Update
On 21 February 2025, 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 22 April 2025
Alstom, Downer EDI Rail, Jacobs Group (Australia), the John Holland Group, the National Heavy Vehicle Regulator, Pacific National, UGL, V/Line and VicTrack produce documents containing the contact details of each person currently or formerly employed by an Employer who is (or was) a member of the Transport Superannuation Fund (Transport Fund) and the circumstances of their employment including whether they performed shift work.
By 29 April 2025
The parties will attend a conference before Judicial Registrar Baker to facilitate discussion concerning the further categories of discovery to be given by the Emergency Services Superannuation Board (the Board).
By 7 May 2025
The parties may file any applications for discovery, if following the conference on 29 April 2025, the categories of discovery are unable to be agreed upon. The parties will also provide to the Court the agreed form and content of orders for the notification to group members of the proceeding and of their right to opt-out.
Mediation Between 14 July 2025 and 1 August 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 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 private sector employer (e.g. Metro Trains or Yarra Trams) 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.