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NOTICE TO GROUP MEMBERS – DISCONTINUANCE OF GROUP 4 TRAINEESHIP CLAIMS

 

AARON FURNELL & ORS v SHAHIN ENTERPRISES PTY LTD ACN 008 150 543 (SAD76/2020)

 

You should read this notice carefully because your legal rights may be affected by the discontinuance of one group of claims. If approved, the proposed discontinuance will not result in the whole of the class action being discontinued. 

 

This Notice is important. It relates to your right to object to the proposed discontinuance of the traineeship claims

 

If you wish to object, you should send a copy of the attached Notice of Objection to the Court by 4 pm on 18 November 2021 to let the Court know that you oppose the discontinuance of the traineeship claims.

 

This notice is not legal advice. You should seek independent legal advice if you are unsure what to do, noting the time limit to file a notice of objection.

 

SECTION 1 – INFORMATION ABOUT THE CLASS ACTION

Why have you received this Notice?

  1. A class action has been commenced in the Federal Court of Australia by the Applicants (Mr Furnell and Others) on behalf of certain persons who were employed by the Respondent, Shahin Enterprises Pty Ltd ACN 008 150 543 (Shahin Enterprises), between 14 May 2014 and 13 May 2020 (OTR Class Action).

  2. The Federal Court of Australia has ordered that this notice be published for the information of persons who might be members of the class on whose behalf the action is brought and may be affected by the class action. You should read this notice carefully. Any questions you have concerning the matters contained in this notice should not be directed to the Court. If there is anything in this notice that you don’t understand then you should seek legal independent legal advice. 

  3. From 19 February 2021, a notice in the OTR Class Action was provided to members of the class to allow them to opt out of the proceedings (Opt Out Notice). This present notice is separate to the Opt Out Notice and only concerns the claims relating to trainees previously or currently employed by Shahin Enterprises. 

  4. The Opt Out Notice has information on: 

    1. What a Class Action is; and

    2. What the OTR Class Action is about.

You can find a copy of the Opt Out Notice at https://www.aderolaw.com.au/class-actions/on-the-run/ 

What is the OTR Class Action About? 

  1. On 14 May 2020, the Class Action was filed by Adero Law on behalf of Aaron Furnell and other former employees of Shahin Enterprises. Aaron Furnell and the other former employees who represent group members are called Applicants.

  2. The Applicants bring their claims on their own behalf and on behalf of other persons up to the date of filing of the claim who were:

    1. employed by Shahin Enterprises at any time within the period of 6 years ending on 14 May 2020, under the Shahin Enterprises Pty Ltd Employee Collective Agreement – Customer Service Employee (the Customer Service CA), the Shahin Enterprises Pty Ltd Employee Collective Agreement -Full Time Employees (Full Time CA) (which were in force until 30 June 2018) and/or the Vehicle Manufacturing, Repair, Services and Retail Award (the Award) (which was in force from 1 July 2018), as the case may be;

    2. being persons positions and circumstances summarised in paragraph 10 of the Opt Out Notice, 

(the Group Members). 

  1. The Group Members may belong to one or more of five sub-Groups. This Notice only concerns Group Members who have Group 4 Claims, as described below.

Group 4 Claims: Trainee Underpayments

  1. Only Group 4 Members are affected by the proposed discontinuance. 

  2. Group 4 Members are current and former employees of Shahin Enterprises who allege that at any time between 14 May 2014 and 30 June 2018 they: 

    1. were employed as ‘trainees’ in the positions of: 

      1. console operator; 

      2. driveway attendant; or

      3. roadhouse (food) attendant, 

pursuant to the Customer Service CA during the Collective Agreement Period,

  1. were engaged as “Off Job” trainees during their employment in this period; and

  2. performed work during this period and were paid a base rate of pay for such work which was lower than the comparable base rate of pay that would have applied had the Award applied to them and not the Customer Service CA

(the Group 4 Claims).  

  1. If you meet these criteria, you are a Group 4 Member.

  2. The First, Fourth and Fifth Applicants sought orders from the Court in the OTR Class Action on behalf of themselves and the Group 4 Members to recover:

    1. compensation for the difference between the pay they received and the rate of pay that Shahin Enterprises was required to pay under Schedule E of the Award;

    2. to recover compensation for amounts they claim not to have been paid and for payment of interest up to judgment on the above amounts; and

    3. to impose “pecuniary penalties” (similar to a fine) on Shahin Enterprises which are penalties which the employer can be ordered to pay in relation to a contravention under the Fair Work Act 2009 (Cth) (Act). Pecuniary penalties can only be ordered by the Court, and only if the Court makes a finding that there has been a contravention of the Act. The Applicants seek an order from the Court that any pecuniary penalty which Shahin Enterprises may be ordered to pay be paid to Group Members on whose behalf the Applicants are claiming.

