FEDERAL COURT OF AUSTRALIA

Gall v Domino’s Pizza Enterprises Limited (No 4) [2026] FCA 967

REASONS FOR JUDGMENT

MURPHY J:

1.    INTRODUCTION

1    At all material times, the respondent to this proceeding, Domino’s Pizza Enterprises Limited (Domino’s), operated a fast food business in Australia from stores trading as Domino’s Pizza (Domino’s Stores). Some of the stores were operated by third parties (franchise operators) in assigned territories pursuant to the terms of sub-franchise agreements (as I have defined below) with Domino’s (Franchise Stores) and others were operated by Domino’s itself (Corporate Stores). The applicant, Mr Riley Gall, was employed as a casual Delivery Driver by two successive franchise operators of the Franchise Store at North Caboolture, Queensland, from October 2015 when he was 17 years old and still in high school through to March 2018 while he studied at university.

2    The applicant brought this proceeding as a class action under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on his own behalf and on behalf of all persons who, at any time between 24 June 2013 and 23 January 2018 (the Relevant Period), were employed as Delivery Drivers or In-Store Workers by a franchise operator of Domino’s, and were covered by the Fast Food Industry Award 2010 (the Award) but were not paid the rates of pay nor afforded the terms and conditions of employment in accordance with the Award (group members).

3    The proceeding is novel in that the applicant and group members brought claims grounded in alleged underpayment of Award entitlements but did so against Domino’s rather than against their employers, the franchise operators, and claimed misleading or deceptive conduct under s 18 of the Australian Consumer Law (ACL) rather than under the Fair Work Act 2009 (Cth) (FW Act). But the appearance of novelty fades when it is understood that it is claimed that through documents, workplace training, a centralised payroll system, pay calculation tools, compliance and audit activities and provision of payroll services under which Domino’s calculated the wages for those franchise operators who took up that service, Domino’s represented to franchise operators during the Relevant Period that the applicable minimum rates of pay and terms and conditions of employment for both Delivery Drivers and In-Store Workers at Franchise Stores were those contained in a number of certified agreements made under the Workplace Relations Act 1996 (Cth) (WR Act) and the FW Act (defined as the Agreements), when the alleged true position was that the Award applied. It is further alleged that, in reliance on those representations, franchise operators provided Delivery Drivers and In-Store Workers the rates of pay and terms and conditions of employment under the Agreements, which were less than those applicable under the Award, and that the applicant and group members thereby suffered loss and damage pursuant to s 236 of the ACL.

4    In short, the applicant’s case proceeded on the footing that Domino’s was the source of the pleaded contravening conduct, that franchise operators received and acted upon the impugned representations in operating their Franchise Stores, and that Delivery Drivers and In-Store Workers employed in those stores thereby suffered compensable loss under the ACL.

5    The applicant advanced the case in two principal ways:

(a)    The applicant’s primary case was that, by Domino’s provision of four categories of documents to franchise operators and prospective franchise operators during the Relevant Period, and by engaging in and providing what the Second Further Amended Statement of Claim (2FASOC) defined as the “Compliance and Audit Activities” and the “Payroll Services”, Domino’s made representations of fact broadly to the effect that the Agreements applied to all Delivery Drivers and In-Store Workers employed in Domino’s Stores and supplied the minimum rates and conditions with which franchise operators were required to comply.

(b)    The applicant’s alternative case (very much put as a secondary alternative) was that the representations conveyed by Domino’s were representations of opinion to the effect that the Agreements applied to all Delivery Drivers and In-Store Workers and supplied the minimum rates and conditions, and carried an implied representation that Domino’s had reasonable grounds for that opinion, when in fact, Domino’s did not have reasonable grounds for that opinion.

6    The hearing was a pitched battle at many levels, including that:

(a)    Domino’s denied that it was open to the applicant to bring a claim for damages under the ACL because such claims are based in an underpayment of award entitlements. It submitted that the FW Act is an exclusive code in relation to claims for underpayment of award entitlements and proceedings under that Act are the only available avenue for recovery of any such loss or damage (the FW Act Code Contention).

(b)    Domino’s denied that its impugned conduct was “in trade or commerce”, and said therefore s 18 of the ACL did not apply.

(c)    Domino’s denied that its conduct conveyed any of the alleged representations of fact. If its conduct is found to have conveyed one or more of the alleged representations, Domino’s said they could only be representations of opinion.

(d)    If they were representations of opinion, Domino’s said that they did not carry an implied representation that it had reasonable grounds for that opinion. If they were representations of opinion with an implied representation that Domino’s had reasonable grounds, Domino’s said that the applicant did not establish that Domino’s lacked reasonable grounds for that opinion. Further, Domino’s did have reasonable grounds for its opinion.

(e)    If the alleged representations of fact or opinion are found to have been conveyed by Domino’s conduct, Domino’s submitted that, as a matter of statutory construction of the authorising legislation, the extended coverage clause in the 2005 Agreement (as later defined) was valid, which meant that the true industrial position was that it and not the Award covered the terms and conditions of Delivery Drivers and In-Store Workers employed by franchise operators during the Relevant Period.

(f)    Domino’s submitted that, if new franchise operators that opened a Greenfields Store/s (as later defined) before 26 March 2006 were not bound by the 2005 Agreement through the Extended Coverage Clause, the true industrial position was that they were bound by the Agreements by reason of their being the successor, transmittee or assignee of part of Domino’s business through the transmission of business or transfer of business provisions of the relevant industrial relations legislation.

(g)    If, as a matter of statutory construction, the extended coverage clause in the 2005 Agreement did not operate according to its terms, and the true industrial position was therefore that the Agreement did not cover the terms and conditions of Delivery Drivers and In-Store Workers employed by franchise operators during the Relevant Period, Domino’s submitted that the 2005 Agreement must be treated as having had full force and effect throughout the Relevant Period. It argued that was so because, during that period, the 2005 Agreement had been certified by the Australian Industrial Relations Commission (AIRC or Commission), there had been no challenge (or decision) as to its validity, and the parties and the Fair Work Ombudsman (FWO) and its predecessor the Workplace Ombudsman (WO) had treated the Agreement as operating according to its terms.

