Federal Court of Australia

Shorey v One Key Resources Pty Ltd [2024] FCA 749

ORDERS

THE COURT ORDERS THAT:

1.    Order 1 made on 3 October 2023 be varied so that paragraphs 7, and 59 to 68 of the Affidavit of Rory Michael Markham affirmed 23 August 2023 are no longer to be treated as confidential, and may therefore be accessed by the public. For the avoidance of doubt, exhibit RMM-5 to that affidavit shall continue to be treated as confidential.

2.    Discontinuance of the proceeding be approved pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA). The Applicant has leave to discontinue the proceeding by filing a notice of discontinuance, forthwith.

3.    Pursuant to ss 33V and 33ZF of the FCA any limitation period that applies to the claim of the Applicant and any group member, to which the proceeding relates, shall begin to run again from a date 60 days after filing of a notice of discontinuance.

4.    There be no order as to costs of the interlocutory application for approval of the discontinuance.

5.    There be no order as to costs in the proceeding.

6.    Any existing orders as to costs are vacated.

THE COURT DECLARES THAT:

7.    Order 2 does not affect any rights of the Applicant or any group member in the proceeding to pursue the claims that are the subject of this proceeding in another proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J

1    By an interlocutory application filed on 23 August 2023 the applicant, Josephy Shorey, seeks court approval under s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (FCA) and 26.12(4) of the Federal Court Rules 2011 (Cth) (the Rules) to discontinue the class action he has brought against the respondents One Key Resources Pty Ltd (One Key Resources) and Key Holdings Pty Ltd (One Key Holdings). He brought the proceeding on his own behalf and on behalf of all persons who at any time in the period between 6 November 2015 and 2 October 2018 (the Relevant Period):

(a)    were employed by One Key Workforce Pty Ltd (in liquidation) (One Key Workforce); and

(b)    were persons to whom the Black Coal Mining Industry Award 2010 (the Award) applied and who were Schedule A employees within the meaning of the Award, who worked at a black coal mine within the meaning of the Award; and

(c)    were not paid the rates applicable or afforded the terms and conditions of employment prescribed by the Award; and

(d)    suffered loss or damage as a result,

(group members).

2    Broadly, the proceeding alleges that the applicant and group members (the claimants), although treated as casual employees were in fact not casuals, and they were entitled to be but were not paid the employment benefits provided for non-casual employees under the National Employment Standards (NES) contained in the Fair Work Act 2009 (Cth) (FW Act), and under the Award. It seeks declarations, compensation and penalties against One Key Resources and One Key Holdings under s 545 of the FW Act, based in allegations that One Key Resources and One Key Holdings were “involved” in contraventions of the FW Act by One Key Workforce.

3    For the reasons I explain, I am satisfied that it is appropriate to approve the discontinuance of the proceeding.

The evidence

4    The applicant relies on:

(a)    two affidavits of Rory Markham, a principal of Adero Law, the solicitors for the applicant, sworn on 23 August 2023 and 29 April 2024 respectively (the first and second Markham affidavits);

(b)    an affidavit of Anvesh Bulusu, a solicitor employed by Adero Law, affirmed 3 May 2023;

(c)    an affidavit of Patrick Lawler, a solicitor employed by Ashurst Australia, affirmed 2 November 2023;

(d)    an affidavit of Ashley Borg, a solicitor employed by Adero Law, dated 8 December 2023.

5    On 3 October 2023 I made interim confidentiality orders in relation to certain paragraphs of the first Markham affidavit. While preparing these reasons I came to the conclusion that there is insufficient information outside that contained in the confidential part of that affidavit to properly explain my reasons for approving the discontinuance. I have varied those confidentiality orders.

