Federal Court of Australia

Rogers v McDonald’s Australia Ltd [2026] FCA 542

ORDERS

THE COURT ORDERS THAT:

1.    The orders made on 24 April 2026 be vacated.

Conferral

2.    Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the legal representatives for the parties are to confer in person, commencing at 10:00am on 27 July 2026 and continuing until 30 July 2026 unless earlier concluded, with the assistance of a facilitator to be appointed, and attempt to agree on and produce the following documents (Conferral):

(a)    a document entitled “Statement of Agreed and Non-Contentious Facts” which identifies, in narrative form, the relevant facts in respect of which there is agreement or no bona fide contest between the parties;

(b)    a document entitled “Factual and Legal Issues for Determination” which identifies:

(i)    each substantive contested factual issue in respect of which the parties consider it necessary for the Court to make findings (Principal Contested Facts in Issue); and

(ii)    each contested legal issue in respect of which the parties consider it is necessary for the Court to determine at trial (Contested Legal Issues);

(a)    a list of common questions to be determined at the initial trial; and

(b)    agreed or competing draft orders for the completion of any interlocutory steps until trial, including the completion of discovery.

3.    The legal representatives for the parties participating in the Conferral are to do so in good faith and consistently with their obligations under Pt VB of the FCA Act (including in facilitating the narrowing of issues by reducing the scope of any documentary tender).

4.    By 5:00pm on 30 July 2026, the parties are to provide to the Associate to Justice Lee:

(a)    the agreed documents prepared in accordance with orders 2(a), 2(b) and 2(c); or

(b)    in the event the parties are unable to reach agreement as to the contents of any of the documents to be prepared in accordance with orders 2(a), 2(b) and 2(c), one version of the draft agreed document with the extent of the disagreement identified in markup together with brief submissions explaining the reasons for the disagreement.

Initial Trial

5.    The initial trial will determine:

(a)    liability on all claims for relief relating to the employees listed in Annexure A to these orders (sample employees) in respect of their employers listed in Annexure A to these orders (sample employers) and in respect of the first respondent, including claims under ss 557A and 558B of the Fair Work Act 2009 (Cth); and

(b)    the common questions that will be specified at the next case management hearing on 31 July 2026.

Points of Claim

6.    By 26 June 2026, the applicants file and serve points of claim in respect of Leah Cathcart, Jacob Stewart, Kieran Giumelli and Mikayla Martin-Coats.

Case Management Hearing

7.    The matter be listed for a case management hearing at 12:00pm on Friday, 31 July 2026 in Melbourne.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    This proceeding was commenced as long ago as 2023. It has what might fairly be described as a somewhat chequered procedural history. Yesterday, the applicants finally filed the affidavits which they propose to rely upon in-chief. The curiosity of this case is that, until today, it has been somewhat unclear as to what the issues relevant to that case in-chief comprise.

2    Put in broad terms, this is a class action claiming compensation on behalf of current and former McDonald’s employees who were managers at corporate-owned and franchisee-owned McDonald’s “restaurants” between 6 December 2017 and 3 February 2020. It is alleged that these employees were not paid for work performed before the rostered start time and/or after the rostered finish time of their shifts.

3    To date, only McDonald’s Australia Ltd (McDonald’s Australia) and one of the franchisees, Pollburg Pty Ltd (Pollburg), have actively defended the proceeding. All other franchisee respondents were relieved of any obligation to participate actively prior to an “initial trial” of the proceeding.

4    There has been much debate over several case management hearings as to the precise shape and scope of that initial trial. Today, I have heard argument over many hours as to the competing contentions about what should be determined at that trial.

5    This is somewhat more complicated a task than is often the case because, unlike many class actions, given the nature of the present allegations, there is no allegation of contravening conduct that can be determined on a truly common basis. That said, there are some substantial common issues of fact and law that must be resolved prior to determining whether or not McDonald’s Australia or any of the franchisees engaged in contravening conduct. The challenge, then, is balancing the need for an initial trial of a manageable scope with the need to provide for the resolution of sufficient issues to facilitate either a curial or non-curial resolution of group member claims.

6    The applicants have filed affidavits from seven deponents: Rhys Rogers, Bodie Spark, Chelsea Jessop, Leah Cathcart, Jacob Stewart, Kieran Giumelli, and Mikayla Martin-Coats. The first three of those deponents are applicants in the proceedings. Ms Cathcart has a claim against McDonald’s Australia. Mr Stewart has claims against four respondents who, hitherto, have taken no active role in the proceeding. Mr Giumelli and Ms Martin-Coats also have claims against Pollburg.