(h)    If, as a matter of statutory construction, the extended coverage clause in the 2005 Agreement did not operate according to its terms, and if that Agreement was not to be treated as having had full force and effect during the Relevant Period, Domino’s submitted that its conduct in representing that the 2005 Agreement applied cannot now be found to have been misleading or deceptive because throughout that period the Agreement had been certified by the Commission, there had been no challenge (nor decision) as to its validity, and all parties and the FWO and WO treated the agreement as operating according to its terms.

(i)    If Domino’s is found to have engaged in misleading or deceptive conduct, Domino’s denied that the applicant adduced sufficient evidence to establish causation.

(j)    If the applicant established causation, Domino’s denied that the applicant adduced sufficient evidence to establish loss or damage under s 236 of the ACL.

(k)    If the applicant established causation, Domino’s denied that the applicant and group members had suffered loss because they have “unimpaired rights” to bring proceedings under the FW Act against the franchise operators for any underpayment of Award entitlements they have suffered. Domino’s submitted that their entitlements under the Award are a “statutory debt” owed by the relevant franchise operators, and they have therefore suffered no damage to their economic interests and are not entitled to damages under s 236 of the ACL (the No Damage Contention).

7    At its core, the proceeding required the determination of what was likely to have been conveyed to franchise operators by Domino’s conduct; whether Domino’s impugned conduct was conduct “in trade or commerce”; if Domino’s conduct conveyed the alleged representations of fact; if Domino’s conduct conveyed the alleged representations of opinion with an implied representation of a reasonable basis for that opinion and whether there existed a reasonable basis for Domino’s to hold such an opinion; what the true industrial position was in relation to whether the Agreements or the Award applied to the employment of the applicant and group members in Franchise Stores during the Relevant Period; whether it is appropriate to characterise Domino’s conduct as misleading or deceptive and, if so, whether the applicant and group members have suffered causally connected loss.

8    By pre-trial case management orders, the Court directed that the initial trial would determine the applicant’s individual claim, including quantum, and would answer specified common questions as agreed between the parties or in the absence of agreement as determined by the Court. The parties put forward 35 common questions (and many more sub-questions) for decision in the initial trial (the Common Questions). Certain matters, including the identification of all Franchise Stores where the Award was alleged to apply (Award Stores) and the identification of all Delivery Drivers and In-Store Workers employed in those stores during the Relevant Period (Award Workers), and issues relating to aggregate damages were not fixed for determination in the initial trial.

9    Through the trial the issues were refined in a way which is important for understanding the structure of these reasons. By direction, the parties’ written submissions were organised by reference to the agreed Common Questions through an agreed template of submissions, and the parties joined issue by reference to those questions. There were, however, substantial overlaps between some of the Common Questions which led to some prolixity in the submissions, particularly those of Domino’s.

10    Determining whether Domino’s conduct contravened s 18 of the ACL requires a staged approach, and omitting or conflating the stages is apt to confuse the analysis: Mitsubishi Motors Australia v Begovic [2022] VSCA 155; 403 ALR 558 at [55]-[61] (Emerton P, McLeish and Macaulay JJA). For ease of analysis and to minimise the level of repetition that arises from the Common Questions, I have largely structured the reasons around the necessary stages of inquiry, answering the Common Questions along the way.

11    For the reasons I explain, I am satisfied that it is more likely than not that:

(a)    Domino’s engaged in the impugned conduct.

(b)    Domino’s relevant conduct was “in trade or commerce”.

(c)    Domino’s conduct conveyed the alleged representations of fact, which were broadly to the effect that the Agreements governed the terms and conditions of employment of all Delivery Drivers and In-Store Workers employed by franchise operators during the Relevant Period and that the rates of pay provided for in the Agreements (as affected by the Agreed Base Rate Increases and/or the Deemed Base Rates (defined below)) were the ones which it was lawful for Dominoids (defined below) and MC Pizza (defined below) (as franchise operators) to pay Delivery Drivers and In-Store Workers in their employ.

(d)    In the alternative, Domino’s conduct conveyed the alleged representations that Domino’s held an opinion broadly to the same effect and that Domino’s had reasonable grounds for that opinion. The applicant did not, though, establish that Domino’s lacked reasonable grounds for its opinion that the Agreements governed the rates of pay and terms and conditions of employment for all Delivery Drivers and In-Store Workers employed by franchise operators during the Relevant Period.

(e)    During the Relevant Period, as a matter of statutory construction of the authorising statute, the extended coverage clause in the 2005 Agreement was invalid to the extent of its inconsistency with the statute, and required to be read down to that extent. As a result, the true industrial position was that the Award rather than the Agreements applied to the employment of the applicant and a substantial cohort of Delivery Drivers and In-Store Workers employed by franchise operators during the Relevant Period.

(f)    Domino’s conduct which conveyed the alleged representations of fact was therefore misleading or deceptive conduct or conduct that was likely to mislead or deceive in contravention of s 18 of the ACL.

(g)    The applicant established causation in respect of his individual case, and the applicant established one type of the loss that he claimed. I do not accept Domino’s No Damage Contention nor its FW Act Code Contention.

It is likely that similarly situated group members employed in Award Stores also suffered causally connected loss, but the scope of the initial trial only allows determination of the applicant’s loss. Deciding the claims for loss and damage by group members, whether individually or in aggregate, will require a further hearing.

2.    THE EVIDENCE

12    The pleadings are lengthy and complex, running to 198 pages, and the parties’ closing submissions ran to 836 pages.

13    The proceeding was, in very large measure, a documentary case and the documentary evidence is voluminous. At the commencement of the trial, the parties produced an agreed electronic Court Book with a hyperlinked electronic index, and at the end of the trial the parties produced an agreed electronic index of additional documents. At the commencement of the trial, the parties also produced an agreed hardcopy of the Court Book comprising 25 lever arch binders, and hard copies of some of the additional documents were added into that during the course of the trial.

14    At the commencement of the trial, I informed the parties that the Court would not treat the documents in the Court Book as having been tendered. Instead, only those documents to which the Court was expressly taken, to which the parties expressly referred in opening or closing submissions, or which were explicitly tendered would be treated as having been admitted into evidence. That is, the Court Book was to be treated as a repository of the documents from which the documentary evidence would be adduced.