The relevant principles

6    I set out the relevant principles for a discontinuance application of this type in Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; 314 IR 214 (Turner v TESA) at [6]-[31], which I recently summarised in Hill v Skilled Workforce Solutions (NSW) Pty Ltd [2024] FCA 603 at [5]-[7] as follows:

[5]    …

(a)    the Court’s task in considering whether to approve a discontinuance is different to its task in approving a settlement under section 33V of the Act. The proposed discontinuance is a unilateral act of an applicant, which (subject to cost consequences) puts the applicant in the same position as if the proceeding had not been commenced, and it has different consequences to a settlement. As there is no agreement by which the proceeding is compromised, there can be no merger of the applicant’s rights in the proceeding. As there is no judicial determination, there can be no res judicata or issue estoppel;

(b)    in the circumstances of the present application, where the practical effect of discontinuance will be to return group members to the position they are in before the commencement of the class action, the applicable test for approval to discontinue a representative proceeding is whether the Court is satisfied that discontinuance would not be unfair or unreasonable or adverse to the interests of group members: see Turner v TESA at [6]-[10]; Rota v Fire Rescue Victoria [2024] FCA 424 (Anderson J); and

(c)     in circumstances where group members are aware of the proceeding it would be inappropriate to approve discontinuance without giving notice to group members who may be affected by that decision: Turner v TESA at [32]-[35]. Here, the group members were given notice of the application for discontinuance.

[6]     In relation to the limitation periods applicable to group members’ claims in the proceeding (which are suspended by operation of s 33ZE(1) of the FCA), they do not commence to run again from the date of discontinuance, as discontinuance does not constitute a “determination” for the purpose of s 33ZE(2): c.f. Rota. In the circumstances of this case it is appropriate to make an order pursuant to ss 33V and 33ZF that the limitation periods for group members’ claims commence to run again from 60 days after the date on which a notice of discontinuance is filed.

[7]     Section 33V(1) requires that the Court approve the discontinuance of class proceedings, which implicitly imposes a condition that the discontinuance be just. Section 33ZF empowers the Court to make any order the Court thinks appropriate or necessary to ensure justice is done in the proceeding. And the Court may order a discontinuance subject to a term or condition: Note 2 of r 26.12 of the Federal Court Rules 2011 (Cth); see e.g. O’Neill v Mann [2000] FCA 1680 at [11] (Finn J). An order that provides that the limitation period commences to run again from 60 days after discontinuance, is “just” because it provides group members an opportunity to protect their rights by bringing their own proceedings, and because it protects the respondent from exposure to the risk of group members’ claims in perpetuity: see Turner v TESA at [11]-[31].

7    In the circumstances of this case too it is appropriate to order that any limitation periods that apply to the claims of the applicant and any group member, to which the proceeding relates, shall begin to run again from a date 60 days after filing of a notice of discontinuance. Otherwise the respondents will, or at least may, be exposed to group members’ claims in perpetuity. The suspension of the limitation period under s 33ZE(1) will continue for a further 60 days, so as to allow group members sufficient time to obtain legal advice and commence their own proceeding should they wish to do so, and then any applicable limitation periods will commence to run again.

Background

The parties

8    The applicant was an employee of One Key Workforce, a company formerly known as RECS (Qld) Pty Ltd, which is not a respondent to the proceeding. One Key Workforce was part of a group of companies (collectively, the One Key Group), two of which companies are the respondents to the proceeding. It was placed into liquidation on 28 September 2018.

9    The first respondent, One Key Resources, is a company holding contracts with mine operators for the on-hire of casual employees in black coal mines in New South Wales.

10    The second respondent, One Key Holdings, is a company created during the acquisition of the One Key Group by its ultimate owner, Fircroft Engineering Services Holdings Limited. At least until 2021, One Key Holdings held 100% of the shares in both One Key Workforce and One Key Resources.

Mr Shorey’s employment

11    It is alleged that:

(a)    from June 2016 to June 2019, Mr Shorey was employed by One Key Workforce and was contracted out to One Key Resources; who in turn supplied him to unrelated companies in black coal mines to work in the black coal mining industry as an underground operator;

(b)    he was employed by One Key Workforce under an employment contract which identified his position and the terms and conditions of his employment, including that he would be contracted to “host clients” under a document titled "Details of Assignment - Casual", which expressly provided that his employment "will be on a casual basis". The Details of Assignment further provided that either party may terminate the employment relationship at any time, requesting only one hour's notice from Mr Shorey should he wish to terminate his employment;

(c)    Mr Shorey in fact worked a consistent 35-hour roster pattern, provided to him more than a year in advance, as directed by “host clients” of One Key Resources; and

(d)    during his employment with One Key Workforce he was paid the rates of pay and afforded the terms of conditions of a casual employee pursuant to the terms of the RECS (Qld) Pty Ltd Enterprise Agreement 2015 (the RECS Agreement), which applied to One Key Workforce and its employees who would otherwise be covered by the Award, or other relevant awards.