  3. The allegations made by the First, Fourth and Fifth Applicants on behalf of themselves and other Group 4 Members against Shahin Enterprises are set out in the Applicants’ Further Amended Statement of Claim, a copy of which is available at: https://www.aderolaw.com.au/class-actions/on-the-run/.

  4. The Respondent has filed a defence in the Class Action and denies the allegations against it. A copy of Shahin Enterprises’ Defence is available at the same link set out above at paragraph 12, together with the Applicants’ Reply to that Defence.

Proposed Discontinuance of the Group 4 Claims

  1. The Group 4 Claims were based on the First, Fourth and Fifth Applicants, and the Group 4 Members they represent, having completed “Off Job” traineeships and being paid less than they were entitled to under the Award. 

  2. Since the Applicants filed their Further Amended Statement of Claim on 27 August 2020, they have since compiled and provided the Respondent with statements of evidence they would seek to rely on in Court (the Applicants’ Statements of Evidence). 

  3. In the preparation of the Applicants’ Statements of Evidence, it became apparent that there was not sufficient commonality to support the Group 4 Claims as pleaded in the Further Amended Statement of Claim because although the First Applicant alleges that he did not receive any training, the Fourth and Fifth Applicants: 

    1. completed “On Job” training; and

    2. this “On Job” training was: 

      1. sometimes conducted during the Fourth and Fifth Applicants’ rostered hours and was paid; or

      2. sometimes conducted outside the Fourth and Fifth Applicants’ rostered hours and was unpaid. 

  4. This led the Applicants to decide that the Group 4 Members could not definitively plead that they had been underpaid on the basis of being solely engaged as “Off Job” trainees or on the basis that they had received no training at all. 

  5. Because the evidence of the Applicants’ and Group 4 Members’ experiences in respect of their traineeships varied, the Applicants formed a view that: 

    1. the Group 4 Claims could not be run as a class action because the facts relating to the Group 4 Members were not common to the group; and

    2. the cost of running each Group 4 Member’s claim individually would be greater than any compensation they might recover. 

  6. That view does not affect the Group 1, 2, 3 and 5 Claims, and if you have one or more of those claims in addition to Group 4 Claims, the proposed discontinuance will not affect that.

  7. As a result, the Applicants have sought leave to discontinue the Group 4 Claims. 

  8. Further information about options in relation to the proposed discontinuance is contained in Section 2 below. Please read the information about your options carefully.

Application for Discontinuance

  1. The Applicants cannot discontinue the Group 4 Claims without leave of the Court pursuant to section 33V of the Federal Court of Australia Act 1976 (Cth). 

  2. The Applicants have filed an Interlocutory Application seeking leave to discontinue the Group 4 Claims. 

  3. This Notice has been provided to you as part of the process seeking such leave. The following paragraphs outline how the Court will decide whether the discontinuance should be approved. 

The hearing to decide whether the discontinuance should be approved

  1. The Court will hold a hearing to decide whether the discontinuance is unfair or unreasonable in all the circumstances. 

  2. The hearing will be at 2.15 pm on 29 November 2021. 

  3. The hearing will be conducted in a courtroom in the Roma Mitchell Commonwealth Law Court Building at 3 Angas Street Adelaide, but with liberty to the parties outside South Australia to appear by video link or Microsoft Teams link. 

  4. Lawyers for the Applicants and the Respondent will be at the hearing. 

  5. You can attend the hearing if you want to, but you are not required to attend the hearing. 

  6. If you choose to send a Notice of Objection to the Court, you can ask to address the Judge at the hearing about why you think the discontinuance application for the Group 4 Claims should not be approved. 

  7. If you did not send a Notice of Objection to the Court by 4 pm on 18 November 2021, you can still seek permission to address the judge about the discontinuance of the Group 4 Claims. It will then be up to the Judge to decide whether you can speak. 

Am I liable for any costs and charges? 

  1. You are not, and will not be, liable for any “out of pocket” legal costs as a result of the proposed discontinuance, whether or not it is approved. 

