Petersen v Workpac Pty Ltd

INTRODUCTION 1 By interlocutory applications in the following two related class actions, the applicants seek Court approval under s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (FCA) to discontinue the representative proceedings they bring against the respondent, WorkPac Pty Ltd: (a) Mr Matthew Petersen, the applicant in Petersen v Workpac (VID 89 of 2019), brings a class action against WorkPac (Petersen Proceeding) on his own behalf and on behalf of all persons who: (i) were employed on one or more occasions by WorkPac pursuant to a "Notice of Offer of Casual Employment" or similarly titled document issued by WorkPac; (ii) were in each of those employments, given an "Assignment" (as defined) pursuant to which they were directed to work at a black coal mine; (iii) worked on the Assignment substantially in accordance with their roster for a period of at least three months; and (iv) had ended an Assignment in the period 5 February 2013 to 4 February 2019 (Petersen Relevant Period) or were still working on an Assignment as at 4 February 2019, (Petersen group members); and (b) Mr Ben Renyard, the applicant in Renyard v Workpac (VID 897 of 2019), brings a class action against WorkPac (Renyard Proceeding) on his own behalf and on behalf of all persons who met very similar criteria to the Petersen group members, with the following small amendments and additional requirements. The Renyard class members: (i) were, in respect of each occasion of employment, given "one or more Assignments"; (ii) worked on the Assignment(s) for a period of at least three months, in accordance with a roster or rosters which provided for full-time employment, provided for a pattern of regular and certain hours and days of work, and were drawn up and promulgated by the mine operator; (iii) worked on the Assignment(s) in a crew or crews as directed by the mine operator; (iv) had ended the Assignment(s) in the period from 5 February 2013 to 30 June 2020) (Reynard Relevant Period) or were still working on an Assignment as at 30 June 2020; and (v) were, as at 30 June 2020, financial members of the Construction Forestry Maritime Mining and Energy Union (CFMMEU), or were financial members of the CFMMEU when their last Assignment with WorkPac ended in the Reynard Relevant Period, (Reynard group members). 2 The group members in the Renyard Proceeding are essentially a subset of the group members in the Petersen Proceeding. Broadly, both proceedings allege that the applicant and group members, although treated as casual employees were, in fact, not casuals, and they were entitled to but not paid the employment benefits provided for non-casual employees under the applicable enterprise agreements, being the WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (2007 Agreement) and the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 (2012 Agreement) in the Petersen Proceeding; and the 2007 Agreement, the 2012 Agreement and the WorkPac Coal Mining Agreement 2019 (2019 Agreement) in the Renyard Proceeding. 3 These reasons should be read in conjunction with my recent reasons in the application for approval to discontinue another representative proceeding, Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435 (Turner v TESA). As in that case, the present applications for approval to discontinue are advanced on the basis that the cumulative effect of: (a) the insertion of s 15A into the Fair Work Act 2009 (Cth) (FWA) by the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 (Cth) (the FW Amendment Act) on 26 March 2021, which provided a definition (with retrospective effect) of "casual employee" for the purposes of the FWA; and (b) the High Court decision in WorkPac Pty Ltd v Rossato [2021] HCA 2; 392 ALR 39 (Rossato HCA) handed down on 4 August 2021, means that the proceedings no longer have reasonable prospects of success. 4 The application in the Petersen Proceeding is supported by affidavits of Mr Rory Markham, a principal of Adero Law, the solicitors for Mr Petersen, being: (a) an affidavit sworn on 16 November 2021, which annexes a confidential Counsels' Opinion of Dr Kristine Hanscombe QC and Mr Joel Fetter who opine that discontinuance is not unfair, unreasonable or adverse to the interests of group members; (b) an affidavit affirmed on 30 November 2021, in which he deposes that notice to group members of the application was not, in fact, provided on the date previously deposed but was provided on the date of the affidavit; and (c) an affidavit affirmed on 2 February 2022, in which he deposes as to the responses by group members to the notice sent to them. 5 The application in the Renyard Proceeding is supported by affidavits of Mr Andrew Rich, a legal practitioner and the employee of Slater and Gordon, the solicitors for Mr Renyard, being: (a) an affidavit affirmed on 23 November 2021, in which he sets out his view as to the proceeding's prospects of success; and (b) an affidavit affirmed on 3 February 2022, in which he deposes as to the notice of the proposed discontinuance sent to group members, and the absence of any objection by group members to the proposed discontinuance. 6 For the reasons I explain, I am satisfied that it is appropriate to approve discontinuance of the two proceedings.