Casual employees under the Award

12    Clause 10.1 of the Award (which would have applied absent the RECS Agreement) provided that:

An employer may employ an employee in any classification included in this award in any of the following types of employment:

(a)    full-time;

(b)     part-time; or

(c)     in the case of classifications in Schedule B-Staff Employees, casual.

13    Clause 10.4(a) of the Award provided that a “casual employee is one engaged and paid as such.”

The approval of the RECS Agreement

14    The procedure undertaken by One Key Workforce was remarkably simple in the way that it sought to avoid the protections against casual employment in the Award. Between March and August 2015 One Key Workforce recruited three persons as employees. In August 2015 there was initiated a process whereby each of these three employees were invited to vote on a proposed enterprise agreement. On 25 August 2015 each of the three employees responded to an email request for a vote and each voted in favour of the proposed enterprise agreement.

15    The proposed enterprise agreement was then submitted to the Fair Work Commission for approval. After inquiries were made by the Commissioner as to, inter alia, whether the proposed enterprise agreement contained terms which were less beneficial than the terms in the relevant awards, the Commissioner granted approval on 30 October 2015.

16    The agreement as approved became known as the RECS Agreement, which operated with effect from 6 November 2015.

The quashing of the RECS Agreement

17    In November 2016, the Construction, Forestry, Mining and Energy Union (CFMEU), applied to this Court for a declaration that the RECS Agreement was void and of no effect, or in the alternative, an order in the nature of certiorari, quashing the approval of the Commission. Amongst other things the CFMEU asserted that the RECS Agreement’s terms were less beneficial than the terms of Award, which did not permit casual employment except in certain positions.

18    On 8 November 2017, the Court held that the FWC erred in approving the RECS Agreement and that the Agreement should be quashed, and a declaration made that it is void and of no effect, describing it as not “susceptible of approval”: see Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266; 270 IR 410 at [7] (Flick J).

19    On 27 November 2017, One Key Workforce appealed that decision. On 21 December 2017, Flick J stayed the operation of the orders regarding validity of the RECS Agreement until the determination of the appeal.

20    On 25 May 2018, the Full Court, although upholding the appeal in part, found that the FWC had fallen into jurisdictional error in finding that the relevant employees had “genuinely agreed” to the RECS Agreement, but granting different relief. On 28 August 2018, the Full Court issued a writ of certiorari to quash the decision of the FWC approving the RECS Agreement: see One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 262 FCR 527 (Bromberg, Katzmann and O’Callaghan JJ).

21    That meant that most former and current full-time employees of One Key Workforce were required to have been employed under the terms of the Award. Shortly following the Full Court’s decision One Key Workforce went into voluntary administration and terminated the employment of most of its workforce.

The law at the time the proceeding was commenced

22    On 16 August 2018, the Full Court handed down judgment in WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536, in which it held that the respondent worker, who was employed by a labour hire company to work as a casual employee in black coal mines but who in fact worked full time on fixed rosters set well in advance, was as a matter of law not a casual employee. It was held that as a full-time employee the employee was entitled to the corresponding benefits under the applicable enterprise agreement and the NES.

23    Mr Shorey commenced this proceeding on 17 April 2020. His case is based in facts which have marked similarities to those in Skene. Both cases concerned a person working pursuant to a contract of employment with terms providing for the employee’s casual employment in black coal mines rather than under the relevant Award or enterprise agreement, and where the employee alleged that the reality was that he worked according to a regular roster provided in advance and was not a casual employee. Here, however, Mr Shorey has the additional benefit of cl 10.1 of the Award which, on its face, precludes his being employed as a casual employee.

