Update
On 18 November 2024, Justice Watson made orders regarding the timetabling of the class action. The orders can be viewed here.
Below is a summary of what will happen next, as ordered by Justice Watson:
By 26 November 2024
The Emergency Services Superannuation Board (ESSSuper) are required to provide a list of private sector employers who have employed members of the Transport Scheme since April 2018.
By 10 December 2024
The Plaintiffs (being the representative applicants, bringing the claim on behalf of the group members) will need to provide their ‘discovery’ documents to ESSS.
By 31 January 2025
ESSS will produce some additional documents we have requested, which relate to the administration of the Transport Scheme.
21 February 2025
The Court will hold a hearing on 21 February 2025 to address any procedural matters and ensure the case continues to progress efficiently.
Mediation Between 14 April 2025 and 1 May 2025
Both parties will participate in mediation during this period to explore the possibility of resolving the matter without proceeding to trial.
Overview of ESSSuper Class Action
Gordon Legal has commenced a class action against ESSSuper for unpaid super entitlements.
The class action argues that ESSSuper failed to include shift penalty allowances when determining the super to be paid to some Transport Superannuation Fund (Transport Fund) members.
The class action covers people who are retired and people who are still working.
The class action will represent a mix of transport workers who are still actively working and those who have already retired and are eligible to join the legal action.
Am I eligible to join?
You may be a group member of this class action, if:
- You are or have been a member of the Transport Fund; and
- You were an employee of a prescribed transport authority (e.g. Metro Trains) and/or performed a recognised service in the last two years of you were a member of the Transport Fund;
- You worked shifts when you were a member of the Transport Fund; and
- You received a shift penalty allowance in the last two years you were a member of the Transport Fund; and
- You received or became entitled to receive a retirement benefit; OR
- Your shift penalty allowance has not been approved by the ESSSuper Board.
If you are a member of the Transport Fund, your Annual Benefit Statement will state that you are a member “in the Transport Scheme”. This will be on the top right hand corner of page 1 of the Annual Benefit Statement. You can see an example of an Annual Benefit Statement here.
Please get in touch if you have any questions or feel you may be meet any of the above criteria.
You can register your interest in the class action below.
Frequently Asked Questions
ESSS Unpaid Super (Transport Workers) Class Action
What is a class action or group proceeding?
A group proceeding, also known as a class action, is a court procedure brought by one or more individuals known as lead plaintiffs on their own behalf and on behalf of other people who have similar claims against the same party (the respondent). The individuals in the wider group are known as group members.
Group proceedings are brought to resolve common issues of fact or law for the wider group. Group members don’t have to have identical claims. In fact, it is to be expected that there will differences between the loss and damage suffered by each individual group member.
What is this class action about?
The class action is about the miscalculation and underpayment of the super benefits of members of the Transport Fund.
The lead plaintiffs argue that ESSSuper has breached its obligations to members of the Transport Fund by failing to include shift penalty allowances in the calculation of “salary”, for the purpose of calculating super benefits.
If you have retired, resigned or been retrenched and your final superannuation entitlement has already been calculated, the class action demands that ESSSuper pay you the amount you have been underpaid.
If you have not yet retired, the class action demands that ESSSuper be made to calculate super entitlements with the inclusion of shift penalty allowances.
Am I a group member?
A “group member” or “class member” is a person who shares a dispute with the representative plaintiff in a class action, even though they may not know it.
A lead plaintiff is a person who “represents” the other people in the class action.
You may be a group member of this class action if:
- You are or have been a member of the Transport Fund; and
- You were an employee of a prescribed transport authority (e.g. Metro Trains), and/or performed a recognised service in the last two years of your membership of the Transport Fund;
- You worked shifts when you were a member of the Transport Fund; and
- You received a shift penalty allowance in the last two years you were a member of the Transport Fund; and
- You received or became entitled to receive a retirement benefit; OR
- Your shift penalty allowance has not been approved by the ESSSuper Board.
The class action is an ‘open’ class action.
This means that every person in this category will be included in the class action unless they take steps to positively opt out of the proceedings.
Why should I register?
Registering will give you updates about the progress of the class action.
What does it cost to take part in the class action?
This class action is partly funded by the litigation funder, Omni Bridgeway, with the balance funded by Gordon Legal on a ‘No- win, No-Fee’ basis.
There is no out-of-pocket cost to taking part in the class action. It is free to register.
You will not have to pay anything If the class action is unsuccessful.
If the class action is successful, then the lawyer’s legal fees and the commission of Omni Bridgeway, will be subtracted from the amount awarded to the group as a whole.
Any payment of legal fees or commission must be first approved by the Court as fair.
Further information about Omni Bridgeway can be found here.