THE RELEVANT PRINCIPLES 7 I set out the relevant principles in Turner v TESA, including that: (a) the applicable test for approval to discontinue a representative proceeding in the circumstances of the present applications is whether the Court is satisfied that discontinuance would not be unfair or unreasonable or adverse to the interests of group members (at [6]-[10]); (b) the limitation period applicable to a group member's claim in the proceeding (which limitation period is suspended by operation of s 33ZE(1) of the FCA) does not begin to run again from the date of discontinuance, as discontinuance does not constitute a "determination" for the purpose of s 33ZE(2). However, in my view it is appropriate to order, pursuant to the power under ss 33V and 33ZF, that the limitation period for a group member's claim begins to run again from 60 days after the date on which a notice of discontinuance is filed (at [11]-[31]); and (c) in circumstances where group members are aware of the proceeding I do not consider it appropriate to approve discontinuance without giving notice to group members who may be affected by that decision (at [32]-[35]). I have applied those principles in these reasons.

The Skene litigation 8 In Turner v TESA (at [39]-[43]) I summarised the factual background and the result in the Skene v WorkPac litigation. The applicant in that case, Mr Paul Skene, was employed by Workpac, a labour hire company, and hired out to undertake assignments at a coal mine, under contractual arrangements which described him as a casual employee, similarly to the claimants in the present cases. Having regard to the reality of the circumstances under which he worked, including his roster, Mr Skene alleged that he was not, at law, a casual employee. On 16 August 2018, on appeal from the Federal Circuit Court, the Full Federal Court held that Mr Skene was not a casual employee for the purposes of the FWA nor the applicable enterprise agreement and therefore was entitled to benefits associated with non-casual employment under the enterprise agreement and under the FWA (Skene FCA).

Commencement of the class actions 9 On 7 February 2019 Mr Petersen commenced the Petersen Proceeding, funded by a commercial litigation funder Augusta Ventures Ltd (Augusta). On 21 August 2019, Mr Renyard, who was a group member in the Petersen Proceeding, commenced the Renyard Proceeding seeking essentially the same relief, but on behalf of the Renyard group members described above. 10 The applicants in the two proceedings and approximately 10,000 group members (the claimants) were employed by WorkPac to perform one or more assignments at a black coal mine, which assignments were at least three months long, and which ended in the Relevant Period in each proceeding. One of the group members in the Petersen Proceeding was Mr Robert Rossato, the respondent in the Rossato litigation which I later turn to explain. 11 Upon hiring, the claimants, including Mr Rossato, signed a document entitled "General Conditions" which applied to all "assignments" with WorkPac and provided for employment on an assignment-by-assignment basis. The General Conditions provided that, during each assignment, the employee was to work at least 35 hours per week according to a roster, to be advised; the length of any assignment could be varied by WorkPac; and assignments could be terminated upon one hour's notice. Each individual assignment was agreed by a "Notice of Casual Employment" (NOCE) proffered by WorkPac and signed by the employee. The NOCE fixed the assignment length, generally at six months, although at least one NOCE offered by WorkPac to a group member was "open ended": that is, without an end date. Whatever the length of the relevant assignment, all NOCEs described the employments as "casual". The claimants were paid a wage included a casual loading pursuant to clauses of the 2012 Agreement, which clauses were incorporated into the NOCEs. 12 In each assignment, the claimants worked according to a regular roster. The assignments generally carried on after the nominated date in each NOCE, and some group members worked for WorkPac for several years under multiple consecutive assignments. 13 Clause 19 of the 2012 Agreement denied paid annual leave to "Casual Field Team Members", but did not define this category of employee. 14 When the claimants ended their employments with WorkPac, they were not paid any moneys on account of annual leave. 15 The statement of claim in the Petersen Proceeding alleges that Mr Petersen and group members were not "casual employees" within the meaning of the FWA and its predecessor, nor were they casuals within the meaning of the 2012 Agreement or its predecessor. Accordingly, and in reliance on Skene FCA, the statement of claim alleges that when the contract of employment of the applicant and group members ended during the Relevant Period, WorkPac was bound to pay them the value of the annual leave that accrued over their employment. The claims in the Renyard Proceeding are similar.

The Rossato litigation 16 In Turner v TESA (at [45]-[48]) I summarised the factual background and the result in the WorkPac Pty Ltd v Rossato litigation, culminating in Rossato HCA on 4 August 2021, in which the High Court rejected the reasoning of the Full Court in the Rossato FCA and in Skene FCA, upholding Workpac's appeal. Mr Rossato was employed by Workpac and hired out to undertake assignments in the black coal mining industry, under contractual arrangements which described him as a casual employee; which arrangements were the same as the claimants in the present proceedings. The High Court held that that Mr Rossato, was a casual employee for the purposes of the FWA and the relevant enterprise agreement, and was therefore not entitled to the benefits associated with non-casual employment under the FWA or that agreement.