24    Shortly after commencement of the proceeding, on 20 May 2020, in WorkPac Pty Ltd v Rossato [2020] FCAFC 84; 278 FCR 179 a differently constituted Full Court upheld the approach in Skene. The Full Court unanimously decided that Mr Rossato, who was employed as a casual employee to work in black coal mines by the same labour hire company as in Skene, was as a matter of law not a casual employee and was entitled to the benefits of the relevant enterprise agreement and the NES as a full-time employee.

25    On 26 November 2020, the HCA granted special leave to WorkPac Pty Ltd to appeal the decision in Rossato. This proceeding was stayed pending the High Court deciding the appeal.

The proceeding

26    The proceeding alleges that Mr Shorey and the group members were employed pursuant to the Award. It alleges that, properly construed, cl 10.1 of the Award requires that only persons in “Classification Schedule B - Staff Employees” can be employed as a “casual” employee, with the effect that a Production and Mining Employee like Mr Shorey could only be employed on a full-time or part-time basis.

27    It alleges that Mr Shorey and the group members were therefore entitled in their employment with One Key Workforce:

(a)    under the Award:

(i)    to be engaged on a permanent basis in accordance with cl 10.1;

(ii)    to personal leave in accordance with cl 13;

(iii)    to severance pay in accordance with cl 14; and

(iv)    to annual leave in accordance with cl 25; and

(b)    under the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act):

(i)    to annual leave in accordance with div 6 of pt 2-2; and

(ii)    to notice of termination in accordance with s 117.

28    Because they were not so paid it is alleged that One Key Workforce contravened:

(a)    s 45 of the FW by failing to act in accordance with the Award; and

(b)    s 44 of the FW Act by failing to pay out annual leave and provide notice in accordance with the NES.

29    One Key Workforce is not a respondent to the Proceeding, but it is alleged that One Key Resources and One Key Holdings were “involved” in its contraventions within the meaning of s 550 of the FW Act and are thereby also liable for those contraventions. The alleged involvement is through matters including that at all material times there was a contract or arrangement between One Key Resources and One Key Workforce pursuant to which One Key Workforce supplied labour to One Key Resources at cost, and One Key Resources provided payroll and human resources support for One Key Workforce. It is also alleged that One Key Holdings contravened s 558B of the FW Act, which makes holding companies liable where a subsidiary contravenes a civil penalty provision of the Act and the holding company or its officer knew or could reasonably be expected to have known that the contravention, or a contravention of similar character, by the subsidiary would occur or was likely to occur.

The reasons given for the proposed discontinuance

30    In his first affidavit, Mr Markham gave a number of reasons as to why it was appropriate to allow the proceeding to be discontinued.

31    First, on 26 March 2021, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (the FW Amendment Act) introduced changes to the FW Act. In short, s 15A retrospectively inserted a restrictive definition of “casual employee” into the Act together with a mechanism in s 545A 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.

32    Second, on 4 August 2021 the High Court handed down judgment in the appeal from the Full Court decision in Rossato: see WorkPac Pty Ltd v Rossato [2021] HCA 23; 271 CLR 456 (Rossato HC). The High Court rejected the reasoning of the Full Court in Skene and Rossato and held that the contract of employment rather than the actual working arrangements reliably indicated the “true character of the employment relationship” (at [62]). The High Court held that Mr Rossato was a casual employee and therefore was not entitled to the benefits of the relevant enterprise agreement and the NES.

33    Third, the proceeding was funded by Woodsford Litigation Funding (the Funder) pursuant to a litigation funding agreement (LFA) between the applicant and the Funder. A precondition of the LFA was that limited funding would be made available pending Adero Law providing the Funder with evidence that One Key Resources had an insurance policy which would cover the value of the claims.

34    The Applicant made an interlocutory application for preliminary discovery from a prospective respondent, One Key Workforce, for management liability insurance policies and any other insurance policy held by or for the benefit of One Key Workforce. In Shorey v One Key Workforce Pty Ltd (in liq) [2020] FCA 1750 (Insurance Policy Decision) at [46]-[50], I held that One Key Resources, not One Key Workforce, was the relevant policyholder in respect of the insurance documents that the applicant sought. I found that One Key Workforce was not a subsidiary of One Key Resources, and that the insurance policies did not cover claims against One Key Workforce. I declined to order the discovery of One Key Resources’ insurance policy to Mr Shorey.

