Joining Multiple Applicants in Employment Proceedings

The Court granted leave to join multiple applicants in the same proceedings due to common factual substratum and representation by the same solicitor. The applicants were seeking different amounts of payments in lieu of notice but were otherwise aligned in their claims against the respondent.

Industrial Relations Commission of New South Wales in Court Session

CITATION: [COMPANY] & [NAME] v [COMPANY] t/as [NAME] [2005] NSWIRComm 89

[COMPANY] PARTIES: [COMPANY] t/as [NAME](S): 383 of 2005

CORAM: Backman J

CATCHWORDS: Notice of Motion - application for leave to join applicants in Summons for Relief under s106 - relevant principles to be applied - common substratum of facts - all prospective applicants represented by the same solicitor - no evidence that joinder of applicants will impose an undue burden on the respondent - leave granted - orders

Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Supreme Court Rules

CASES CITED: Hyde & [NAME] v [NAME] (previously Metnorth Energy, Orion Energy, Sydney Electricity, Sydney County Council) (1999) 92 IR 409

HEARING DATES: 03/11/2005 EXTEMPORE JUDGMENT DATE: 03/11/2005

Applicant [NAME], of counsel Solicitor: [redacted] LEGAL REPRESENTATIVES:

Respondent [NAME] Solicitor: [redacted]

JUDGMENT:

- 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Backman J

11 March 2005

Matter No IRC 383 of 2005

[COMPANY] v [COMPANY] t/as [NAME]

Application for joinder of applicants to Summons for Relief

EX TEMPORE JUDGMENT

[2005] NSWIRComm 89

1 By Notice of Motion filed on 24 January, 2005 the applicants seek an order that the [NAME] to the [NAME] named applicants listed in schedule A, attached to the Notice of Motion be joined in the proceedings commenced in the names of the [NAME]. 2 The grounds and reasons for the application are set out in the affidavit accompanying the Notice of Motion sworn by [NAME] on 24 January, 2005 and are extracted below: (i) each of the applicants' claims arise out of a common substratum of facts. The only differences between the claims are: (a) the amounts claimed by each such applicant against the respondent; (b) [NAME] did not pay a premium in connection with the introduction into the respondent's business by the [NAME] applicant; (c) the respondent has alleged that the [NAME] and [NAME] applicants repudiated the contract that existed between the said applicants and the respondent; (ii) permitting the persons listed in Schedule A to be joined together as applicants in the proceedings would be conducive to a just resolution of the dispute between the parties and will limit the costs of delay of the litigation; (iii) such a joinder is unlikely to result in any unfairness to any party including the respondent; (iv) [NAME] represent each of the applicants.

3 Evidence in support of the contention by the applicants that their claims against the respondent arise out of a common substratum of facts is disclosed in the Summons for Relief which was also filed on 24 January, 2005 and which was tendered on behalf of all the applicants today before me on the Notice of Motion. The document has been marked Exhibit 1 in the proceedings. 4 In that document it is alleged that: (i) the first, the [NAME], the [NAME], the [NAME] and [NAME] are companies and that the [NAME], and [NAME] applicants are directors and business principles of the first and [NAME] applicants (I note the summons says "[NAME] applicant" but I think it should correctly state "[NAME] applicant"), the [NAME] applicant, [NAME] respectively, with [NAME] being the directors of [NAME]; (ii) the [NAME] applicant, the [NAME] applicant, [NAME] are collectively referred to as "LODS" (that is "lorry owner drivers") who, at all material times performed work for the respondent, namely the transport and delivery of the respondent's products (those products being flour and non-flour bakery products) throughout the Sydney metropolitan area by the use of motor vehicles ("the work"); (iii) the [NAME] and [NAME] applicants commenced work for the respondent in 1989. Thereafter, they were told by the respondent that they had to contract their services through a company in order to keep working for the respondent. The [NAME] and [NAME] applicants then formed the first, the [NAME] and [NAME] applicants respectively and thereafter provided their services to the respondent through their respective [NAME]; (iv) [NAME] commenced work for the respondent in 1998. [NAME] commenced work for the respondent in 2001. At all material times, these persons provided services to the respondent through their [NAME] being [NAME] in the case of [NAME], and, [NAME] in the case of [NAME]; (v) it was a custom and practice that a premium or fee referred to as a "goodwill payment" be paid to an outgoing LOD by a LOD who was entering the business to work for the respondent. Such goodwill payments were paid by the [NAME], the [NAME], the [NAME], the [NAME], and [NAME] to outgoing LODS before they commenced working for the respondent. Apparently, all of the LODS were unaware that the respondent did not require that such payments be made or requested; (vi) in the year 2000, the first, [NAME] and [NAME] applicants entered into a contract carriers agreement with the respondent ("the 2000 agreement"). As part of the negotiations for the written agreement, the LODS were required to lease specialist equipment including [NAME] trucks through [NAME]. The LODS were also told by a [NAME] for the respondent, that the term of the contract would be two years and that there would a minimum guarantee payment of remuneration of $675.00 per day. ([NAME] entered into the 2000 agreement in about 2001. In about 2002, [NAME] acquired a separate contract with the respondent); (vii) in about 17 December 2003, the respondent alleged, according to the Summons for Relief, that the LODS were given notices of termination by the respondent. The LODS denied that the respondent gave proper notice of termination. By letter dated 12 March 2003, [NAME] formally advised the respondent that he ceased working in the respondent's business in March 2003. The remaining LODS finishing work for the respondent on 27 August 2004; (viii) all the LODS allege that the 2000 agreement to which each LOD was a party was unfair on the same grounds; (xi) the [NAME] seek different amounts of payments in lieu of notice, although other amounts sought by each applicant are the same, for example, an amount of $110,000.00 representing a goodwill payment. 5 The allegations in the Summons for Relief referred to above indicate that the respective claims of each of the applicants do indeed form a common factual substratum. Moreover, all of the applicants are represented by the same solicitor, and there does not appear, on the material before me, to be such differences in the facts or circumstances of the claims as outlined in the summons for relief as will impose an undue burden on the respondent.