The retrospective amendments to the FWA 17 In Turner v TESA (at [49]-[53]) I summarised the amendments to the FWA through the FW Amendment Act, which came into operation on 26 March 2021. In short, the amendments retrospectively inserted a restrictive definition of "casual employee" into the FWA together with a mechanism for reducing or "off-setting" the amount payable for the relevant entitlements to an employee who is found to not be a casual employee, against any amount previously paid to that employee by way of casual loading.

The withdrawal of funding and instructions to discontinue the proceedings 18 Mr Markham and Mr Rich respectively depose that, following the result in Rossato HCA, Augusta and the CFMMEU informed them that they no longer wished to fund the respective proceeding, and that they were each instructed by the applicant to seek leave to discontinue the proceeding. I accept their evidence.

Notice to and objections by group members 19 In his first affidavit Mr Markham deposed that immediately upon sealing of the discontinuance application his office intended to send an email to the 1,100 registered group members in the Petersen Proceeding notifying them of the proposed discontinuance and attaching the interlocutory application and a copy of the affidavit. He said that his office also intended to place those documents on Adero Law's Facebook page and website and that he intended to advise his "usual media contacts" of the proposed discontinuance. In his second affidavit, Mr Markham deposed that notice to group members of the application was not, in fact, provided "immediately upon sealing of the discontinuance application" but had been provided on 30 November 2021. 20 In his first affidavit Mr Rich deposed that on 24 August 2021 the CFMMEU had emailed a letter to 724 group members who had registered their interest in the Renyard Proceeding or had told the union that they had been employed by WorkPac during the Renyard Relevant Period. He also deposed that he was informed by the relevant officer of the CFMMEU that it had not received any objection from members to its proposal to discontinue funding of the proceeding and no member had communicated a desire to maintain the proceeding without the support of the CFMMEU. 21 I considered the proposed arrangements for notifying group members in both proceedings to be inadequate. In the Petersen Proceeding Mr Markham only proposed to notify registered group members, and the documents to be sent to the group members did not inform them of their right to object to or oppose the application to discontinue the proceeding, or to be substituted as the representative applicant. In the Renyard Proceeding the letter from the CFMMEU was only sent to registered group members or those who had contacted the union, and it did not inform group members of their right to object to or oppose the application to discontinue the proceeding, or to be substituted as the representative applicant. 22 On 22 December 2021 I made orders in both proceedings requiring that WorkPac send a Court-approved notice (Notice) by 24 December 2021 to all persons who, according to WorkPac's records, were employed on a casual basis under the 2007 Agreement, the 2012 Agreement or the 2019 Agreement during the applicable Relevant Period in each proceeding, doing so by email to the person's last known email address recorded in its files and where Workpac did not hold an email address via post to the person's last known postal address. 23 The Notice informed group members of their right, by 31 January 2022, to object to or oppose Court approval of the proposed discontinuance of each proceeding and of their right to seek to be substituted as the representative applicant in the proceeding. The orders provided that if no group member so notified Adero Law or Slater and Gordon, the discontinuance applications would be decided on the papers. The Notice provided group members the following options: (1) Do nothing, in which case the matter is likely to be discontinued. In this event, you will still be able to bring any individual claim connected to your employment with WorkPac, if you wish (although please note that time limits are likely to apply to the bringing of any claim, so you should seek legal advice as soon as possible); (2) Propose yourself or another Group Member to be substituted as lead applicant in either of the two proceedings, and thereby take over the conduct of that proceeding. The proposed new lead applicant must be willing to conduct the case on his or her own behalf and on behalf of Group Members, to appoint lawyers to act in the case, and to meet the legal costs; or (3) Object to or oppose the proposed discontinuance of either or both of the Petersen Proceedings or the Renyard Proceedings. If you wish to take up option (2) or (3) above, you must inform Adero Law (regarding the Petersen Proceedings) or, if you are (or were) a CFMMEU member, Slater and Gordon Lawyers (regarding the Renyard Proceedings) via email by close of business on 31 January 2022. Any email to Adero Law or Slater and Gordon Lawyers in this regard may need to be shown to the Court and to WorkPac. 