35    Mr Markham deposed that following the Insurance Policy Decision, Adero Law did not have the ability to satisfy the pre-conditions of the LFA, and the Funder terminated the LFA in December 2020.

36    Mr Markham said that he considers that there is no other available source of litigation funding in respect of the proceeding. He also said that Adero Law is not willing to act in the proceeding on a No Win - No Fee basis.

37    Fourth, that the liquidator of One Key Workforce had advanced or explored claims in connection with the inter-relationship between the directors, the related corporations and the One Key Workforce entity. He said that if such claims are determined favourably, group members may be able to prove as priority creditors in respect to that position, and that there is a risk that the class action may be diluting or limiting the ability to obtain an outcome for these group members.

38    Fifth, that the proceeding is not the only mechanism available for group members to seek redress for their losses, and that the availability of those mechanisms reduced the commercial viability of the proceeding.

39    Mr Markham deposed as to the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act) and said that in respect to certain group members determinations had been made under that Act that One Key Workforce had contravened the FW Act contraventions, and those group members had been paid out their entitlements for accrued annual leave and redundancy pay under the Award. Any such payments would be a complete answer to the entitlements of group members through the proceeding.

40    Mr Bulusu deposed as to how Adero Law had sought but had been unable to ascertain how many group members had made recoveries under the FEG Act. Mr Bulusu stated that the body administering the FEG refused to provide information regarding Mr Shorey absent permission from Mr Shorey himself and that Mr Shorey did not respond to Mr Bulusu’s attempts to contact him to ask him to authorise the release of his FEG documents. In relation to claims in relation to the FEG more generally, Mr Bulusu said that he was informed by the Assistant Director of the FEG Claims Branch that all FEG claims in relation to One Key Workforce had been finalised and claimants had been sent written notice of the decision on their claims.

41    Mr Bulusu also deposed that he contacted One Key Workforce’s liquidators to request:

(a)    permission to inspect any documents in connection with creditors and any minutes of the creditors' committee meetings;

(b)    that the liquidator provide Adero Law with the status of any dealings with FEG;

(c)    that the liquidator provide Adero Law with an indication of any present demands made on behalf of the liquidator to One Key Workforce’s directors in relation to the liability for employment entitlements owed by One Key Workforce;

(d)    clarification as to whether the liquidator was aware of any FEG decisions that the accrued entitlements of a creditor were transferred to a related body corporate through a transmission of business under the Fair Work Act 2009 (Cth).

42    He exhibited the reply correspondence, in which One Key Workforce’s liquidators confirmed that they had not made any demands to One Key Workforce’s directors in connection with the company’s liability for employment entitlements, and responded that the second and fourth requests should be directed to FEG.

43    Sixth, Mr Markham deposed that in 2021, the Respondents underwent a corporate restructure, which gave rise to concerns that the entity pursued in the proceeding would be insolvent and would not have the backing of any deed of cross-guarantee or in the alternative, no responsive insurer.

44    Mr Markham deposed that the combination of:

(a)    the unavailability of litigation funding;

(b)    the fact that the cost of continuing the litigation to conclusion would be approximately $2 million;

(c)    the retrospective amendments to the FW Act, and the High Court decision in Rossato;

(d)    the availability of alternative redress mechanisms for group members;

(e)    the solvency and insurance or cross-guarantee position of the defendant; and

(f)    the potential difficulties of showing knowing involvement on the part of One Key Resources and/or One Key Holdings in the breaches of One Key Workforce,

led the applicant and Adero Law to the conclusion that the class action is no longer commercially viable.

Notice to group members

45    On 3 October 2023 I made orders requiring that:

(a)    by 17 October 2023, the respondents provide to a third-party mail house engaged by the applicant, the contact details of any person who was employed by One Key Workforce to work at a black coal mine in a role covered by Schedule A of the Award during the Relevant Period;

(b)    by 24 October 2023, the third-party mail house send a court-approved notice (Notice) by email to those persons, and within a further 72 hours by post to any persons to whom email delivery was unsuccessful; and

(c)    following the completion of the mailout, the third-party mail house provide a list of persons to whom the Notice was sent to the respondents, who would file the list.

