The interlocutory application dated 3 July 2024 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
By an originating application dated 18 April 2023, the applicant, Mr Cannan, moves the court for relief as the representative of he and others who, over a defined period, worked as store managers or assistant store managers at the respondent's "The Reject Shop" chain of retail outlets. Amongst other things, the claim alleges that, whilst he and the other group members were employed over the relevant period, they performed work that entitled them to receive various sums pursuant to the provisions of an instrument made under the Fair Work Act 2009 (Cth) (the "FW Act"). Notwithstanding that entitlement, he claims that the payments were not, in fact, made. He moves for relief in the form of compensation, interest and penalties.
By an interlocutory application dated 3 July 2024, the applicant seeks leave to file an amended originating application and an amended statement of claim, as well as various other, ancillary orders (including one that pertains to a cause of action relating to the proper keeping of employment records, which he intends to abandon). It is to that application that this judgment pertains. For the reasons that follow, the relief that is sought must be declined and the interlocutory application will be dismissed.
By his existing statement of claim, the applicant alleges that the terms and conditions of employment relevantly applicable to the group members on behalf of whom his claim is brought were contained within the General Retail Industry Award 2020 (the "Award"), a "modern award" that was made and has force pursuant to provisions of the FW Act. The existing originating application identifies the members of the group as people whom the respondent employed over the relevant period as store managers and assistant store managers, and who were paid less than what the Award required.
By its defence, the respondent denies that the Award had any application to the employment of any of the group members. Instead, it alleges that their employment was governed by The Reject Shop Agreement 2011 (the "2011 EA"), an instrument that was made and had statutory force under other provisions of the FW Act. It appears to be in light of that suggestion that the present application to amend has been made (although, to be clear, nothing turns upon the reasons that animate it).
The proposed amended originating application (the "PAOA") and proposed amended statement of claim (the "PASOC") are both exhibited to an affidavit that the applicant's solicitor, Mr Markham, swore on 3 July 2024, upon which the applicant relied in support of his interlocutory application. In addition to that evidence, the court was provided with a bundle of documents to which it was agreed that regard might be had for present purposes.
The proposed amendments assume multiple dimensions. Most significantly, it is proposed that there be a change to the composition of the class on whose collective behalf the action is brought. Whereas, in its existing form, the suit is brought on behalf of allegedly underpaid employees whose entitlements were regulated by the Award, it is now proposed that the class should comprise "…all persons who were employed by the Respondent as Store Managers and/or Assistant Store Managers on a salaried basis, other than casuals, in the period 24 April 2017 to 18 April 2023 inclusive, and who in any week worked more than 40 hours (if full-time) or more than two hours beyond their ordinary hours of work (if part-time)."
The PASOC seeks to agitate three species of claim. The first concerns claims of underpayment under The Reject Shop Agreement 2014 (the "2014 EA"), an instrument that succeeded the 2011 EA (which, like its predecessor, was made and had statutory force under the FW Act). The second concerns claims of underpayment under the Award. The third concerns alleged breaches of s 62 of the FW Act (upon the terms of which it shall be necessary later to focus).
The first and second of those three species of claim are largely the same, save for the statutory instrument upon which they are based. That arises by reason of the terms of the 2014 EA: it is expressed to cover "Team Members", which it defines to include store managers and assistant store managers, except insofar as they are paid above certain threshold salaries. The members of the group, thus, are split into two categories: namely, store managers and assistant store managers who were paid above those thresholds (on the one hand) and those who were not (on the other). Insofar as concerns the latter (the "Below Threshold Managers"), the PASOC proposes to agitate underpayment claims based upon the application of the 2014 EA. Insofar as concerns the former (the "Above Threshold Managers"), it proposes equivalent claims based upon the application of the Award. In each case, the underpayment claims that are to be agitated concern the non-payment of "unsocial hours" rates, overtime rates, public holiday rates and leave loading under what are said to be the applicable instruments.
The respondent resists the granting of leave to agitate the proposed amendments. It submits that an essential premise upon which the PASOC proceeds - namely, that the Award applied to the employment of Above Threshold Managers - is misconceived. Necessarily, it says, that premise presupposes that the 2011 EA did not apply to any of the Above Threshold Managers from the point that the 2014 EA commenced to operate. That presumption, if correct, would mean that the Award applied to those employees, as the PASOC alleges (because the 2014 EA, by its terms, excludes coverage of Above Threshold Managers). If incorrect, though - as the respondent maintains - it would follow that the 2011 EA continued to cover and apply to Above Threshold Managers after the 2014 EA began to operate.