24 In his third affidavit Mr Markham deposes that on 23 December 2021 Adero Law was informed by WorkPac that it had sent the Notice to the group members in both proceedings in accordance with the orders of 22 December 2021. 25 The evidence shows that the responses by the group members in the two proceedings were different. In the Renyard Proceeding Mr Rich deposes that upon group members being sent the Notice, no group member informed Slater and Gordon that he or she objected to or opposed the application nor that they were willing to be substituted as the representative applicant. 26 In the Petersen Proceeding Mr Markham deposes that over the period from 26 December 2021 to 16 January 2022 his office received 43 phone calls and 56 emails from group members in which they said they were unsure of the contents of the Notice; sought to query the reason for discontinuance; and/or sought clarification on how to object to the discontinuance application in an appropriate form, and to better understand the risks associated with doing so. He says that those who contacted his office by telephone had their queries answered and all of them indicated that they did not wish to proceed with making an objection. But he also deposes that a subset of the group members (six in total) who contacted Adero Law expressly sought to object to the proposed discontinuance, although it appeared to him "that they did not comprehensively understand the nature of the risks associated or for that matter, the form in which the objection was to be raised pursuant to the terms of the Notice". 27 Mr Markham states that on 27 January 2022 he caused an email to be sent to all group members who had contacted Adero Law by phone and email, including those who had expressly sought to object to the proposed discontinuance, "requesting those who wished to raise a formal objection in appropriate form with full knowledge of the associated risks to contact [Mr Markham] as a matter of urgency". He also caused a member of his office to telephone all such persons to "provide any clarifications they may require [in] advancing an objection". 28 The email to group members dated 27 January 2022 relevantly said: …On 24 December 2021, a notice approved by the Federal Court of Australia (Notice) was sent to you in relation to the matter. We understand that you have replied to that correspondence, and we are in receipt of your reply. In light of the fact that the Notice provided a specific manner of raising an objection, we are unable to conclusively ascertain whether it was your intention to simply express a degree of frustration at the discontinuance or whether, if you wish to raise a valid objection, you require assistance to do so. We are happy to assist you to raise a valid objection in appropriate form. This will involve, as stated in the Notice: 1) Identifying a lead applicant 2) Understanding the low prospects of success associated in continuing the claim against the Respondent 3) Funding the litigation against the Respondent Please call Adero Law at [telephone number] immediately should you wish to progress your objection. If we do not hear from you till close of business 31 January 2021[sic], we will assume that you do not wish to continue with your objection to the discontinuance of the above claim any further. (Emphasis in original.) 29 Mr Markham further deposes that, although Adero Law received no replies to the email of 27 January 2022, on 2 February 2022 he attempted to telephone each of the six group members who had expressly sought to object. He does not state whether he was able to speak to any of those group members, and I infer that he did not. Even so, Mr Markham states that he is "not aware" of any group member who "now wishes to advance an objection", and that "no group member…has informed Adero Law of any potential objection to the [a]pplication." 30 Unfortunately some parts of the email sent by Adero Law to group members on 27 January 2022 were inaccurate, and some aspects of Mr Markham's evidence are imprecise. The inaccuracy can be seen in the fact that the Notice did not require that for a group member to oppose or object to Court approval for discontinuance, the group member must identify a person who is willing to be substituted as the representative applicant and be willing to fund the litigation. The only requirement for a group member to validly notify an objection to the proposed discontinuance was to send an email stating that fact to Adero Law or Slater and Gordon. Further, while it can be accepted that no group member responded to the email of 27 January 2022, Mr Markham left it unclear whether or not any of the six objecting group members continued to oppose discontinuance. 31 I am satisfied that there are no group members in the Renyard Proceeding who object to the proposed discontinuance, and/or who are willing to be substituted as the representative applicant. In relation to the Petersen Proceeding I will proceed on the assumption that some group members continue to object to approval of the discontinuance application. There is, though, no evidence that any group members sought to be substituted as the representative applicant.