46    The Notice informed group members of three options they may take in response to the proposal to discontinue the proceeding:

(a)    do nothing, in which case it is likely the class action would be discontinued. In that event, they would still be able bring their own proceeding;

(b)    propose themselves or another person to be substituted as the representative applicant; or

(c)    exercise their right to object to or oppose the proposed discontinuance.

The Notice provided that if a group member wished to take up either of the latter two options they were required notify Adero Law within 6 weeks of the notice date.

47    In accordance with the 3 October 2023 orders, the respondents filed the affidavit of Mr Lawler annexing spreadsheets which he deposed were received from an Account Manager at Cojo (which I infer is a third-party mail house). The first of those spreadsheets indicates that:

(a)    2,804 emails were successfully sent;

(b)    93 emails bounced; and

(c)    96 letters were sent by mail (93 to those whose emails bounced, 3 to those for whom no email address was provided).

The spreadsheet also indicates that the mailing provider confirmed that 2,110 of the emails were opened by their recipient.

48    The 3 October 2023 orders also required that, by 8 December 2023, Adero Law file and serve an affidavit to inform the court as to whether any group member had notified Adero Law of an intention to object to or oppose discontinuance or to seek to be substituted as the applicant in the proceeding. Adero Law filed the affidavit of Mr Borg in which he deposed that the firm received one email dated 31 October 2023 in which a group member communicated that she would like to object to the application for Court approval to discontinue the proceeding. Mr Borg deposed that Adero Law had received no information as to whether any group member is willing, following receipt of legal advice, to be substituted as the applicant in the proceeding.

49    Then, by his second affidavit Mr Markham sought to correct Mr Borg’s affidavit. He deposed that Adero Law had in fact received three emails in which group members communicated they objected to the application. He noted that on 21 February 2024, Adero Law wrote to the three individuals that objected to the Application and forwarded a copy of orders made on 20 February 2024. Those orders provided for any objectors to provide to the Court a short statement or outline of submissions and any affidavit that they wished to be taken into account by the Court in determining the application, including to identify the basis of their objection and whether they are prepared to be substituted as the representative. The 20 February 2024 orders also provided that, having regard to the material provided by objectors, the discontinuance application may be determined on the papers. Mr Markham deposed that Adero Law had not received any further correspondence from those group members containing a short statement or submissions in opposition to the discontinuance application.

Consideration

50    Since no objector provided a short statement, outline of submissions or affidavit that they sought be taken into account in opposition to the discontinuance application, I consider it appropriate to determine the application on the papers.

51    I am satisfied that approving the discontinuance of this proceeding is not unfair, unreasonable or adverse to group members’ interests.

52    First, that is because I have had the benefit of the Confidential Opinion of Mr Borg, Special Counsel with Adero Law, dated 23 August 2023, being a confidential exhibit to the first Markham affidavit. I accept Mr Borg has substantial experience in employment law, but he is an employed solicitor with Adero Law and in those circumstances his opinion cannot properly be described as independent. I have informed Mr Markham, the principal of Adero Law, that in future settlement approval applications the firm is required to obtain the opinion of independent counsel.

53    Because Mr Borg’s opinion is confidential I cannot go to the detail of it. It must suffice to note that Mr Borg analyses the likelihood of the applicant and group members being able to establish the respondents’ liability and the practical likelihood of their obtaining relief. While I am not entirely persuaded as to Mr Borg’s analysis of the prospects of success in respect of some of the claims, I was assisted by his discussion in relation to the other claims and in relation to the practical likelihood of recovery. The opinion is thorough, and it supports approval to discontinue the proceeding.