15    The great bulk of the documentary evidence consisted of:

(a)    disclosure documents that Domino’s provided to prospective franchise operators and to franchise operators proposing to renew or extend the term or scope of a sub-franchise agreement, including the sub-franchise agreements themselves; and

(b)    training and policy documents that Domino’s provided to franchise operators during the life of their sub-franchise agreements, including documents relating to the industrial instruments applicable to franchise operators’ employees; pay rate notices Domino’s sent to franchise operators setting out the applicable pay rates for their employees; documents Domino’s provided to franchise operators regarding the payroll systems and bookkeeping service that Domino’s made available to franchise operators; and information that became available to franchise operators through Domino’s Compliance and Audit Activities and provision of the Payroll Services.

16    The applicant relied on the following evidence:

(a)    documents from the Court Book;

(b)    the affidavit of Mr Gall affirmed 9 February 2022 and his oral testimony. He was cross-examined;

(c)    the affidavit of Ms Natasha Jane Griffin affirmed 9 March 2022. She was not cross-examined;

(d)    the affidavit of James Gibson affirmed 7 February 2022. He was not cross-examined;

(e)    four expert reports by Ms Dawna Kathleen Wright in relation to loss, dated 28 January 2022, 19 July 2022, 15 August 2022, and 4 October 2022; and

(f)    the joint report of Ms Wright and Domino’s loss expert, Mr Michael Potter, dated 1 November 2022 (the Joint Experts’ Report).

17    Domino’s relied on the following evidence:

(g)    documents from the Court Book;

(h)    two expert reports by Mr Potter in relation to loss, dated 16 September 2022 and 7 October 2022, and an affidavit of Mr Potter dated 4 November 2022, which concerned his qualifications and experience; and

(i)    the Joint Experts’ Report.

3.    THE PREPARATION OF THESE REASONS

18    Given the delay in the provision of these reasons, it is appropriate that I provide some explanation. I do so not in an attempt to justify the delay, but to explain that I do not consider that it reduced my ability to make the factual findings that I have. I again apologise to the parties for my delay.

19    I worked very hard through the years the parties waited for these reasons. I fell behind because I listed three major trials (two class actions and one native title) one after the other (this being one of them), with no judgment writing time between them. I thought at least one of them would settle but none did. Having now written the judgements from those three trials, they comprise 828,331 words, taking up 2,159 pages. I estimate that I would have needed to have been taken off docket for well over 12 months to accommodate the necessary writing time. I do not know how that could have been done.

20    My already busy docket of listings meant I never recovered from that listing mistake. I do not blame Court administration for that outcome. I should have requested relief, and I did not. There are also quicker ways to write than mine, but I always wanted to be satisfied, particularly in big cases like this, that the judgment was the best that I could do.

21    The delay caused a deal of inefficiency as I was required to go back over all of the evidence. But I reread the transcript, re-read the opening and closing submissions, re-read the documents referred to, and re-read my notes of the evidence made each day of the trial and after Court on the hard copy documents in the Court Book and on pages interposed into those hard copy documents.

22    Although inefficient, the delay did not reduce my ability to make the factual findings that I have. Nothing in these reasons depends upon my impressions of witnesses or my recall. This was a documentary case, not a case involving contested lay evidence. The only lay witness was the applicant and his evidence was largely uncontentious. I have set out the evidence in detail in part because it seems likely that this matter will go on appeal. I wanted to be sure that all of the relevant evidence is before the Full Court.

23    The difficult issues in the case are all legal questions, and I am either right or wrong in my findings in relation to those. The Full Court will be in as good a position as I (indeed a better position) to decide those questions if the matter does go on appeal.

4.    THE FACTS

24    The following identifies those matters which bear upon the issues to be determined, including the development of Domino’s franchise system, the industrial framework on which it relied, the dissemination of documents and systems across the network, and the conduct said to have conveyed the pleaded representations.

4.1    Domino’s business

25    These matters are uncontentious and I have largely drawn them from Domino’s submissions.

26    Domino’s is a pizza home-delivery and take-out business from which customers may buy ready-to-eat food including, but not limited to, pizza, beverages and associated products. The business originated in the United States where Domino’s Pizza Inc (the Master Franchisor) developed a chain of stores known as “Domino’s Pizza Stores”. Those stores specialised in the sale of pizza and featured carry-out and delivery services, operating with a uniform business format comprising specially designed equipment, recipes, methods, procedures and designs (the Domino’s System). The Master Franchisor owned, used, promoted and licensed certain trade and business names, trade and service marks and commercial symbols in connection with the operation of Domino’s Stores (the Domino’s Marks).

27    Domino’s Pizza came to Australia in May 1993 when the Master Franchisor (through its licensee, Domino’s Pizza International Inc) executed a Master Franchise Agreement with Domino’s Home Delivery Pty Ltd which granted Domino’s Home Delivery the exclusive right to develop and operate Domino’s Stores and to use the Domino’s System and the Domino’s Marks throughout metropolitan Sydney. Domino’s Home Delivery was a subsidiary of Competitive Foods Australia Ltd (CFA), the national operators of the “Hungry Jack’s” franchise.

28    In 1993, the Master Franchisor granted a licence for Domino’s Home Delivery to operate across the whole of Australia. The Master Franchisor also agreed to the amalgamation of Domino’s Home Delivery with Silvio’s Dial-A-Pizza Pty Ltd, an existing chain of pizza stores operating around Australia that was also owned by CFA, which stores were to be converted into Domino’s Stores in 1995.

29    In 1998, Domino’s Home Delivery assigned all of its rights under the Master Franchise Agreement to Silvio’s Dial-A-Pizza, which changed its name in 1999 to Domino’s Pizza Australia Pty Ltd. In 2005, Domino’s Pizza Australia became a public company, and following an expansion into New Zealand was renamed Domino’s Pizza Australia New Zealand Limited. Then, in 2006, following an expansion into Europe, the company was renamed Domino’s Pizza Enterprises Limited - which name the respondent still holds today.

