Class actions may be the “trend” in employment law these days, however late last week, we were reminded that claimants must take care when involving themselves in such actions.
In and around 2016, Airservices made more than 500 employees redundant in an attempt to drive greater efficiency within the agency. However in June 2019, a class action was filed by a number of those redundant employees by a Canberra law firm, Chamberlains, on the basis that “there had been a series of contracts that came into existence that didn’t meet enterprise agreement standards” and that Airservices had used these contracts to make those people redundant. The class action was brought by the employees, believing that they were due thousands of dollars more in redundancy payments. They claimed that, if the class action was to succeed, Airservices would be liable for more than $12 million in payouts and penalties because of “systemic use of unlawful contracts.”
Airservices, at the time of the filing of the class action, stated that the class action was “irresponsible.”
The Federal Court was required to determine whether employees on individual contracts were subject of enterprise agreements, and thus could recover the difference between what redundancy entitlements they were paid under those individual contracts and those provided for in the enterprise agreements.
In a judgement handed down on Friday, 26 July 2019, in Duck v Airservices Australia (No.2)  FCA 1148, Bromich J of the Federal Court of Australia held that they were not covered by the enterprise agreements and therefore dismissed the application of the group members.
While the judgement itself tells the tale of competing industrial instruments, one of the points that we must draw from this is the fact that the group members now face the prospects of paying the significant costs of Airservices.
While group members feel that there is “safety in numbers” within class actions, group members still risk the same exposure to costs applications as they ordinarily would as individuals running matters.
This is a timely reminder for potential group members to exercise caution when joining class actions, and ensure that they have confidence in the application that is being filed. More importantly, it is a timely reminder for lawyers who are leading class actions that there must be reasonable prospects of success of claims, and to always conduct litigation in a responsible manner.