Fair Work Ombudsman v Woolworths Group Limited (Case Management)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 08 April 2022
• Neutral Citation: [2022] FCA 376
• Date: 08 April 2022

Federal Court of Australia

Fair Work Ombudsman v Woolworths Group Limited (Case Management) [2022] FCA 376

File numbers:	NSD 581 of 2021NSD 1252 of 2021NSD 2004 of 2019NSD 542 of 2020
Judgment of:	PERRAM J
Date of judgment:	8 April 2022
Catchwords:	PRACTICE AND PROCEDURE – where two regulatory actions and two class actions – where matters have common parties – where matters likely have overlapping issues – whether issues to be determined before evidence put on – whether matters heard together
Legislation:	Fair Work Act 2009 (Cth) s 545 Federal Court of Australia Act 1976 (Cth) s 33Q
Cases cited:	Brady v NULIS Nominees (Australia) Ltd [2021] FCA 999 Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; 252 FCR 150 Fair Work Ombudsman v Woolworths Group Limited (The Calculation Employees) [2022] FCA 203
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	20
Date of hearing:	5 April 2022
Counsel for the Applicant (NSD 581 of 2021):	Mr J Bourke QC
Solicitor for the Applicant (NSD 581 of 2021):	Australian Government Solicitor
Counsel for the Respondents (NSD 581 of 2021):	Mr M Seck
Solicitor for the Respondents (NSD 581 of 2021):	Ashurst
Counsel for the Applicant (NSD 1252 of 2021):	Mr J Bourke QC and Mr T Goodwin
Solicitor for the Applicant (NSD 1252 of 2021):	Clayton Utz
Counsel for the Respondent (NSD 1252 of 2021):	Ms R Doyle QC and Ms A Batrouney
Solicitor for the Respondent (NSD 1252 of 2021):	Herbert Smith Freehills
Counsel for the Applicants (NSD 2004 of 2019):	Mr R Markam and Mr N Schofield
Solicitor for the Applicants (NSD 2004 of 2019):	Adero Law
Counsel for the Respondents (NSD 2004 of 2019):	Mr M Seck
Solicitor for the Respondents (NSD 2004 of 2019):	Ashurst
Counsel for the Applicant (NSD 542 of 2020):	Mr R Markam and Mr N Schofield
Solicitor for the Applicant (NSD 542 of 2020):	Adero Law
Counsel for the Respondent (NSD 542 of 2020):	Ms R Doyle SC and Ms A Batrouney
Solicitor for the Respondent (NSD 542 of 2020):	Herbert Smith Freehills

ORDERS

		NSD 581 of 2021
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	WOOLWORTHS GROUP LIMITED (ACN 000 014 675) First Respondent ; WOOLWORTHS (SOUTH AUSTRALIA) PTY LIMITED (ACN 007 873 118) Second Respondent

order made by:	PERRAM J
DATE OF ORDER:	8 April 2022

THE COURT ORDERS THAT:

1. The parties each submit a draft short minute of order setting out their proposed directions giving effect to these reasons within seven days hereof.

2. A case management hearing be fixed for 26 April 2022.

3. The matter be fixed for trial for seven weeks commencing on 5 June 2023 with the mode of that trial to be determined at a later date.

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

ORDERS

		NSD 1252 of 2021
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	COLES SUPERMARKETS AUSTRALIA PTY LTD (ACN 004 189 708) Respondent

order made by:	PERRAM J
DATE OF ORDER:	8 April 2022

THE COURT ORDERS THAT:

1. The parties each submit a draft short minute of order setting out their proposed directions giving effect to these reasons within seven days hereof.

2. A case management hearing be fixed for 26 April 2022.

3. The matter be fixed for trial for seven weeks commencing on 5 June 2023 with the mode of that trial to be determined at a later date.

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

ORDERS

		NSD 2004 of 2019
BETWEEN:	CAMERON BAKER First Applicant ; RHYS PIRO Second Applicant
AND:	WOOLWORTHS GROUP LIMITED (ABN 88 000 014 675) First Respondent ; WOOLWORTHS (SOUTH AUSTRALIA) PTY LIMITED (ABN 34 007 873 118) Second Respondent

order made by:	PERRAM J
DATE OF ORDER:	8 April 2022

THE COURT ORDERS THAT:

1. The parties each submit a draft short minute of order setting out their proposed directions giving effect to these reasons within seven days hereof.

2. A case management hearing be fixed for 26 April 2022.

3. The matter be fixed for trial for seven weeks commencing on 5 June 2023 with the mode of that trial to be determined at a later date.

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

ORDERS

		NSD 542 of 2020
BETWEEN:	MARIA PABALAN Applicant
AND:	COLES SUPERMARKETS AUSTRALIA PTY LTD (ABN 45 004 189 708) Respondent

order made by:	PERRAM J
DATE OF ORDER:	8 April 2022

THE COURT ORDERS THAT:

1. The parties each submit a draft short minute of order setting out their proposed directions giving effect to these reasons within seven days hereof.

2. A case management hearing be fixed for 26 April 2022.

3. The matter be fixed for trial for seven weeks commencing on 5 June 2023 with the mode of that trial to be determined at a later date.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1. Travelling together are these four separate actions:

• Fair Work Ombudsman v Woolworths Group Limited (NSD 581 of 2021);

• Fair Work Ombudsman v Coles Supermarkets Australia Pty Ltd (NSD 1252 of 2021);

• Baker v Woolworths Limited (NSD 2004 of 2019) (‘Baker’); and

• Pabalan v Coles Supermarkets Australia Pty Ltd (NSD 542 of 2020) (‘Pabalan’).

2. Each concerns the alleged underpayment by Woolworths Group Limited bodies (collectively, ‘Woolworths’) and Coles Supermarkets Australia Pty Ltd (‘Coles’) of certain employees. In the actions brought by the Fair Work Ombudsman (‘the FWO’), the relief sought includes a claim for compensation on behalf of individual employees under s 545 of the Fair Work Act 2009 (Cth) (‘FW Act’). The claims in Pabalan and Baker are class actions in which similar allegations are made against the two companies albeit over a longer period of time.

3. I will refer to the suits against Woolworths as the ‘Woolworths regulatory action’ and the...