30    Under the Master Franchise Agreement, Domino’s has the exclusive right to develop and operate Domino’s Stores and to use the Domino’s System and the Domino’s Marks throughout Australia. The Master Franchise Agreement requires Domino’s to use its best endeavours to develop, promote and grow the Domino’s System and the Domino’s Marks within the licensed territory and to diligently recruit suitable franchise operators in that territory. Domino’s has the right to own and operate its own Corporate Stores, and it also has the power to grant a third party the right to open, own and operate a Domino’s Store in Australia, but only where the third party executes a standard form of sub-franchise agreement approved by Domino’s.

31    Domino’s submitted, and I accept, that the essence of the Domino’s System is the adherence by franchise operators to the standards and policies of the Master Franchisor providing for the uniform operation of all Domino’s Stores including, but not limited to: serving designated food and beverage products; the use of only prescribed equipment and building layout and designs; and strict adherence to designated food and beverage specifications and prescribed standards of quality, service and cleanliness (Domino’s Specifications).

4.2    The sub-franchise agreements

32    Adherence to the Domino’s System by franchise operators was centrally achieved through standard form sub-franchise agreements which required uniformity of operation in a number of different ways. Domino’s accepted that, although small changes were made to the sub-franchise agreements, the terms of those agreements remained materially unchanged over the years and, within their own territories, required each franchise operator operating a Domino’s Store to do so using the Domino’s System and the Domino’s Marks and in accordance with the Domino’s Specifications.

33    At all material times, franchise operators were:

(a)    granted a sub-franchise to operate a Domino’s Store under the Domino’s System in accordance with the Domino’s Specifications and a licence to use the Domino’s Marks in the operation of a Domino’s Store;

(b)    required to operate the store within the allocated territory for that store, with Domino’s agreeing not to operate or grant another store within a territory significantly overlapping the allocated territory (subject to limitations);

(c)    required to sell all pizza and beverage products and all take-away and delivery services that Domino’s authorised, and to not sell unauthorised products or services;

(d)    required to purchase the nominated product (defined to mean the product required to be used in the Domino’s System as nominated by Domino’s, including pizza ingredients, packaging and print material, beverage products and cooking materials, containers, uniforms, menus, and other supplies and materials used in the operation of the store) from Domino’s or an approved supplier;

(e)    required to ensure that all nominated product conformed to the specifications and quality standards of the Domino’s System as established by Domino’s;

(f)    required to comply with the Domino’s Specifications, including all specifications, standards and operating procedures and rules prescribed for the Domino’s Store relating to:

(i)    the function and appearance of the Domino’s Store premises and its equipment;

(ii)    dress and general appearance of employees;

(iii)    quality, taste, portion control, uniformity, and manner of preparation and sale, of all pizza and beverage products sold by the Domino’s Store and of all ingredients, supplies and materials used in the preparation, packaging and sale of these items;

(iv)    methods and procedures relating to receiving, preparing and delivering customer orders; and

(v)    advertising and promotion; and

(g)    required to conduct the franchise in accordance with the Operating Manual (defined to mean the operating manual that contains proprietary know-how, mandatory and suggested specifications, standards and operating procedures and rules as prescribed by Domino’s).

34    Importantly, the sub-franchise agreements provided that the franchise operator was responsible for employing a sufficient number of staff to effectively conduct the “Sub-Franchised Operation”. Unless there was some arrangement to the contrary, during the Relevant Period each franchise operator was the employer of fast food workers employed to work in the Franchise Store (or Stores) operated by that franchise operator.

35    Relevantly to these proceedings, the employees of the franchise operators fell into two main classifications: Delivery Drivers (being persons who delivered pizzas to consumers at their homes using a vehicle, including electric bikes and scooters) and In-Store Workers (being persons who performed duties in the store, such as taking orders, making pizza, and cleaning).

36    Separately, Domino’s was the employer of fast food workers employed in Corporate Stores.

4.3    Relevant industrial history

37    The existence and terms of the relevant industrial agreements and the Award are not contentious. It is not their terms, but their effect, which is in dispute. I have drawn the following from the parties’ submissions and the industrial instruments themselves.

4.3.1    The Shop, Distributive and Allied Employees’ Association (SDA)

38    Fast food workers employed by Domino’s in Corporate Stores or by franchise operators of Franchise Stores were at all material times represented by the Shop, Distributive and Allied Employees’ Association (SDA).

4.3.2    The 1999 Award and the 2003 WA Award

39    On 2 July 1999, the AIRC approved the Silvio’s Pizza (Delivery Drivers) Award 1995 by making the Domino’s Pizza Delivery Drivers Award 1999 (the 1999 Award). The 1999 Award bound Domino’s and the franchise operators listed in the Schedule to the Award and their employees who were employed as Delivery Drivers.

40    In November 2003, the AIRC varied the SDA Domino’s Dial-A-Pizza Interim Award 1996 by making the SDA Domino’s Dial A Pizza (WA) Award 2003 (the 2003 WA Award). The 2003 WA Award bound Domino’s and the franchise operators listed in the Schedule to the Award and their employees in Western Australia. A further award which ‘roped-in’ additional franchise operators and their employees was made in November 2005.

4.3.3    The Workplace Relations Act Agreements

41    Between 2001 and 2007, the following 26 agreements were certified by the AIRC, or lodged with the Office of the Employment Advocate, pursuant to the terms of the Workplace Relations Act 1996 (Cth) (which I have defined earlier as the WR Act) as in force from time to time. Those agreements, during their period of operation, contained the rates of pay and terms and conditions of employment required to be afforded to the Delivery Drivers and In-Store Workers employed to perform work in all Corporate Stores and some (on the applicant’s case) or all (on Domino’s case) Franchise Stores throughout Australia (the WR Agreements).

4.3.3.1    The 2001 Agreement

42    On 8 October 2001, the AIRC certified, in accordance with s 170LT of the WR Act, an agreement between the SDA and Domino’s titled SDA - Domino’s Pizza Agreement 2001, made pursuant to s 170LS of the WR Act (the 2001 Agreement).

