directly with Woolworths to your satisfaction, you may refer it to an independent review process that is chaired by former Fair Work Commissioner, Mr Greg Harrison. Woolworths' Salaried Team Pay Review is a separate process to the class action legal proceeding, and you can access it directly at no cost. You do not have to pay any part of a payment you may receive from that process to any lawyers, unless you directly decide to do so. Details are available at: https://team.woolworths.com.au/faqs.html#/login You are able to participate in both the class action legal proceedings and Woolworths' Salaried Team Pay Review process simultaneously, and participation in one does not affect your eligibility to participate in the other. Woolworths may be entitled to offset any payments made to you in connection with its Salaried Team Pay Review against any underpayment established by way of the class action legal proceedings. 3 The guiding purpose of an opt-out notice is to provide group members with sufficient information about the suit to make an informed decision as to whether to stay in the class or whether instead to opt-out of it: King v GIO Australia Holdings Ltd [2001] FCA 270 at [15] per Sackville, Hely and Stone JJ; Courtney v Medtel Pty Limited [2001] FCA 1037 ('Courtney v Medtel') at [9]-[11] per Sackville J; Gagarimabu v Broken Hill Proprietary Co Ltd [2001] VSC 304 at [19] per Hedigan J. On the other hand, the achievement of that purpose necessarily requires the notice to be comprehensible to its intended recipients. The notice must therefore be in plain English and such that it will make sense to persons who are not lawyers: Komlotex Pty Ltd v AMP Ltd [2020] NSWSC 504 ('Komlotex') at [160], [188] per Ward CJ in Eq; Courtney v Medtel at [10] per Sackville J; McMullin v ICI Australia Operations Pty Ltd (No 6) [1998] FCA 658; 84 FCR 1 at 5 per Wilcox J. 4 There is an obvious tension between these two aims. Too much information too densely expressed will result in a notice which, whilst accurate, will be unsuited to the delivery of its payload. On the other hand, in the pursuit of brevity so much detail of the suit may be lost that there is, in effect, no payload to deliver: see Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 4) [2010] FCA 749 at [20]-[21] per Flick J. 5 The tension becomes increasingly acute the more complex the suit is. It is by no means unknown for a class action to exist in a milieu where there are other parallel class actions and where group members may belong to more than one action. There seems to be no debate in such cases that some reference to the other class actions is necessary in an opt-out notice for a decision to opt in or out of the class would scarcely be made on an informed basis if the group member did not know what other class actions he or she may belong to which raise similar issues: see, eg, Komlotex at [56], [180], [188], [216] per Ward CJ in Eq; Mitsub Pty Ltd v McGraw-Hill Financial Inc (No 2) [2016] FCA 1285 at [12] per Rares J. 6 This case does not present the situation where there are competing class actions. However, it does present a situation where the Respondents have themselves set up an internal mechanism for addressing the underpayments which are alleged. Plainly, the existence of that mechanism is something of which group members need to be informed. The parties are in agreement on this and jointly propose that there should be a section in the opt-out notice dealing with that topic. 7 The question of how detailed the description of the alternate mechanism needs to be is a function of how much information the group members need to have in order to be able to make an informed decision. I do not think that the agreed text is adequate for that purpose. The fact that, at no cost, salaried managers may seek to resolve any underpayment claim directly with Woolworths and may access independent review of any determination which Woolworths makes, also at no cost, is relevant to a group member's decision as to whether they wish to opt out of the proceedings. 8 In my view, the opt-out notice should contain the disputed text. Accordingly, I will make the orders proposed by the parties in the form which includes the disputed text on page 9 of the proposed short minutes of order. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.
Baker
Woolworths Group Limited