To understand the respondent's contention, it is necessary to map out the relevant terms of the 2011 EA, the 2014 EA and the FW Act.
The PASOC alleges (and it appears uncontroversially to be the case) that the 2011 EA "commenced operation" on 4 October 2011. By its terms, it was expressed to cover the employment of (as the PASOC puts it) "…employees working in retail shops, including all Salaried Managers". In other words, it covered the employment of Above Threshold Managers and Below Threshold Managers alike. It had a nominal expiry date of 4 October 2014. None of that is presently controversial.
The PASOC pleads that the 2011 EA ceased applying to the employment of the respondent's store managers and assistant store managers (regardless of what they were paid) from 29 December 2014, when the 2014 EA commenced to operate. That is said to have been a consequence of the application of s 58 of the FW Act. Thereafter, it posits that the employment of Above Threshold Managers became the subject of regulation by the Award; and proceeds to allege that there were terms thereof with which the respondent failed to comply.
For the sake of completeness, mention might be made of a further enterprise agreement, The Reject Shop Agreement 2018 (hereafter, the "2018 EA"). It commenced to operate in May 2019; but its coverage expressly excluded all store managers and assistant store managers.
That is a convenient point at which to mention the terms of divs 2 and 3 of pt 2-1 of the FW Act. Sections 52, 53 and 54 of the FW Act (which form part of div 2 of pt 2-1) provide (and provided) relevantly as follows, namely (emphases original):
52 When an enterprise agreement applies to an employer, employee or employee organisation
When an enterprise agreement applies to an employee, employer or organisation
(1) An enterprise agreement applies to an employee, employer or employee organisation if:
(a) the agreement is in operation; and
(b) the agreement covers the employee, employer or organisation; and
(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.
Enterprise agreements apply to employees in relation to particular employment
(2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.
53 When an enterprise agreement covers an employer, employee or employee organisation
Employees and employers
(1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.
…
Enterprise agreements that have ceased to operate
(5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.
Enterprise agreements cover employees in relation to particular employment
(6) A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.
54 When an enterprise agreement is in operation
(1) An enterprise agreement approved by the FWC operates from:
(a) 7 days after the agreement is approved; or
(b) if a later day is specified in the agreement - that later day.
(2) An enterprise agreement ceases to operate on the earlier of the following days:
(a) the day on which a termination of the agreement comes into operation under section 224 or 227;
(b) the day on which section 58…first has the effect that there is no employee to whom the agreement applies.
Note: Section 58…deal[s] with when an enterprise agreement ceases to apply to an employee.
(3) An enterprise agreement that has ceased to operate can never operate again.
Subdivision B and C of div 3 of pt 2-1 of the FW Act are respectively entitled, "Interaction between modern awards and enterprise agreements" and "Interaction between one or more enterprise agreements". For present purposes, the following provisions of those subdivisions loom large, namely (emphases original):
57 Interaction between modern awards and enterprise agreements
(1) A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
(2) If a modern award does not apply to an employee in relation to particular employment because of subsection (1), the award does not apply to an employer, or an employee organisation, in relation to the employee.
…
58 Only one enterprise agreement can apply to an employee
Only one enterprise agreement can apply to an employee
(1) Only one enterprise agreement can apply to an employee at a particular time.
General rule - later agreement does not apply until earlier agreement passes its nominal expiry date
(2) If:
(a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and
(b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and
…
then:
(d) if the earlier agreement has not passed its nominal expiry date:
(i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and
(ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or
(e) if the earlier agreement has passed its nominal expiry date - the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.
…
With those provisions laid out, the misconception inherent in the PAOA and the PASOC becomes apparent. From the point that it commenced to operate (4 October 2011), the 2011 EA covered and applied to the employment of Above Threshold Managers. That reality is accepted; and it was not altered by the coming into operation of the 2014 EA. That (2014) instrument was expressed to cover "team members of the Reject Shop employed in retail shops". As has been rehearsed, "Team Member" was defined so as not to include Above Threshold Managers.