43    The 2001 Agreement was binding on “Domino’s Pizza” and the SDA. It applied to all employees of “Domino’s Pizza” in all States and Territories of Australia under the classifications in the Agreement being “Retail Food Employees Grades I, II and III” and “Delivery Assistants” (described in this proceeding as In-Store Workers and Delivery Drivers). “Domino’s Pizza” was defined to mean Domino’s and the “franchisees of [Domino’s] listed in Schedule A”, which listed 55 franchise operators. “Domino’s Store” was defined to mean “an establishment which is operated by any one of the parties to this Agreement named in Schedule A hereof”; i.e., a store operated by one of the 55 listed franchise operators in Schedule A.

44    The 2001 Agreement prescribed minimum rates of pay and minimum hours per shift for employees, as well as minimum entitlements to overtime, meal breaks, and leave, although the rates of pay for employees in Western Australia and Queensland differed from the rates of pay for employees in other parts of Australia.

45    The 2001 Agreement did not contain any clause purporting to extend its coverage to future franchise operators or to franchise operators not named in Schedule A.

4.3.3.2    Twenty “Roping-In” WR Agreements

46    In the period from December 2001 to 2 April 2004, the AIRC approved a further 20 certified agreements (the Roping-In WR Agreements). With one exception, each of the Roping-In WR Agreements was made under Div 2 of Pt VIB of the WR Act.

47    The terms of these agreements were identical to each other and to the terms of the 2001 Agreement, save that “Domino’s Pizza” in these agreements was defined to mean the “franchisees of Domino’s Pizza Australia Pty Ltd listed in Schedule A” and did not include Domino’s. In turn, Schedule A to each of these agreements had one franchise operator listed, save for one agreement that had two franchise operators listed. Each of the named franchise operators in the Roping-In WR Agreements was additional to the franchise operators named in the 2001 Agreement. Although Domino’s appears to have signed each of these agreements as agent for the named parties, it was not itself a party to, or bound by, any of these 20 agreements. Each of the Roping-In WR Agreements remained in force until they were terminated on 1 November 2017.

48    None of the Roping-In WR Agreements contained a clause purporting to extend the coverage of the Agreement to franchise operators not named in the Schedule or to future franchise operators. The effect of the Roping-In WR Agreements was that those new franchise operators who had entered sub-franchise agreements with Domino’s, but were not parties to the 2001 Agreement, were brought within an enterprise agreement framework by the making and certification of further agreements binding them to the same terms and conditions as the 2001 Agreement.

4.3.3.3    The 2005 Agreement

49    In 2005, Domino’s and the SDA adopted a different approach to bringing new franchise operators within an enterprise agreement framework.

50    On 2 November 2005, the AIRC certified an agreement between Domino’s and the SDA titled SDA - Domino’s Pizza Agreement 2005 to operate from certification until 1 December 2005 (the 2005 Agreement). The 2005 Agreement was made under Div 3 and certified under Div 4 of Pt VIB of the WR Act, as in force on 2 November 2005 (the Pre-Reform WR Act).

51    In these reasons, a reference to the Pre-Reform WR Act is a reference to the Workplace Relations Act 1996 (Cth) prior to 27 March 2006, when the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Workchoices Amendments) was introduced. A reference to the Post-Reform WR Act is a reference to the Workplace Relations Act 1996 (Cth) from 27 March 2006 until 30 June 2009 when the WR Act was repealed.

52    Clause 4 of the 2005 Agreement provided:

INCIDENCE AND PARTIES BOUND

This Agreement shall be binding on Domino’s Pizza and the Shop Distributive and Allied Employees’ Association and shall apply to all employees of Domino’s Pizza in all States and Territories of Australia in the classifications in this Agreement whether members of the Union or not.

53    The relevant classifications in the 2005 Agreement were Retail Food Employees Grades I, II and III and Delivery Assistants. It is uncontentious that those classifications reflect the classifications described in this proceeding as In-Store Workers and Delivery Drivers. Save in the following two respects, the 2005 Agreement was in substantially the same terms as the 2001 Agreement and each of the Roping-In WR Agreements.

54    First, the 2005 Agreement contained updated wage rates.

55    Second, and critically in the present case, the 2005 Agreement contained cl 5.1 (the Extended Coverage Clause), which included an extended definition of Domino’s Pizza as the entity bound by the Agreement. It provided:

“Domino’s Pizza” or “the Company” or “the employer” means Domino’s Pizza Australia New Zealand Limited and those franchisees that are listed in Appendix “A” and those franchisees who, through entering into a franchise agreement are a successor, assignee or transmittee of part of the business of Domino’s Pizza Australia Pty Ltd.

(Emphasis added.)

56    On the terms of cl 5.1, the employer entities bound by the 2005 Agreement were not confined to Domino’s and the 24 franchise operators listed in Appendix “A”. Rather, the clause extended (or at least purported to extend) the application of the 2005 Agreement to persons who later became franchise operators by executing a sub-franchise agreement (and who perhaps did not even exist at the time the 2005 Agreement was made), and thus their employees. I should note that although the parties in the certification hearing referred to there being 28 named franchise operators in Appendix “A” there are only 24 persons named on that list.

57    The 2005 Agreement included cl 50, which provided as follows:

SUPERSESSION OF AWARD

This Agreement shall apply to the exclusion of all other Awards or Agreements.

58    The parties did not make submissions on the operation of this provision. On its face it meant that the 2005 Agreement superseded or replaced the 2001 Agreement and operated to the exclusion of any applicable Award (to the extent that it purported to bind the same franchise operators).

4.3.3.4    Four “Greenfields” WR Agreements between 2006 and 2007

59    Between 28 July 2006 and 26 February 2007, four “employer greenfields agreements” (as defined in s 330 of the WR Act) were lodged with the Office of the Employment Advocate under the WR Act (the Greenfields Agreements). These agreements were made after the Workchoices Amendments which came into effect on 27 March 2006. Each agreement applied only to a single named franchise operator, and except for the Extended Coverage Clause, the agreements were in materially similar terms to the 2005 Agreement, including as to the classifications of employees that were bound by the agreements. The bargaining agent for each Greenfields Agreement was Mr Muir, Domino’s industrial relations agent. They were not agreements made with the SDA.