  2. But whether or not the discontinuance of the Group 4 Claims is approved, if the OTR Class Action: 

    1. proceeds to judgment, the Applicants’ case is successful, and the Applicants are awarded damages; or

    2. the matter is settled; 

the cost of Adero Law Pty Ltd t/as Adero Law’s legal fees may be paid in part or in full prior to the distribution of any sum you are entitled to. In either event, the Court will be required to approve the way in which funds are calculated and distributed. 

  1. If the Applicants are unsuccessful, you will not be liable for any costs or charges. 

Where can I get more information?

  1. If you are unsure of what to do, you should seek independent legal advice.

SECTION 2 – YOUR OPTIONS

Group Members have two options, depending on whether they wish to object to the discontinuance application or to do nothing. These options are set out below. 

Option 1: Object

  1. If you do not wish to object to the application for leave to discontinue, do nothing.

  2. If you wish to object to the application for leave to discontinue, you must complete the Notice of Objection attached at Schedule A below and submit it to the Court by the Objection Deadline. The Objection Deadline is 4 pm on 18 November 2021. 

  3. If you file a Notice of Objection, your status as an: 

    1. Unregistered Group Member; or

    2. Registered Group Member;  

will not be affected. 

  1. The Notice of Objection must be submitted to the South Australian Registry of the Federal Court of Australia by post or email at the following addresses:

  1. sareg@fedcourt.gov.au, with the email subject line: ‘Objection Notice SAD76/2020; or

  2. Federal Court of Australia Registry, GPO Box 1350, Adelaide SA 5001

Option 2: Do nothing

  1. If you do not submit a Notice of Objection (and you have not already signed a Retainer Agreement with Adero Law), your entitlement to participate in the OTR Class Action will remain unchanged. 

 

SCHEDULE A

NOTICE OF OBJECTION

COMPLETE THIS FORM IF YOU WISH TO OBJECT TO THE DISCONTINUANCE OF THE TRAINEESHIP CLAIMS IN THE CLASS ACTION

Federal Court of Australia

District Registry: South Australia

Division: Fair Work

Aaron Furnell & ORS
Applicants

Shahin Enterprises Pty Ltd ACN 008 150 543
Respondent

To:       sareg@fedcourt.gov.au

Subject Line: Discontinuance of Traineeship Claim Notice SAD76/2020

            OR

Federal Court of Australia Registry

GPO Box 1350

Adelaide SA, 5001

Name of individual: 

 

Contact email: 

 

Contact number: 

 

 

I am a Group Member the above Proceedings and I object to the proposed discontinuance of the claims relating to traineeships in the above Proceedings because [set out reasons for objection or attach additional pages]: 

 

 

 

 

Date: 

 

Signature: 

 

Name of signatory: 

 

 

Class Action Information Notice

Dear Sir or Madam

SAD76/2020 – Aaron Furnell & Ors v Shahin Enterprises Pty Ltd ACN 008 150 543

1. Why are you receiving this communication?

1.1 You were an employee of Shahin Enterprises (the Respondent) and your legal rights may be affected by Action No. SAD 76 of 2020 which Mr Aaron Furnell and four other Applicants (the Applicants) have commenced in representative capacities in the Federal Court of Australia (the Class Action).

1.2 In the Class Action, the Applicants allege that at various times over periods of up to six years, the Respondent failed to make payment of the wages to which its employees were entitled, and that it made deductions from the wages of employees which were not permitted to be made under the Fair Work Act 2009 (Cth).

1.3 The Federal Court of Australia has directed that the parties jointly write to you to provide you with information in relation to The Class Action.

2. What The Class Action is about

2.1 On 14 May 2020, The Class Action was filed on behalf of Mr Aaron Furnell, a former Driveway Attendant, and four other Applicants who are former employees of the Respondent, employed at On The Run sites.

2.2 The Applicants bring their claims on their own behalf and on behalf of other persons who were:
(a) employed by the Respondent at any time within the period of 6 years ending on 14 May 2020,
(b) in the positions and circumstances summarised in paragraph 2.3 below,

(the Group Members).