7    The solicitors for Pollburg act for the franchisees for whom Mr Stewart worked, being: Madimase Beyond 13 Pty Ltd (the one hundred and seventy-seventh respondent), GIQSR Pty Ltd (the ninety-fifth respondent), Aljawida Pty Ltd (the ninth respondent), and Jefferson Lane Enterprises Pty Ltd (the one hundred and thirty-fourth respondent) (affected franchisees). These affected franchisees respectively operated the Mayfield East and Mayfield Main, Kempsey South, Kempsey Main, and Labrador McDonald’s “restaurants”.

8    Two questions have been the focus of submissions today: first, whether the individual claims of some or all of the deponents of these affidavits (who are either applicants or group members) ought to be determined at the initial trial; and secondly, if so, whether the characterisation of any proven contravention as a “serious contravention” (within the meaning of s 557A of the Fair Work Act 2009 (Cth) (FWA)) ought also to be determined at the initial trial.

B    CONSIDERATION

B.1     Scope of the Initial Trial

9    The question of whether there should be a more confined initial trial related only to the claims of the applicants, or the applicants and all the group members identified, is a finely balanced one. Ultimately, however, I have concluded that it ought to be a trial of the claims of all those who are coming along to give evidence.

10    The most important factor informing my decision is that it will be necessary to hear their evidence and make findings based on their testimony in any event, as their evidence is relied upon to prove aspects of the common issues in the representative applicant’s claim (which seeks to establish a “system”, the details of which are unnecessary to address for present purposes).

11    Further, when I enquired of the respondents as to the difference in how long it would take for them to put on their evidence (in relation to a narrower or broader initial trial), the difference suggested on behalf of McDonald’s Australia was essentially non-existent. The difference suggested on behalf of Pollburg was an additional four months. If there was a prospect for the respondents’ evidence to get on significantly quicker if a narrower scope of the trial had been ordered, this would have been a powerful factor in favour of having a narrower trial, but this is not the case.

B.2     Serious Contravention

12    The second question is whether or not the initial trial should deal with the issue of serious contravention.

13    The point made by Mr Pollock on behalf of McDonald’s Australia was that the vast bulk of the alleged contraventions in this case involve consideration of a previous iteration of s 557A of the FWA. That section provides that a contravention of a civil remedy provision will be a serious contravention if: first, the person knowingly contravened the provision; and secondly, the person’s conduct constituting the contravention was part of a systemic pattern of conduct relating to one or more other persons (see s 557A(1) as enacted).

14    For the purposes of the second of these requirements, s 557A(2) of the FWA, as enacted, provides that the Court “may have regard to” a series of factors, including:

(a)    the number of contraventions (the relevant contraventions) of this Act committed by the person; and

(b)    the period over which the relevant contraventions occurred; and

(c)    the number of other persons affected by the relevant contraventions…

…

(Emphasis in original).

15    Mr Pollock submitted that given any proven contravention in this case would be an individualised determination, the Court will be deprived of the full range of matters to which it may have regard in making the assessment as to whether that proven contravention is properly to be regarded as a serious contravention.

16    At least on a preliminary reading of the section, Mr Pollock’s submission has some force, however, at the end of the day, it is the applicants who are making the allegations and marshalling the evidence in support of their case that serious contraventions should be identified. At the conclusion of the initial trial, there will either be a contravention established or no contravention established. If a contravention is established, then that contravention (on the findings made on the evidence adduced) will have characteristics which make out the two requirements of s 557A(1) of the FWA or not.

17    The applicants consider that the initial trial will be of far less utility if the serious contravention issue is left undetermined. On the premise a contravention or contraventions are found, they contend that without a resolution of the proper characterisation of that contravention or contraventions, the prospects of any consensual resolution would be diminished. It is not my role to gainsay this assessment which, obviously, is informed by many factors to which I am not privy.

18    The applicants have made their forensic choice. They no doubt understand the risks of the choice they have made given the terms of s 557A(2). In all the circumstances, I am persuaded that I should deal with the question of serious contravention at the initial trial in respect of the pleaded claims of contravention.

19    At the risk of stating the obvious, this does not, of course, foreclose any submission by the respondents that the evidence adduced at the initial trial, and any findings made, provide an infirm basis for the characterisation of any proven contraventions as serious contraventions. The evaluation of any such submission is a matter for another day.

C    A FURTHER MATTER

20    There is a further matter I should mention.

21    I am conscious that, by having a broader trial, the affected franchisees who have had dealings with Mr Stewart will now need to make decisions as to the level of their involvement at the hearing.