60    The effect of the Greenfields Agreements was that the four new franchise operators who had entered sub-franchise agreements with Domino’s were brought within an enterprise agreement framework by the making and certification of agreements that bound those new franchise operators to the same terms and conditions as the 2005 Agreement. The roping-in of the franchise operators named in the Greenfields Agreements did not depend upon the Extended Coverage Clause in the 2005 Agreement.

4.3.4    The Fair Work Act Agreements

61    In 2009, six enterprise agreements were approved under the FW Act which contained, during their period of operation, the rates of pay and terms and conditions of employment required to be afforded to In-Store Workers employed by Domino’s in Corporate Stores and by the franchise operators whom those agreements covered and applied to (the FW Agreements) (together with the WR Agreements, the Agreements, which I have defined earlier). They were as follows.

4.3.4.1    The 2009 Agreement

62    On 13 November 2009, Fair Work Australia made a “single interest employer authorisation” decision (SIEA) under s 249 of the FW Act, which related to Domino’s and 156 franchise operators: Domino’s Pizza Enterprises Limited [2009] FWA 493. This SIEA permitted Domino’s and those 156 franchise operators to seek certification of an agreement that would bind them all. Section 250(1)(a) of the FW Act required that the SIEA specify the employers “that will be covered by the agreement”.

63    On 24 December 2009, the SDA and Domino’s lodged a proposed enterprise agreement with the Fair Work Commission (FWC) seeking approval of that agreement pursuant to the SIEA. On 25 May 2010, Commissioner Ashbury of the FWC approved for a nominal term of three years the SDA - Domino’s Pizza Agreement 2009 (the 2009 Agreement), doing so pursuant to s 185 of the FW Act: see Domino’s Pizza Enterprises Limited re SDA - Domino’s Pizza Agreement 2009 [2010] FWAA 3943.

64    This agreement applied to In-Store Workers employed by Domino’s and to the 156 named franchise operators listed in Schedule “A”. It did not regulate the terms and conditions of employment of Delivery Drivers.

4.3.4.2    Five “Roping-In” FW Agreements

65    In the period around the 2009 Agreement, the FWC approved five enterprise agreements with single named franchise operators, doing so pursuant to s 185 of the FW Act (the Roping-In FW Agreements). In each case, the agreement was in identical terms to the 2009 Agreement but related to a single named franchise operator. Each was certified on the basis of the SIEA obtained in November 2009. As with the 2009 Agreement, the Roping-In FW Agreements were confined to In-Store Workers and did not regulate the terms and conditions of employment of Delivery Drivers.

4.3.5    Agreed pay rate increases

66    In the period between 2006 and 2017, Domino’s made a number of agreements with the SDA, pursuant to which Domino’s agreed to increase the rates of pay for Delivery Drivers and In-Store Workers to be paid by Domino’s at Corporate Stores and franchise operators at Franchise Stores (the Agreed Base Rate Increases).

4.3.6    The Fast Food Industry Award 2010

67    On 1 January 2010, the Fast Food Industry Award 2010, a “modern award” under the FW Act, came into effect by order of the FWC. It covered employers throughout Australia in the fast food industry and their employees in the classifications prescribed in cl 16 and listed in Schedule “B”. The listed classifications included “Fast Food Employee Level 1” defined as:

An employee engaged in the preparation, the receipt of orders, cooking, sale, serving or delivery of meals, snacks and/or beverages which are sold to the public primarily to take away or in food courts in shopping centres.

It is uncontentious that that classification covered In-Store Workers and Delivery Drivers.

68    Clause 4.3, though, provided that the Award did:

…not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

As a result, if the 2001, 2005 or 2009 Agreements or the various Roping In agreements applied to the employment of an In-Store Worker or Delivery Driver employed by a franchise operator, then the terms and conditions of the Award did not apply to them.

69    During the Relevant Period, the Award provided rates of pay and terms and conditions of employment which were, depending to an extent on the employee’s particular circumstances:

(a)    more beneficial with respect to Delivery Drivers than those provided by the WR Agreements, including by reason that the Award provided for:

(i)    a 25% casual loading;

(ii)    evening work penalties;

(iii)    weekend penalties;

(iv)    public holiday penalties;

(v)    a meal allowance;

(vi)    a special laundry allowance;

(vii)    an excess travelling cost payment;

(viii)    a travelling time reimbursement payment;

(ix)    a different kilometre-based delivery allowance; and

(x)    minimum 3-hour shifts for casual employees; and

(b)    more beneficial with respect to In-Store Workers than those provided by the FW Agreements, including by reason that the Award provided for:

(i)    a 25% casual loading;

(ii)    evening work penalties;

(iii)    weekend penalties;

(iv)    public holiday penalties;

(v)    a meal allowance;

(vi)    a special laundry allowance;

(vii)    an excess travelling cost payment;

(viii)    a travelling time reimbursement payment; and

(ix)    minimum 3-hour shifts for casual employees.

4.3.7    The sequence of industrial instruments

70    Relevantly, the sequence of industrial instruments between 2001 and 2010 was:

(a)    the 2001 Agreement under the WR Act, which expressly bound Domino’s and 55 named franchise operators and covered Delivery Drivers and In-Store Workers;

(b)    20 Roping-In WR Agreements, which mirrored the terms and conditions of the 2001 Agreement and bound additional named franchise operators;

(c)    the 2005 Agreement under the WR Act which covered Delivery Drivers and In-Store Workers and bound Domino’s and 24 named franchise operators listed in Appendix “A”, and in which the Extended Coverage Clause also purported to bind unnamed future franchise operators;

(d)    the 2009 Agreement under the FW Act, which bound Domino’s and 156 named franchise operators and relevantly covered only In-Store Workers (and not Delivery Drivers);

(e)    five further Roping-In FW Agreements, which mirrored the terms and conditions of the 2009 Agreement and bound an additional five named franchise operators; and

(f)    the Award was then made, which commenced on 1 January 2010. It covered all employers in the fast food industry in Australia and their employees in the listed classifications including, relevantly, In-Store Workers and Delivery Drivers. The Award did not, though, cover fast food employees who were already covered by one of the Agreements.