54    Second, while I am not persuaded that Mr Shorey’s case is no longer arguable as a result of the retrospective amendments to the FWA and the decision in Rossato HC, the decision to commence it was made when there was a relatively straightforward argument that the claimants were not casual employees for the purpose of the Award or the FWA, and if they could be shown to be liable for their involvement in One Key Workforce’s breaches, One Key Resources and One Key Holdings were thought either to be solvent or to have insurance. Further, until the Insurance Policy Decision, there was a possibility that One Key Workforce was insured which would no doubt have led to an application to join it is a respondent.

55    The present situation is far less favourable for Mr Shorey and Adero Law. While the present case is not on all fours with the failed claim in Rossato HC, owing to the fact that here the Award precluded the casual employment of persons doing work such as that of Mr Shorey as a casual, the liability case is now more complex and uncertain. One Key Workforce, the entity most obviously liable for the alleged civil wrong, is in liquidation and is demonstrably uninsured. In relation to potential quantum, the other respondents have been subject to a corporate restructure that obscures their financial standing, and the total number of claimants that are likely to seek compensation to a proceeding has been reduced (by an unknown number) because they have had access to alternative schemes for redress. In approving a proposed discontinuance it is not for the Court to substitute its risk assessment for the risk assessments made by the applicant and/or the applicant’s lawyers.

56    Third, and relatedly, the events to which Mr Markham deposed compromise the prospects of obtaining relief through the proceeding to an extent which critically affects the likelihood that another funder, lead applicant or solicitor will be found so that the proceeding can go forward. That is, I accept that the retrospective amendments to the FW Act, the decision in Rossato, concerns as to the respondents’ financial position, the apparent absence of insurance coverage, the likely unavailability of litigation funding, the fact that Adero Law has declined to act in the case on a No Win - No Fee basis, and the fact that no group member has agreed to be substituted as representative applicant means that the proceeding is unlikely to go forward. In such circumstances it is not unfair, unreasonable, or adverse to group members’ interests for discontinuance to be approved.

57    Fourth, assuming that the applicants could succeed on liability, the prospects of recovery are uncertain. Mr Shorey attempted to identify insurance covering One Key Workforce which might respond to a claim of this type. As noted earlier, I dismissed that application. The evidence indicated that One Key Workforce’s employment liabilities were not covered by an insurance policy held by One Key Workforce or One Key Resources: Insurance Policy Decision at [50]. But obtaining a recovery in the proceeding depends on establishing that One Key Resources and/or One Key Holdings were “involved” in the contraventions within the meaning of s 550 of the FWA, or that One Key Holdings contravened s 558B, and the Insurance Policy Decision does not preclude the possibility that either of them have insurance coverage in respect of claims made against them.

58    It is relevant that the respondents underwent a corporate restructure in 2021. The detail in relation to this restructure is not the subject of evidence, but I accept that the restructure gives rise to further uncertainty as to whether there is an entity which would be solvent or covered by a responsive insurer to pay out any compensation that may arise out of the proceeding.

59    Fifth, I accept that the availability of alternative redress through the FEG scheme reduces the commercial viability of the proceeding. It is unknown how many group members have obtained redress through the scheme, which further increases the uncertainty for any potential litigation funder, and for any legal firm which might otherwise have been prepared to conduct the case on a No Win - No Fee basis.

60    Sixth, group members were given notice of the proposed discontinuance and of their right to object and/or to seek substitution as the representative applicant. Only three people contacted Adero Law to make an objection and none of them provided a short statement as to the ground of the objection or provide any submissions in that regard. And no group member expressed a willingness to be substituted as the representative applicant or proposed someone else to take up that role.

61    Seventh, there has been no hearing or judicial determination in relation to the merits of their claims and no question of res judicata or issue estoppel arises. The discontinuance orders expressly provide that they do not affect the rights of group members to pursue a case in respect of one or more of the claims made in this proceeding. Group members may, if they wish, do so, either individually or by commencing another class action. They will have had the benefit of the suspension of the applicable limitation period from the commencement of the case, and the limitation period will not begin to run again until 60 days after filing of the notice of discontinuance. As a result group members will be returned to the position they were in before the proceeding was commenced; their rights against the respondents will not have been affected; and they will have ample time to obtain legal advice and to commence another case if they wish.

62    I have made the attached orders to approve the proposed discontinuance.

Associate:

Dated:    9 July 2024