Thus, the 2014 EA did not cover Above Threshold Managers and the PASOC does not allege otherwise. Indeed, the applicant accepts as much. At the time that it (the 2014 EA) commenced to operate, the 2011 EA covered and applied to the respondent's employment of Above Threshold Managers. From that point, the 2011 EA can only have ceased to operate (and, therefore, ceased to have applied to anybody in respect of their employment) if one of the conditions identified in s 54(2) of the FW Act was met. Relevantly (in the absence of termination, as s 54(2)(a) contemplates), the applicant needs to show that s 58 applied so as to reduce to zero the number of the respondent's employees in respect of whose employment the 2011 EA continued to apply.
By its terms, s 58 of the FW Act is employee specific. It serves to ensure, in respect of the employment of a given employee, that only one enterprise agreement can apply at any point in time. It does so by reference to the coverage and nominal expiry of competing instruments. If an enterprise agreement applies in respect of an employee (by reason of s 52 of the FW Act) and a second enterprise agreement that is expressed to cover that same employment commences to operate (by reason of s 54), then only one of them is taken to apply. Which that is depends on whether or not the agreement that was operative earlier in time has passed its nominal expiry date. If it hasn't, then it continues to apply in respect of the employee's employment and the newer instrument does not. If it has, then the newer instrument applies; and the earlier one ceases to apply and can never apply again in respect of that person's employment.
Insofar as concerns Above Threshold Managers, then, the position is as follows. From October 2011, the 2011 EA covered their employment and was in operation; and, therefore, applied in respect of them. The 2014 EA, however, did not cover them. From 29 December 2014 (when it commenced to operate), s 58 operated so as permanently to denude the 2011 EA of application to the employment of those whose employment the 2014 EA covered (including the Below Threshold Managers); but it had no such operation in respect of those whose employment the 2014 EA did not cover (relevantly, the Above Threshold Managers). They continued to be covered by the 2011 EA, which continued to operate - and, therefore, to apply in respect of their employment.
Paragraphs 29 to 31 of the PASOC plead (or propose to plead) as follows, namely:
Both the 2011 EA and the 2014 EA regulated, to some extent, some of the class of persons performing the jobs of [assistant store manager] or [store manager] as a Salaried Manager.
In the premises, both the 2011 EA and the 2014 EA covered the same "employments" for the purposes of FW Act s.58.
In the premises, by operation of FW Act ss.47-49, 52-54, 55 and 58, on and from 29 December 2014:
(c)[sic] the 2011 EA ceased applying to all Salaried Managers, and could never again apply to those employments or jobs;
(a) the Above Threshold Managers (who were not covered by the 2014 EA) had the Award apply to them; and
(b) the Below Threshold Managers (who were covered by the 2014 EA) had the 2014 EA apply to them.
The reference to ss 47-49 of the FW Act can be put to one side (they concern the coverage, operation and application of modern awards).
The premise upon which paragraphs 30 and 31(a) (in particular) are founded is misconceived. The only way that a modern award can be made to apply to the employment of a person whose employment is covered by an operative enterprise agreement is if the agreement ceases to operate because it is terminated: FW Act, s 54(2)(a). An enterprise agreement can only cease to operate by reason of s 58 (and s 54(2)(b)) of the FW Act if a new enterprise agreement or enterprise agreements wholly replace it - that is to say, come into operation with coverage over the employment of all of the employees whose employment the old agreement covered. In that universe, there is no room for the application of a modern award, because s 57(1) would apply to exclude it in preference for the replacement agreement (or, if there are multiple such agreements, one of them).
The 2011 EA has not (and is not alleged to have) been terminated. It is, then, impossible that the Award might apply in respect of any of the employees to whose employment the 2011 EA applied, including those to whose employment it continues (or, at least beyond the commencement of the 2018 EA, continued) to apply - specifically, the Above Threshold Managers. Insofar as it alleges that the respondent failed unlawfully to comply with provisions of the Award that applied in respect of the employment of those employees, the PASOC is misconceived: there were no such provisions.
The applicant seeks to counter that reality by positing that the reference in s 58(2)(b) of the FW Act to a "later agreement…that covers the employee" to whose employment an existing agreement applies should be understood as a reference to coverage otherwise than in the manner that s 53 contemplates. I confess that I have found it a difficult submission to understand: it was suggested that the 2014 EA covers Above Threshold Managers enough to result in the ceased operation and application to them of the 2011 EA (by operation of s 58); but not enough to result in their qualifying for entitlements under it. It was said that coverage in relation to employment for the purposes of s 58 of the FW Act meant coverage in relation to an employee's constituent tasks and duties, rather than the amount that he or she is to be paid.