71    There is no dispute between the parties as to the efficacy of:

(a)    the 2001 Agreement, or the 20 Roping-In WR Agreements that followed it; or

(b)    the 2009 Agreement, or the five Roping-In FW Agreements that followed it.

It is common ground that at all material times those Agreements were binding on Domino’s and the franchise operators named in the schedule annexed thereto.

72    The dispute centres on (but is not limited to) the validity of the Extended Coverage Clause in the 2005 Agreement. The applicant contended that that clause is inconsistent with the Pre-Reform WR Act and is invalid to the extent of its inconsistency. On the applicant’s argument, the 2005 Agreement therefore only covered Delivery Drivers and In-Store Workers employed by Domino’s in Corporate Stores and the 24 franchise operators listed in Appendix “A” plus any genuine successors, assignees or transmittees of those franchise operators’ businesses, but not those who Domino’s argued were successors, assignees or transmittees of part of Domino’s business by reason only of their having entered into a sub-franchise agreement post-certification of the Agreement.

73    It should also be noted that there was some inconsistency in various Agreements as to how the franchise operators in Appendix “A” were referred to and presented. While the text of the Agreement would refer to franchise operators listed in Appendix “A”, said list would sometimes be presented as Annexure “A” or Schedule “A”. For consistency and comprehensibility, I will defer to primarily using Appendix “A” in reference to such lists.

74    The applicant contended that the true industrial position is that the Award, and not the 2005 Agreement (nor the 2001 or 2009 Agreements or the Roping In agreements) applied to a substantial cohort of the Franchise Stores which employed Delivery Drivers and In-Store Workers during the Relevant Period.

75    The industrial history outlined above demonstrates that the 2005 Agreement formed part of an evolving framework of agreements made over time, including agreements binding named employers and agreements made under different statutory regimes. That framework provides the industrial context within which Domino’s dissemination of pay-related materials, training materials and system-based information is to be understood.

4.4    Expansion of the franchise network

76    Throughout the Relevant Period, Domino’s continued to expand its franchise network across multiple stores in various States and Territories, with additional Franchise Stores being established and operated by new or existing franchise operators. Domino’s Amended Answers to Interrogatories dated 14 November 2022 (answers to interrogatories) show that as at 30 June 2013 there were 421 Franchise Stores, and as at 28 January 2018 there were 621 such stores. The evidence does not show how many of the new Franchise Stores were taken up by existing franchise operators who were already named in Appendix “A” to one or another of the Agreements.

77    It is uncontentious that the new franchise operators entered into sub-franchise agreements in substantially the same form as the existing franchise operators, and they were thereby brought within the existing operational framework that had previously been developed and implemented across Domino’s franchise network.

78    As I later explain in more detail, the entry of franchise operators into the Domino’s network occurred after Domino’s had provided documents and information to prospective franchise operators which were in standard or generic form, including sub-franchise agreements and franchise information and the documents required to be provided under the Trade Practices (Industry Codes - Franchising) Regulations 1998 (pre-2015) and the Franchising Code of Conduct in the Competition and Consumer (Industry Codes - Franchising) Regulations 2014 (Cth) sch 1 (post-2015) (together, the Disclosure Documents). The documents and information provided were not bespoke to individual prospective franchise operators but were materially the same documents and information disseminated to all prospective franchise operators.

79    As new franchise operators entered Domino’s franchise network and commenced operating a Franchise Store, they were required to adopt and use Domino’s established systems and processes. Those systems included information and training systems, store management systems and payroll-related systems and services that formed part of the ordinary operation of Franchise Stores. The use of those systems was not confined to particular Franchise Stores but was a feature of the network as a whole. One of the payroll-related services, the Domino’s Bookkeeping Service (DBS), was a service through which Domino’s would perform pay calculations and payroll functions for and on behalf of the franchise operator. Throughout the Relevant Period, DBS was available to all franchise operators, but its use was not mandatory for existing operators, and the take-up rate of DBS varied over time. From September 2012 to December 2014, use of DBS was mandatory for all new franchise operators for a period of 24 months. From 1 January 2015 to the end of the Relevant Period, new franchise operators were required to use DBS permanently.

80    As a result of Domino’s approach, as the network expanded franchise operators did not develop materially independent or divergent systems at a Franchise Store level. Rather, they operated within a framework in which materially the same information was provided by Domino’s to franchise operators and the same systems and processes were used across different Franchise Stores. Franchise operators entering the network were required to operate within that system and to use the same information, systems and processes in the conduct of their businesses. In this way, the expansion of the Domino’s franchise network involved the replication of Franchise Stores across an increasing number of outlets, which were run by different franchise operators but were centrally controlled.

81    The operation of that materially uniform system was not limited to the initial establishment of a new franchised Domino’s Store or to the takeover of an established Domino’s Store by a new franchise operator. It continued throughout the life of the relationship between Domino’s and the franchise operator through the provision of standardised documents, training materials, and payroll-related systems and services.

82    This provides the context in which the content and effect of the information, documents and processes provided to franchise operators is to be assessed, including whether Domino’s information, systems and processes conveyed the alleged representations to prospective and existing franchise operators.

4.5    The North Caboolture Store

83    Dominoids Pty Ltd purchased a Domino’s Store business at North Caboolture, Queensland (the North Caboolture Store) from Domino’s pursuant to a Business Sale and Purchase Agreement dated 18 December 2012 and entered into a sub-franchise agreement with Domino’s on the same date, under which it was licenced to operate the North Caboolture Store. The sub-franchise agreement was signed by Ms Belinda Smith as Dominoids’ director and as “owner” (as defined in the sub-franchise agreement). Dominoids operated the North Caboolture Store from then until 28 August 2016.

84    Ms Smith was an experienced Domino’s franchisee. She operated four Franchise Stores at the following locations for the periods specified below:

(a)    the Beerwah Store, from 29 June 2012 until 28 June 2014 through Sturn Enterprises Pty Ltd, and from 29 June 2014 until 4 December 2017 through Dominoids;

(b)    the North Caboolture Store, from around 17 December 2012 to 28 August 2016 through Dominoids;

(c)    the Moranbah Store, from 25 March 2013 through the Relevant Period through Sturn Enterprises; and

(d)    the Strathpine Store, from 26 May 2014 to 21 June 2018 through Dominoids.

