Schanka v Employment National Administration Pty Ltd [1999] FCA 1812

FEDERAL COURT OF AUSTRALIA

Schanka v Employment National (Administration) Pty Ltd [1999] FCA 1812 PETER SCHANKA & ORS v EMPLOYMENT NATIONAL (ADMINISTRATION) PTY LTD NG 461 of 1998 MOORE J SYDNEY 21 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 461 of 1998

BETWEEN: PETER SCHANKA & ors

Applicant

AND: EMPLOYMENT NATIONAL (ADMINISTRATION) PTY LTD

Respondent

Respondent

JUDGE: MOORE J

DATE OF ORDER: 21 DECEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS AND DIRECTS THAT: 1. A notice in the form of Annexure A to these reasons for judgment be published by 21 January 2000. 2. The notice be published: (a) by the applicants in a national daily newspaper and (b) by the respondent forwarding a copy to a manager of each office of the respondent and the manager placing the notice on the staff notice board, or such other facility as is used to post notices for the attention of staff. If there is no such facility, the manager shall affix the notice to the door of the staff amenity room. 3. The respondent file and serve a defence by 18 February 2000. 4. The matter be listed for further directions on 25 February 2000 at 9.30am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 461 of 1998

BETWEEN: PETER SCHANKA & ORS

Applicant

AND: EMPLOYMENT NATIONAL (ADMINISTRATION) PTY LTD

Respondent

JUDGE: MOORE J

DATE: 21 DECEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1. At the conclusion of the hearing on 1 December 1999 I indicated a tentative view that I would direct the publication of a notice in accordance with s 33X(1) of the Federal Court of Australia Act (Cth) 1976. I remain of that view. Section 33X(1)(a) requires a notice to be given that the proceedings have commenced and that class members can opt out. Such a notice should issue as soon as practicable: s 33X(6). However the requirement that a notice be published is qualified by the power to dispense with the requirement conferred by s 33X(2). I am invited by counsel for Employment National (Administration) Pty Ltd ("ENA") to exercise that power in relation to the notice to the entire class or part of it. They point to what is said will be the adverse impact on the stable industrial relations within ENA by notice being given. They also submit that the question of the power to set aside or void the AWA's should be answered before any notice is given. ENA contends there is no such power. I presently doubt that the Court has power to set aside an AWA if it was made under duress. Nonetheless the Employment Advocate may have, impliedly, such a power. However, notwithstanding that these issues are presently unresolved, there is an insufficient basis, in my opinion, for not informing members of the class of these proceedings, which have been on foot for over 18 months, that the proceedings have commenced and to give them the opportunity to opt out, if they wish, before the proceedings progress any further. Accordingly I propose to direct that a notice be given. The approved form of the notice is a modified amalgam of the notice proposed by the parties.