DETERMINATION 32 As I said in Turner v TESA at [12]-[31], by operation of s 33ZE(2) of the FCA any limitation period applicable to a group member's claim does not begin to run again from the date of discontinuance, as discontinuance does not constitute a "determination" under s 33ZE(2). I concluded (at [24]) that in the circumstances of that case it was appropriate to order, pursuant to the power under ss 33V and 33ZF, that any limitation period applicable to a group member's claim in the proceeding begins to run again from 60 days after the date on which a notice of discontinuance is filed. I take the same view in the present proceedings. 33 The circumstances in the present proceedings are the same as in Turner v TESA except that Workpac did not seek such an order. In my view it is nevertheless appropriate to make such an order. An order under s 33ZF can be made on the Court's own motion and in approving a discontinuance application under s 33V(1) the Court has a supervisory and protective role in relation to the interests of absent group members. In my view such an order is appropriate as it will balance the interests of group members and the respondents. It recognises the importance to the respondents of ensuring that they are not forever at risk of being sued (an outcome that Derrington J rightly recognised as "extraordinarily unjust" in Francis (Trustee) v Oculus Accounting Pty Ltd (No 2) [2021] FCA 1275 at [33]), and it protects group members' interests by giving them 60 days to seek advice and commence their own proceeding if they wish, before the limitation period again begins to run. 34 Having regard to the retrospective amendments to the FWA and the decision in Rossato HCA it is appropriate to approve discontinuance of the two proceedings. I am satisfied that doing so is not unfair, unreasonable or adverse to group members' interests. 35 First, I am satisfied that both proceedings have little or no prospect of success. The confidential Counsels' Opinion of Dr Hanscombe and Mr Fetter is significant to my view in this regard. As Counsels' Opinion is confidential it must suffice to note that it analyses the likelihood of the applicant and group members being able to establish liability and an entitlement to relief against the respondents. It is thorough and cogent, and it supports approval to discontinue the proceeding. 36 The analysis in Turner v TESA at [63]-[66] is applicable to the present case; even more so because the decision in Rossato HCA was made in relation to an employee with the same contractual arrangements as the applicants and group members in these two proceedings. 37 Whether the applicants and group members in the two proceedings accrued annual leave entitlements during their employment by WorkPac turns on whether they were casual employees within the meaning of s 15A of the FWA. That provision, which has retrospective effect, essentially requires the Court to consider whether, in each offer of employment (that is, in each NOCE given at the commencement of the employment) there was no firm advance commitment by WorkPac to continuing and indefinite work according to an agreed pattern of work. On the reasoning in Rossato HCA, the General Conditions and the NOCEs agreed to by the applicants and group members with WorkPac did not contain a firm advance contractual commitment to ongoing or indefinite work. When one also considers the factors in s 15A(2), the description in the NOCEs of the assignments as being "casual" and the fact that claimants were paid a casual loading pursuant to clauses of the 2012 Agreement which were incorporated into the NOCEs, it is overwhelmingly likely that the applicants and group members will be found to be casual employees. In Rossato HCA, the High Court decided that if no such commitment is made at the start of the employment, the parties' conduct throughout the period of employment, in the following months or years, is not relevant to the question of whether or not the employees were "casual" under the FWA. The High Court held that Mr Rossato was a casual employee for the purposes of the 2012 Agreement and there is no basis for distinguishing that finding in relation to Mr Petersen, Mr Renyard or the group members. 38 On that basis it is highly unlikely that applicants and group members will be able to establish that they accrued any annual leave entitlements under the 2007 Agreement, 2012 Agreement or 2019 Agreement. 39 Secondly, Augusta and the CFMMEU have withdrawn their funding of the respective proceedings, and the low prospects of success mean that it is unlikely that any other person or organisation will agree to fund the cases. I infer that Adero Law and Slater and Gordon are not willing to continue to bring the cases on a no win no fee basis, and given the prospects of success it is unlikely that another legal firm would do so. 40 Thirdly, the practical effect of the proposed orders is that group members will be returned to the legal position they were in before the proceeding was commenced, and their rights against WorkPac will not be affected. The orders include a declaration that the approval of the discontinuance does not affect the rights of the applicant or group members to pursue the claims in these proceedings in another proceeding. 41 Fourthly, group members have been given notice of the proposed discontinuance and of their right to object to the discontinuance and/or to seek substitution as the representative applicant. No group member in the Renyard Proceeding objected to discontinuance and no group member in either proceeding indicated a preparedness to be substituted as the representative applicants. Nor did any group member propose any basis upon which the proceedings could go forward without funding. 42 Because of the imprecision in Mr Markham's evidence I proceed on the assumption that some group members in the Petersen Proceeding object to discontinuance. Any such objection can only be on the basis that the group member considers the proceeding has some merit, and that discontinuance will mean that he or she will have lost the vehicle through which their claim might be vindicated without incurring any risk or legal costs. But in the circumstances of the present proceedings it is appropriate to approve discontinuance because of the matters outlined above. It is significant that both funders no longer wish to fund the proceedings, the applicant's lawyers in both proceedings have not offered to conduct the case on a no-win no-fee basis, no group member has offered to be substituted as the representative applicant in the proceedings, and if any group member wishes to bring their own proceeding the practical effect of the orders is that they will be returned to the position they were in immediately before the cases were commenced. The group member will have had the benefit of the suspension of the applicable limitation period from the commencement of the proceedings, and the limitation period will not begin to run again until 60 days after the notices of discontinuance are filed. Should they wish to do so, group members will have ample time to obtain legal advice and commence their own case in relation to the claims made in the proceedings. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy.