Industrial Relations Commission of New South Wales in Court Session CITATION : Kennedy and ors v Skilled Communications Personnel Pty Ltd [2003] NSWIRComm 323 APPLICANTS John Winton Kennedy, Lorraine Maree Vandenbosh, Madeline Quinn, Susan Joy Parmiter, Dianne Margaret Sherwood, Judy Vivers, Brian William Berg, Teresa Richardson, Anthony Robert Gill, Glenda Eileen Lessing, Terence Massey Humphries, Danielle Pacey, Marjorie Kay Tomkins, Pauline Mary Small, Kaye Elizabeth Tanner, Catherine Fahy, Susan Joy Potter PARTIES : RESPONDENT Skilled Communications Personnel Pty Ltd SECOND RESPONDENT Telstra Corporation Ltd FILE NUMBER: IRC02/6725, IRC02/7358, IRC03/840, IRC03/1233, IRC03/1234, IRC03/1236, IRC03/1237, IRC03/1426, IRC03/1584, IRC03/1694, IRC03/1763, IRC03/1875, IRC03/1941, IRC03/2505, IRC03/2560, IRC03/2778, IRC03/3378 of CORAM: Peterson J CATCHWORDS : Unfair contract - Interlocutory relief - Proposed amendment to summons to include second respondent - Amendment granted. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : William North v Consolidated Gaming Corporation Ltd and Mark Rainbird v Consolidated Gaming Corporation Ltd [2000] NSWIRComm 258, 13 December 2000, unreported. HEARING DATES: 09/15/2003 EXTEMPORE JUDGMENT DATE : 09/15/2003 APPLICANT Mr D M Shoebridge of counsel SOLICITOR Lee Sames Egan LISMORE. LEGAL REPRESENTATIVES: RESPONDENT Miss V Paul SOLICITOR Australian Industry Group SYDNEY. JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 15 SEPTEMBER 2003 Matter No. IRC6725 of 2002 JOHN WINTON KENNEDY v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No. IRC7358 of 2002 LORRAINE MAREE VANDENBOSH v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No. IRC840 of 2003 MADELINE QUINN v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1233 of 2003 SUSAN JOY PARMITER v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1234 of 2003 DIANNE MARGARET SHERWOOD v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1236 of 2003 JUDY VIVERS v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1237 of 2003 BRIAN WILLIAM BERG v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1426 of 2003 TERESA RICHARDSON v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1584 of 2003 ANTHONY ROBERT GILL v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1694 of 2003 GLENDA EILEEN LESSING v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1763 of 2003 TERENCE MASSEY HUMPHRIES v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1875 of 2003 DANIELLE PACEY v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC1941 of 2003 MARJORIE KAY TOMKINS v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC2505 of 2003 PAULINE MARY SMALL v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC2560 of 2003 KAYE ELIZABETH TANNER v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC2778 of 2003 CATHERINE FAHY v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Matter No IRC3378 of 2003 SUSAN JOY POTTER v SKILLED COMMUNICATIONS PERSONNEL PTY LTD Applications under s106 of the Industrial Relations Act 1996. INTERLOCUTORY JUDGMENT (Extempore) 1 HIS HONOUR: This is a motion brought by 17 applicants in separate proceedings instituted under s106 of the Industrial Relations Act 1996 against the respondent, Skilled Communications Personnel Pty Limited, a company by which the applicants were formerly employed. 2 The employment related to work performed in a call centre by the respondent. It appears on the material now before the Commission on behalf of Telstra Corporation that the call centre was closed on 15 September 2002 and the employment of the applicants was terminated. The proceedings have been instituted over a period of time, but have reached the stage where the respondent has filed a reply to the summons in each matter and the individual applicants have filed their responses to the replies. 3 On 3 September 2003, a motion was filed by the applicants which had substantially two effects, one is to seek leave to amend the proceedings by adding a second respondent, Telstra Corporation, and the second is to make what appears to be a substantive amendment to the summons going to the nature of the former employment of the applicants with Skilled Communications Personnel. 4 On Friday 12 September the solicitor acting on behalf of the applicants, Gerard Ignatius Egan, filed an affidavit in the Registry seeking the urgent listing of the motion on the basis that the apparent terminations, to which I have referred, having been effected on 15 September 2002, the consequences of the provisions of s 108B are that any attempt to proceed against, in effect, Telstra Corporation would be subjected to a 12 month limitation period expiring on 15 or perhaps 16 September 2003, and accordingly the matter was asked to be listed urgently. 5 The matters were in Justice Staunton's list, but allocated to me for the purpose of dealing with the motions. No service has been effected upon Telstra Corporation at this stage of the proposed amended summons and, whilst in one sense it would seem curious that the Court might consider joining Telstra in its absence, as I think has been rightly pointed out, the identification of respondents to proceedings is generally a matter entirely within the prerogative of the applicant and the respondents have no, as it were, right of appearance at the point of filing. 6 Whilst Skilled Communications Personnel has opposed amendment of the summons and the grant of leave, both in respect of the addition of Telstra Corporation and in respect of the substantive amendments, I am satisfied, for much the same reasons as were identified by Justice Marks in William North v Consolidated Gaming Corporation Ltd and Mark Rainbird v Consolidated Gaming Corporation Ltd [2000] NSWIRComm 258, an unreported decision given on 13 December 2000, that I should grant leave to amend by adding Telstra Corporation. The basis is simply that the discontinuance of the current proceedings and the commencement of fresh proceedings would enable the applicants to achieve their purpose. There is no reason why the work which has been done in the proceedings so far should be wasted, and the subject of a repetition in fresh proceedings that could be commenced. 7 I therefore grant leave to the applicants to amend the proceedings by adding Telstra Corporation as the second respondent. So far as the substantive amendments to the summons are concerned, it would seem that those amendments introduce an element in the proceedings which is arguably inconsistent with that which has existed hitherto. 8 As Miss Paul for Skilled Communications Personnel has submitted, it relies upon what was, in effect, an admission in the proceedings to date by the applicants that they were casual employees. The form of amendment at least puts a question mark over that and will necessitate further consideration and response from the first respondent. Again, given that the evidence in the proceedings has not yet been put on, it seems to me appropriate that I should give the applicants leave to amend in that respect. That will have the consequence that the first respondent will need to consider its position and put on an amended reply. I give leave for that purpose. 9 Miss Paul submitted that it should be also entitled to its costs, at least in that respect, and with that submission I agree. So far as that element is concerned, I grant the applicants leave to amend. Also, I order that costs of the motion be costs in the cause and I order in favour of the first respondent costs limited to the amendment to its reply as may be occasioned by the amendment to the summons for which I granted leave today. 10 I direct the applicants to serve upon Telstra Corporation and the respondent within seven days a copy of the amended summons, the respondent having 28 days to put on any amended reply. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.