22    I have long been conscious of the fact that it would be contrary to the case management objectives in Pt VB of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to require those respondents against whom claims are not being advanced at the initial trial to be required to take an active part in the proceedings prior to the initial trial unless, of course, they wanted to be involved.

23    On 24 April 2025, an order was made that the solicitors for the franchisees serve the franchisees with a form of notice. Although it serves a different purpose, in some respects this was a notification akin to an opt-out notice. On one level, this might be thought to be somewhat paternalistic (given that all these respondents are represented by competent solicitors and counsel), but I wish to be assured that they were apprised of the reality that in the event that even though they did not take any active steps in the proceedings, then the Court will be making legal and factual findings which will bind them.

24    It will not, of course, bind them through the operation of s 33ZB of the FCA Act, which would be the case with non-party group members, but rather at law and in equity, pursuant to ordinary principles of preclusion, which would prevent the re-agitation of common issues of law and fact determined in proceedings to which they always have been, and remain, a party.

25    I do not think it is necessary that I again enter the fray and require a notice to be sent to the affected franchisees. They are legally represented and will, no doubt, be apprised by their solicitors of the current development in the litigation, namely that specific orders will be sought against them at the hearing which may result in findings of contravening conduct and consequential relief, including orders for compensation.

26    Having been given this advice, it will then be a matter for those affected franchisees as to how they wish to manage the conduct of their defence to the proceedings going forward and the extent to which they wish to be actively involved.

27    I am also confident that, given the representation of the balance of the other franchisees, and the combination of the earlier advice they have no doubt received and the notice that has already been given, they remain aware that their position (and, in particular, that their rights will be affected, one way or another, by the outcome of the initial trial to which they are a party, notwithstanding that they continue to play a passive role in the litigation).

D    PROCEDURAL MATTERS

28    There has been a degree of doomsaying today about the amount of time that will be necessary for the respondents to file their evidence and complete their obligations to provide standard discovery pursuant to r 20.14 of the Federal Court Rules 2011 (Cth). For example, on behalf of McDonald’s Australia, I am told it will take a further six months to complete standard discovery.

29    It is unnecessary for me to explain in this judgment why I am vexed at the extent of this estimate, given that proceedings have been on foot for so long and the nature of the standard discovery task, which is tempered by the requirement to take only reasonable searches to obtain documents which are directly relevant and must meet at least one of the following four criteria: (a) the documents are those on which the party intends to rely; (b) the documents adversely affect the party’s own case; (c) the documents support another party’s case; or (d) the documents adversely affect another party’s case.

30    I expect the process of preparation of evidence and for finalisation of discovery to continue immediately. Having said that, when it comes to the scope of the evidence, it seems to me that there are a large number of facts which may not be able to be “agreed” for the making of admissions pursuant to s 191 of the Evidence Act 1995 (Cth), but which are essentially non-contentious and will not be the subject of any contradictory evidence adduced in the proceedings. Hence, I suspect there are many factual issues which although not expressly the subject of admissions in a formal sense, upon close examination and sensible discussion, will just go away.

31    In many cases, I have ordered either unsupervised or supervised conferrals between counsel briefed in a proceeding for the purpose of identifying the factual and legal issues requiring determination, and of producing a statement of agreed facts in narrative form that contains formal admissions and also makes reference to other non‑contentious facts which will not be the subject of disputation. My experience in many cases is that the preparation of such a document has been a very worthwhile exercise. Given the complexity of this case, I consider that an experienced person, well-versed in industrial law, should act as a facilitator to assist in the process of working out what, in truth, are the matters the Court will be required to decide based upon contentious evidence.

32    I propose to make an order that the parties confer in person, commencing at 10:00am on 27 July 2026, and attempt to agree on and produce a “statement of agreed and non-contentious facts” (in narrative form), a new “factual and legal issues for determination” document, a list of common questions to be determined at the initial trial, and either agreed or competing draft orders for the completion of interlocutory steps taking this matter up to trial, including the completion of discovery.

33    I will consider these documents at a case management hearing on 31 July 2026. The parties should expect an extensive hearing, during which I will resolve all outstanding matters and make orders that will ensure the proceedings do not require further intervention until the commencement of the initial trial.

34    I direct the applicants to send to my chambers by 5:00pm on 29 April 2026 a minute of order which identifies with precision the scope of the initial trial (noting that the common questions to be determined will be those as specified in an order made on 31 July 2026), orders the commencement and conduct of the conferral, and lists the proceeding for a case management hearing at a time to be fixed on 31 July 2026. I will make orders accordingly.

Associate:

Dated: 4 May 2026

SCHEDULE OF PARTIES