6 There are essential common ingredients in each of the claims such as: (i) each of the corporate applicants was employed by the respondent having entered written agreements on the same conditions which have been referred to here as the "2000 agreement "; (ii) the employment of the each of them (except for [NAME]) was terminated on 27 August 2004. ([NAME] ceased working for the respondent in March 2003. According to the Summons For Relief, the respondent alleges that [NAME] repudiated its contract with the respondent). 7 The issue of the joinder of multiple applicants in an application for Summons for Relief pursuant to s106 of the Industrial Relations Act was dealt with by Wright J, President, in [NAME] v [NAME] (previously Metnorth Energy, Orion Energy, Sydney Electricity, Sydney County Council) (1999) 92 IR 409. 8 At page 424 of that judgment, his Honour held that in certain circumstances the combined effect of sub-rule 14(1) and rule 18 of the Industrial Relations Act Rules (see now rule 18A which has superseded rule 18), which required multiple applicants under s106 to commence separate proceedings unless they seek the leave of the Court to bring one set of proceedings, need not be followed when multiple applicants were suing in relation to the same contract or arrangement. His Honour also found that: " There appears no reason why, in proceedings such as those brought where there is a significant similarity and parallel between the contracts for arrangements subject of the proceedings, leave cannot be sought by a Notice of Motion filed coincidentally with the initiating process. Such Notice of Motion would seek leave of the Court pursuant to part 8 rule 2(b) the Supreme Court Rules as incorporated in the practice and procedure of this Court pursuant to rule 85, rule 5." (Rule 2 of Part 8 of the Supreme Court Rules states that two or more persons may be joined as plaintiffs or defendants in any proceedings where the Court gives leave to do so).

9 I note that [NAME] appearing for the applicants specifically relied on this rule in the application. 10 For the reasons canvassed above, namely commonality of factual issues, representation by the same solicitor, no evidence on the material of any undue burden being imposed on the respondent if the applicants were joined in the same proceedings, and, no objection by the respondent to the application for joinder, (so the Court was advised by [NAME] for the respondent), I am of the view that leave should be granted to join the [NAME], inclusive, to proceedings number 383 of 2005. (That is the proceedings commenced in the names of [NAME]).

11 I therefore make the following orders: (i) the order sought in the applicants' Notice of Motion is granted;

(ii) each party is to pay its own costs of the motion;

(iii) the timetable pursuant to rule 18 A of the Industrial Relations Act Rules is revived. The respondent is to file and serve its Reply to the Summons for Relief by 18 March 2005. The applicant is to file and file its Response by Friday, 1 April 2005;

(iv) the matter will be set down for conciliation before me on Monday, 30 May 2005 at 2pm.

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