2.3 The Applicants wish the Court to resolve common questions relating to five sub-categories of the Group Members. The common questions are:

Group 1 Members (Certain Non-salaried Staff)

(a)Whether the Respondent was required by law to pay certain non-salaried staff for time they spent working, or being available to work:

(1) in the 10 minutes prior to the commencement of their shift (if they were directed to arrive at work early);
(2) during their allotted meal breaks (if they were directed to serve customers during their meal breaks or to be available to serve customers during their meal breaks); and/or
(3) after the conclusion of their shifts (if they were directed that they were unable to leave work at the conclusion of their shifts until their allocated duties were performed).

(b) Whether there was a common or general practice of Store Managers and Area Managers directing such Group Members to work such hours without payment.

Group 2 Members (Certain Non-Salaried Staff)

(c) Whether the Respondent was required by law to pay certain non-salaried staff for time they worked in addition to their ordinary hours at a higher overtime rate of pay.

(d) Whether there was a common or general practice of Store Managers and Area Managers directing such Group Members to work such additional hours without being paid at an overtime rate.

Group 3 Members (Certain Salaried Managers)

(e) Whether the Respondent was required by law to pay certain salaried staff in ‘managerial’ positions amounts in excess of their usual salary for additional hours worked in excess of their ordinary hours, including:

(1) at the end of their shifts;
(2) by working through their scheduled breaks;
(3) by performing additional shifts,
if they were directed to perform that work.

(f) Whether there was a common or general practice of Store Managers and Area Managers directing such Group Members to work such additional hours but not pay them for such additional hours.

Group 4 Members (Certain Trainees)

(g) Whether the Respondent was required by law to pay certain trainees at a rate of pay provided for in the relevant modern award which was higher than that provided for under their collective agreement.

Group 5 Members (Unlawful Deductions from Certain Staff Wages)

(h) Whether it was unlawful for the Respondent to make deductions from staff wages for uniforms supplied to employees and obtaining pre-employment National Police Certificates.
(i) Whether such Group Members, from whose pay such deductions were made, should be compensated for this.

Further details of the description of Group Members are set out in the Applicants’ Statement of Claim as amended, which is available at the link in paragraph 9.1 below.

2.4 The Applicants seek orders from the Court:
(a) to recover compensation for amounts they claim not to have been paid or which should not have been deducted from their wages due to one or more of the following claims:
(1) being directed to do work before the commencement of a shift, but not being paid for this time;
(2) being directed to serve customers or being available to serve customers during meal breaks, but not being paid for this time;
(3) being directed to finish tasks and do work after the end of their shifts but not being paid for this time;
(4) not being paid for overtime work at overtime rates of pay;
(5) not being paid for additional hours at overtime rates of pay; and
(6) deductions being made from wages for uniform and police check costs;
(b) for payment of interest up to judgment on the above amounts; and
(c) to impose “pecuniary penalties” (similar to a fine) on the Respondent.

2.5 The pecuniary penalties are a penalty which the employer can be ordered to pay in relation to a contravention under the Fair Work Act 2009 (Cth) (Act). Pecuniary penalties can only be ordered by the Court, and only if the Court makes a finding that there has been a contravention of the Act.

2.6 The Applicants seek an order from the Court that any pecuniary penalty which the Respondent is ordered to pay be paid to Group Members of the Group on whose behalf they are claiming.

2.7 The Class Action will only finally determine the individual claims of the five Applicants.

2.8 Once the alleged common questions are determined, Group Members who also bring a claim will be required to prove their own claims, however they will not have to prove any of the legal or factual common issues to the extent they are determined in favour of the Applicants by the Court in The Class Action.

3. Participation in The Class Action

3.1 This matter is currently being conducted by Adero Law on a no-win/no-fee basis. A copy of the Adero Law retainer can be obtained from that law firm.

3.2 You do not need to retain Adero Law to be a member of the class action, as at this point the class action is being run as an ‘open class’. This means that anyone who falls within any one or more of the five Group Member definitions is automatically part of the class action, even if they have not signed a retainer with Adero Law.

3.3 At an appropriate time, the Court will make orders that you be notified of an opportunity to ‘opt out’ of the The Class Action. This means that you will be able to choose whether or not to continue in the class action.

3.4 If a settlement agreement of The Class Action is reached between the Applicants and the Respondent for the benefit of the Group Members, any such settlement requires approval of the Federal Court of Australia in accordance with section 33V of the Federal Court of Australia Act 1976.

4. Corrections of Adero Law Statements

4.1 Adero Law has stated publicly that:

(a)“the exploitation of workers has become a business model”;
(b) the Respondent “has had every opportunity to implement fair business practices and has failed to do so”;
(c) “the Peregrine Corporation, the parent company of OTR, has been involved in several claims at the South Australian Employment     Tribunal” (SAET);
(d) “numerous individual cases run on behalf of On The Run workers have been heard in the SAET”.

4.2 In relation to these matters:(a) the comment by Adero Law regarding the exploitation of workers was not made in respect of the Respondent;(b) the Respondent vigorously denies that its business practices are anything other than fair and proper;

(c) Peregrine Corporation has not been involved in any proceedings in the SAET and is not the parent entity of the Respondent;
(d) the Respondent has not been a party to numerous individual cases in the SAET. In fact, despite employing thousands of employees, there have previously only ever been four claims against it by former employees in which it has been alleged that they have not been paid correctly.

4.3 Adero Law’s website states that the amount of “lost wages” claimed in the Class Action is in the order of $50 to $70 million. In fact, the amount of the claims made in the Class Action is not specifically pleaded or subject of evidence at this stage of the proceedings. If the Class Action is successful, which is not guaranteed, the amount of each Group Member’s claim will be determined based on their own individual circumstances.

5. The role of the Respondent Claims Investigation and Resolution Process

You may have already seen an email from the Respondent stating that it has an established process for investigating any payment related issues. The Respondent has publicly stated a commitment to fully rectifying payment related issues, with interest. Information about the Respondent’s Claims Investigation and Resolution Process can be obtained from the Respondent.

6. Participating in the The Class Action and the Respondent’s Claims Investigation Process and Resolution Process

6.1 The Respondent Claims Investigation Process may assist individuals to resolve some underpayment claims. You can participate in this process without entering into a retainer with Adero Law. Any resolution does not require the approval of the Federal Court of Australia.

6.2 You can participate in both the Respondent Claims Investigation Process and The Class Action. Adero Law and the Applicants are supportive of Group Members participating in the Respondent Claims Investigation Process, should they choose to do so.

6.3 In the Respondent’s Claims Investigation Process:
(a) The Court will not be involved as the process is separate from The Class Action the Court.
(b) You will not be represented by Adero Law on a no win / no fee basis.
(c) There is no charge to you for participating.
(d) The Respondent will endeavour to determine your claim within two to three months of lodging your claim, with a right of review by an      independent barrister engaged by the Respondent (at no charge to you) if you are dissatisfied with the outcome.

7. Recent changes and clarifications as to who is a Group Member and which Group Members the Applicants are representing

7.1 When The Class Action was commenced, Group 4 Members included people who were employed under the Respondent’s full time collective agreement. The Applicants have amended the claim so that it covers only people who were employed under the part time collective agreement. This means that if you were employed as a trainee under the full time customer service collective agreement, you will no longer be able to participate in the Group 4 Claim.

7.2 The Class Action has also been amended so that some of the Applicants have changed the way that they are bringing their claims on behalf of the Group Members.

(a) In the Group 1 Claim, Mr Furnell was initially bringing the claim on behalf of people who were employed under the relevant modern award as well as the part time collective agreement – he is now no longer bringing the claim on behalf of people employed under the modern award.
(b) In the Group 5 Claim, all of the applicants are bringing the claim on behalf of Group Members. It should be understood that Mr Furnell, Mr Palmer and Mr Williamson are bringing the claim only on behalf of people who were employed under the collective agreement, while Paul Young and Shannon Mahoney are bringing the claim on behalf of people who were employed under the collective agreement and the modern award.

8. Case Management Status

8.1 On 3 July 2020, the Court made various directions for the further conduct of the matter. The Applicants seek to make certain amendments to the Originating Application. The Respondent has not yet been directed to file a defence. The orders made by the Court can be accessed at https://www.comcourts.gov.au/file/FEDERAL/P/SAD76/2020/order_list.

8.2 The proceedings are next before the Court on 28 August 2020.

9. Further Information

9.1 If you would like more information about the The Class Action, you can see the papers the Applicants have filed with the Court explaining their claim (called the “Originating Application” and a “Statement of Claim” as amended) on the website of the Federal Court of Australia at
https://www.fedcourt.gov.au/law-and-practice/class-actions/class-actions.

9.2 You can contact Adero Law at ontherun@aderolaw.com.au.

9.3 You can contact the Respondent, Shahin Enterprises, in relation to the Respondent Claims Investigation Process at Payroll.Enquiry@otr.com.au

10. Next Steps

There are no steps you need to take at this time in response to this communication.