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Lawyers behind an employment case against Lovisa flagged they are open to the possibility of moving outside the scope of a typical class action proceeding and running it by test case or subgroups.
More than 300 people have signed up to a class action that alleged jewellery retailer Lovisa forced its young staff to work for free outside of their rostered hours, attend training in their personal time, paid them the wrong base rates, and did not provide rosters on time.
In a case management hearing before Justice Michael Wheelahan in the Federal Court on the morning of Friday, 14 March, counsel for the class action said there was still a decision to be made as to how the claims of the three lead applicants would be determined.
Counsel said it could run “as if it were a regular proceeding that isn’t a class action, in that all their claims will be determined”.
He said that in some cases, the allegations would operate at an individual level, so one employee would be one contravention. This would be the case for the allegation Lovisa failed to provide inspection of records in relation to the 300 employees, or 300 possible contraventions.
On the issue of common questions, counsel flagged it would likely be an issue that would have to be ventilated in the courtroom.
For example, in relation to the issue on how employees access their rosters, counsel said that if there was a practice that applied to every one of Lovisa’s employees – such as by logging onto an app – the common question could be “solved in three minutes”.
However, if the rosters were handed out at individual store level, and practices varied between states, counsel clarified this could lead to subgroups where common questions would then apply. People in other states “might have to be individually determined”.
As for overtime approval, he said an argument on whether explicit approval was needed or whether non-action by management could be counted as implicit approval may end up as a common question.
Counsel added they would plan for the most efficient way to run the case and said they would be “open to test cases”.
“We don’t want to be running a trial of common questions that are going to get us nowhere,” he said.
“It is, with respect, a little early at this stage to make that decision, other than to say it is a live question. We’re not at that stage.”
The next case management hearing has been set down in September.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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