Legislative amendments render casual workers’ class actions “futile”

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These three class actions relate to separate proceedings but the decisions are dealt with together on the basis that they share significant commonality, including the following:

• The subject matter concerned the payment entitlements of ‘casual’ workers.
• The applicant in each proceeding was represented by the same firm, being Adero Law.
• The applicant made an application for discontinuance pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) and the application was before Murphy J for determination.

The central allegation in the cases was that the applicants and class members alleged they were treated as casuals but were entitled to the employment benefits provided for non-casual employees under the Fair Work Act 2009 (Cth) (FWA) and the relevant Awards.

Subsequent to the commencement of the proceedings:

• legislative amendment inserted s 15A into the FWA by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) which provided a definition (with retrospective effect) of ‘casual employee’ for the purposes of the FWA; and
• the High Court handed down judgment in WorkPac Pty Ltd v Rossato (2021) 392 ALR 39; [2021] HCA 23.

Those developments meant that the proceedings no longer enjoyed any reasonable prospect of success.

His Honour considered that the appropriate test in the circumstances was whether “discontinuance would be unfair or unreasonable or adverse to the interests of group members”.

His Honour noted there was uncertainty as to whether the discontinuance of a representative proceeding constitutes a ‘determination’ of the proceeding for the purpose of s 33ZE(2), such that the limitation period applicable to a class member’s claim commences to run again. His Honour preferred the construction that it was not a ‘determination’ pursuant to that provision, and therefore that discontinuance, in and of itself, would not cause any limitation period to recommence. For that to occur, a further order was necessary under ss 33V(1) and 33ZF that the limitation periods that apply to the claims of the class members to which the proceeding relates begin to run again.

Ultimately, his Honour made orders in the same form in each proceeding, approving the discontinuance, re-enlivening the limitation period from 60 days after the date the notice of discontinuance was filed, vacating all orders and making no orders to costs, and noted that the discontinuance did not affect any rights of the applicant or class members to pursue the claims that are the subject of the proceedings in other proceedings.

Those orders were made for the following reasons:

• First, the proceedings had very limited prospects of success.
• Second, notice had been given and no class member had sought to be substituted as lead applicant.
• Third, the previous funding arrangement had been terminated (the funder was previously Augusta Ventures Ltd in all three cases), and it was unlikely another funder would be forthcoming.
• Fourth, the class members will be returned to the position they were in before the proceedings were commenced.
• Fifth, class members stood to suffer no material disadvantage from the discontinuance.

Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; Turner v Ready Workforce (A division of Chandler Macleod) Pty Ltd [2022] FCA 467; Petersen v Workpac Pty Ltd [2022] FCA 476

Federal Court of Australia, Murphy J, 26 & 29 & April 2022,
2 May 2022

Applicants’ Solicitors (Turner proceedings): Adero Law
Applicants’ Solicitors (Petersen proceeding): Adero Law, Slater & Gordon
Respondents’ Solicitors (Turner proceedings): Herbert Smith Freehills, King & Wood Mallesons, Colin Biggers & Paisley
Respondents’ Solicitors (Petersen proceedings): Ashurst
Applicants’ Funder: N/A

Austlii Link: Available here

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