Although skilfully advanced, I do not accept the applicant's submission. As I see it, the truth is simpler: the 2014 EA did not cover the employment of those who were not "team members". Above Threshold Managers were not "team members". Section 58 had no work to do in respect of their employment; and, in particular, did not qualify the ongoing application to them of the 2011 EA.
There is, it must be said, a contextual feature inherent in the 2014 EA that supports the applicant's contention. Clauses 22.3 and 22.4 of that instrument identify the threshold salary amounts by reference to which assistant store managers and store managers (respectively) are excluded from its coverage. In each case, it is said that those so excluded "…shall be covered by the [Award]". That is, to say the least, a curious stipulation. As a proposition of law, it is probably correct: it seems to be accepted that the Award did (and does) cover the employment of all store managers and assistant store managers, including Above Threshold Managers. But, reading them fairly and in context, those clauses in the 2014 EA are intended to convey a different proposition: namely, that the Award would apply to the employment of Above Threshold Managers.
For the reasons already set out, that proposition is incorrect. The 2014 EA either covers the employment of Above Threshold Managers or it does not. If it does, then the 2014 EA applies to their employment and the Award does not apply: FW Act, s 57(1). If it does not, then the Award still does not apply to their employment because the 2011 EA remains in operation. Either way, the 2014 EA does not bear upon the statutory rules that govern the Award's application and the FW Act does not operate so as to apply the Award to the employment of Above Threshold Managers. To the extent that they contend otherwise, the PAOA and the PASOC are unsustainable.
In Caason Investments Pty Ltd v Cao (2015) 236 FCR 322, 326‑7 [19]‑[21], this court (Gilmour and Foster JJ, Edelman J dissenting) observed:
The power of the Court to grant or refuse leave must be exercised in the way that best promotes the Court's overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible…
The Court's power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated and to avoid a multiplicity of proceedings… The object of the Court is not to punish parties for mistakes made in the conduct of their case, but to correct errors with the result that a decision can be made on the real matters in controversy…
Leave to amend should be granted unless the proposed amendment is futile, such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs…
The principles regulating the striking out of a pleading are similarly well‑settled. In Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 (Niall, Hargrave and Emerton JJA), the Victorian Court of Appeal endorsed (at 599‑600 [50]) the following summary of principle that was enumerated in Wheelahan v City of Casey (No 12) [2013] VSC 316 (Dixon J), namely (references omitted):
…
(b) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;
(c) the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression 'material facts' is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;
(d) as a corollary, the pleading must be presented in an intelligible form - it must not be vague or ambiguous or inconsistent. Thus a pleading is 'embarrassing' within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;
(e) the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;
…
(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing - for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;
(h) it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;
…
(o) the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown; and
(p) if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.
As a "general principle", then, leave to amend a pleading "…should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for": Ron Medich Properties Pty Ltd v Bentley‑Smythe Pty Ltd [2010] FCA 494, [8] (Stone J).
Here, that admittedly low hurdle cannot be cleared. Both of the PAOA and the PASOC proceed upon the untenable premise that, over the period of relevance to this matter, the 2011 EA did not apply in respect of the employment of Above Threshold Managers (such that s 57 of the FW Act should not be understood to preclude the application to their employment of the Award, the provisions of which the respondent is accused of contravening). If the court were to grant leave to permit the applicant to file a new originating application and pleading in the forms that are proposed, each would immediately be liable to strike out. Plainly - and as authority makes clear - there is no point permitting leave to amend in those circumstances.
That alone is reason enough to dismiss the interlocutory application. There are, though, other aspects of the PASOC (in particular) that were the subject of contest, which I should address. They are in the nature of what might conveniently be described as miscellaneous pleading concerns. Most relate to what are said to be conclusory assertions that rest upon facts not stated (the end result of which is said to be confusion about how the applicant's case is put).
I pause at this juncture to say something about the underpayment claims that the applicant intends to prosecute. Initially upon receiving the PASOC, the respondent complained that those claims were embarrassing, in that the pleading identifies that certain entitlements existed and then simply alleges that the respondent failed to honour them. The PASOC itself does not identify what the applicant did to engage the entitlements that are said not to have been honoured; and it is impossible to know how the constituent entitlements are said to have arisen. Instead, the PASOC particularises what it alleges by reference to information that is said to be "available in spreadsheet form".
On the day prior to the hearing of the interlocutory application, counsel for the applicant circulated (at least to the court - it may earlier have been provided to the respondent) an "annexure" to the PASOC (or what he intended might one day become an annexure to an amended pleading), which particularised in further detail the applicant's work history and how it was said to have given rise to the entitlements that the respondent is accused of not meeting. The "annexure" purported to incorporate by reference a spreadsheet - as I understood it, the same spreadsheet to which the PASOC refers.
In combination, then, the "annexure" and that spreadsheet purport to expand upon the otherwise bald assertions contained within the PASOC (namely, that entitlements were conferred upon the applicant but not honoured). After the hearing of the interlocutory application (and in accordance with what was discussed at it), the applicant circulated, both to the respondent and to my chambers, a second PASOC that incorporates the "annexure". His purpose in doing so was to extinguish any suggestion that his pleading (in the amended form that he proposes) would leave the respondent in a position of confusion as to how he says that he performed work for which he was not properly paid.
Slightly unorthodox though all of that is, the respondent did not press the objections that it initially foreshadowed in those regards. Having had it explained, it now accepts that its concerns about the transparency of what is proposed to be alleged against it have been addressed (or, at least, it no longer takes issue with what is to be said). It is unnecessary that I should say any more on that subject.
There is, however, a further issue. The applicant claims that he was entitled to receive penalty rates in respect of the "unsocial hours" and "overtime" that he worked over the relevant period. In each case, the PASOC pleads that work was performed and that it was apt to trigger the entitlements that are said to have gone unpaid. In order that those entitlements were, in fact, payable, it will (and the applicant accepts that it will) be necessary to demonstrate that the work that was done was work that the respondent required the applicant to do. On that issue, the PASOC is conspicuously silent; and the respondent complains that, without knowing how that element of obligation is alleged to have arisen, it is impossible for it to know how the underpayment claims are pressed or how it should respond to them.
Allied to that concern is another that arises from what the PASOC alleges to have been contraventions by the respondent of s 62 of the FW Act. That section prescribes a minimum standard - specifically, in relation to working hours - that forms part of what the FW Act designates as the "National Employment Standards". Relevantly, it provides as follows, namely:
62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee - 38 hours; or
(b) for an employee who is not a full-time employee - the lesser of:
(i) 38 hours; and
(ii) the employee's ordinary hours of work in a week.
…
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee's personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee's role, and the employee's level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee's employer; or
(b) by or under a term or condition of the employee's employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
The PASOC accuses the respondent of having contravened s 62 of the FW Act "…whenever the Applicant and the Group Members performed [more than two hours' overtime per week]". That state of affairs is then said to have been a product of a "Budget System", pursuant to which (I summarise at the risk of over-simplification):
individual retail outlets within the respondent's business were allocated fixed numbers of "staff hours", which were insufficient to meet the work requirements of each such outlet; and
the managers at those outlets were expected to account for the shortfall by personally performing such hours of work as it required.
Section 44 of the FW Act prohibits employers from contravening provisions of the National Employment Standards. Although the PASOC alleges that the respondent here contravened s 62 of the FW Act, it more likely is intended to be put that the respondent engaged in contraventions of the standard for which that section provides; and, thereby, contravened s 44. In respect of those contraventions, the PASOC alleges (or should be presumed to allege) that the respondent is to be understood as having committed what s 557A of the FW Act describes as "serious contravention[s]" of a civil remedy provision (namely, s 44). To make good on that contention, the PASOC pleads as follows, namely:
Further:
(a) the Applicant and Group Members performed the [relevant overtime] because of the existence of the Budget System; and
(b) the Budget System was expressly authorised by the Respondent and so, by FW Act s.557B, the Respondent is taken to have knowingly contravened s.62.
In the premises, by operation of FW Act s.557A(1) [as it stood during the Relevant Period], the Respondent's contraventions of FW Act s.62 were serious contraventions, within the meaning of the FW Act.
To summarise, then, the PASOC alleges that the respondent should be taken to have knowingly contravened a civil remedy provision because it had in place a system, the existence of which it "expressly authorised". Thus, again by way of summary, the PASOC alleges variously that the respondent "required" and "expressly authorised" certain things.
Those allegations are inherently conclusory. In order that the respondent - a corporation that, for present purposes, can only have acted through the agency of its human officers - might be said to have "required" or "expressly authorised" something (or, indeed, engaged in any other conduct), it will be necessary to prove either that:
that conduct was engaged in by somebody with the respondent's imprimatur; or
the requirement or authority was implicit by reason of other facts that, as yet, are unidentified.
The respondent complains that the PASOC fails, relevantly in each instance, to identify the person or people that did the things of relevance in those regards (that is to say, engaged in conduct on its behalf); or, otherwise, to identify any constituent facts from which the requirement or authority might properly be implied.
There is something in that.
The respondent is entitled to know how the applicant intends to attribute to it each of the relevant instances of conduct that collectively constitute the causes of action that he hopes to press: Monash Health v Singh (2023) 327 IR 196, 223 [116] (Katzmann, Snaden and Raper JJ). At least should that be so given the nature of the allegations that are to be ventilated in this matter: Gunawardena v Boeing Aerostructures Australia Pty Ltd (Strike-out Application) [2024] FCA 1206, [18] (Wheelahan J).
By the oral submissions made on his behalf at the hearing of the interlocutory application, the applicant contended that the court should be slower to require that he afford that level of precision in a matter like this one, in which his costs of doing so are likely not to be recoverable (because of the operation of s 570 of the FW Act). Respectfully, I do not consider that submission to be persuasive; but even assuming that there is something to it, I do not consider that it should inoculate the applicant in the way for which he agitates.
In its present form, the PASOC fails to articulate with appropriate precision the causes of action that the applicant hopes to advance, both insofar as concerns the alleged contraventions of ss 45 and 50 of the FW Act (which concern alleged contraventions of the Award and the 2014 EA), and the alleged contraventions of s 44 (or s 62(1)). In so failing, it leaves the respondent unable to know with the detail to which it is entitled how the allegations that are pressed against it are said to be maintainable. It is, in that respect, embarrassing; and leave to file the PASOC (though perhaps not the PAOA) should be declined accordingly.
There is one final issue that I should address. It pertains to the "relation back" order for which the applicant moves. I should be careful to identify precisely what is sought. By the PAOA and the PASOC, the applicant hopes to press a new claim: namely, the claim made in reliance upon s 62(1) (or s 44) of the FW Act. Insofar as that claim pertains to Above Threshold Managers, he says, it is allied to the underpayment claims to which the existing claim and pleading gives (or is intended to give) voice; and, in that sense, he maintains that it would be an appropriate exercise of the court's discretion to treat it (as it pertains vis-à-vis those managers) as though it relates back to the point at which the proceeding was commenced. Insofar as concerns what are proposed to be new members of the class - namely, the Below Threshold Managers - no relation back order is sought, neither in respect of the various underpayment claims nor the claim that is to be advanced under s 62(1) (or s 44) of the FW Act.
Given that I am not inclined to grant the applicant the leave to amend that he seeks, the "relation back" issue does not strictly arise. Nonetheless (and in deference to the submissions that the parties made about it), I should wish to address it, although not at anything more than a headline level.
Had I been inclined to grant the applicant leave to amend, I would also have been inclined to treat the relevant amendments - that is, the claims made in respect of Above Threshold Managers - as though effective from 18 April 2023. The claims that the existing application and pleading contemplate in respect of Above Threshold Managers have always focused (whether effectively or otherwise) upon amounts that they are said to have been underpaid relative to the work that they performed. So, too, do the claims that the PAOA and the PASOC seek to advance in respect of them. It is the case that the applicant proposes to agitate new claims not previously articulated, in respect of a new class whose composition is different; but both are sufficiently related to what is already in play that an exercise of the court's discretion to relate claims back to the commencement of the proceeding would be warranted. Relating, as it does, to those who are already (or were intended already to be) members of the group, the usual course would be for the amendment to relate back to the commencement of the proceeding. Indeed, it may be that that would be so even without relief granted pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth): see, generally, the observations recorded in Impiombato v BHP Group Ltd (No 5) [2024] FCA 591, [95]-[111] (Murphy J).
As it is, I needn't say anything further on that front. The interlocutory application dated 3 July 2024 should and will be dismissed. There is no need - at least at this stage - to make any order regarding the employment record case that the applicant intends to abandon.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.