85    On 28 August 2016, Dominoids sold the North Caboolture Store business back to Domino’s pursuant to a Business Sale and Purchase Agreement dated 28 August 2016. Domino’s sub-franchise agreement with Dominoids in relation to that store terminated as a consequence of the sale.

86    On 29 August 2016, Domino’s entered into a Store Asset Rental Management Deed with MC Pizza Pty Ltd, pursuant to which MC Pizza commenced operating the North Caboolture Store business from that date. It operated the store under that agreement until 10 October 2016 when Domino’s sold the North Caboolture Store business to MC Pizza pursuant to a Business Sale and Purchase Agreement dated that day. On the same date, MC Pizza also entered into a sub-franchise agreement with Domino’s which licensed it to operate the North Caboolture Store. The agreement was signed by Mr Mark Glynn and Mr Casey Benson as directors and as “owners” (as defined). MC Pizza operated the North Caboolture Store as the franchise operator from 10 October 2016 until the end of the Relevant Period.

87    Mr Glynn and Mr Benson were also experienced Domino’s franchise operators. They operated three Franchise Stores at the following locations from the dates below during the Relevant Period:

(a)    the Burpengary Store, from 27 June 2008;

(b)    the Morayfield Store, from 10 October 2011; and

(c)    the North Caboolture Store, from 29 August 2016.

Mr Glynn also held various senior positions within Domino’s over the Relevant Period.

4.6    The lay evidence

88    The applicant gave evidence and adduced evidence from two lay witnesses in relation to their work at different Franchise Stores, as to the uniformity of procedures and systems across Franchise Stores, and as to the information, training and payroll systems in use at those stores.

4.6.1    Mr Gall

89    The applicant gave evidence and was cross-examined. He deposed that he was employed as a Delivery Driver at the North Caboolture Store from 18 October 2015 to 18 March 2018, during which period the franchise operators were:

(a)    Dominoids in the period from 18 October 2015 to 28 August 2016; and

(b)    MC Pizza in the period from 29 August 2016 to 18 March 2018.

90    He said that he worked primarily in the classification of Delivery Driver but he also undertook in-store work when there were fewer deliveries required to be performed. He said that when he was not performing delivery duties his work included washing up, maintenance, preparing sides, filling the drinks fridge, preparing pizza toppings, cleaning duties and taking orders. Delivery work occupied about 30% of his time when he worked on weekdays, and about 50-60% of his time on weekday evenings. On weekends during the day, delivery duties occupied about 30-40% of his time, but on evenings including Friday nights it occupied as much as 70% of his time.

91    The applicant deposed that the North Caboolture Store used several of Domino’s information and training systems, and that he interacted with those systems in the following ways.

(a)    A system named PULSE, which he used to clock on and clock off and to receive pizza delivery orders assigned to him. He noted that PULSE recorded shift time, attendance and delivery time data, but other evidence shows it had greater functionality than that.

(b)    An online training and information system named DOTTI. The applicant deposed that this system contained training modules, instructional files, and policy and entitlement documents for employees. He said that he accessed DOTTI from home, using his personal computer. He said that he was told by the Domino’s Store Managers that it was mandatory to complete the training and that, to complete a training module, it was necessary to read through a PowerPoint document, and then perform a multiple-choice test. Importantly, he testified that it was possible to read information and training modules on DOTTI either in the web browser (without a requirement to download it), or by downloading the document. He was not challenged on that aspect of his evidence.

(c)    An online electronic rostering system named TANDA. He said that his only interaction with that system was that he received emails on TANDA setting out his weekly roster. Other evidence shows that it had much greater functionality than that.

(d)    GPS Tracker, which was an electronic box used in the delivery vehicle that provided data to Domino’s, including the “ignition on” time, “sign in back to store” time, number of deliveries carried out per trip and distance travelled.

92    Much of the applicant’s testimony was not contentious. He gave credible evidence which I accept.

4.6.2    Ms Griffin

93    The applicant relied on the affidavit of Ms Griffin which concerned her experience working as a Delivery Driver, In-Store Worker, Shift Supervisor, Shift Runner and Store Manager from September 2014 to March 2017 at the following Franchise Stores in Queensland:

(a)    at the Beerwah Store, as a Delivery Driver from September 2014 to August 2015;

(b)    at the North Caboolture Store, as an In-Store Worker from August 2015 to January 2016;

(c)    at the Moranbah Store, as a Store Manager from January 2016 to May 2016;

(d)    at the North Caboolture Store, as a Shift Supervisor and Shift Runner from May 2016 to March 2017; and

(e)    at the Kedron and Woolloongabba Stores, as a Shift Supervisor and Shift Runner from January 2017 to March 2017.

94    She deposed as to the day-to-day operation of the Franchise Stores in which she worked. Similarly to the applicant, she said that when she was working as a Delivery Driver at the Beerwah Store, if there was downtime for delivery work she would perform in-store work, initially starting with the dishes while more experienced drivers might be asked to answer phones or attend to the counter. If some of the In-Store Workers had finished their shifts, she was also sometimes asked to do food preparation tasks such as cutting pizzas. At the North Caboolture Store, in addition to delivery driving she undertook food preparation, made pizzas, manned the ovens, cut pizzas, boxed pizzas, prepared pizzas for delivery, answered the phones and served customers.

95    Ms Griffin said that, over time, she became interested in taking on a managerial role at the Franchise Stores operated by the franchise operator running the North Caboolture Store, and she was made a Shift Supervisor and a Shift Runner. She deposed as to her use of several Domino’s information, training and payroll systems in the various Franchise Stores in which she worked, and that she interacted with those systems in the following ways. Her evidence indicated a high level of uniformity in procedures and systems between Franchise Stores.

96    PULSE: Ms Griffin deposed that when she was working as a Delivery Driver and In-Store Worker she used this system in similar ways to the applicant - to clock on and clock off, and to receive delivery orders.

97    Then, when she became a Shift Supervisor and Shift Runner at the North Caboolture Store, she used PULSE to generate rosters and provide information for payroll. She said that employee profiles for each employee were held in the PULSE database, which included the number of hours worked, the shifts, and the applicable rates of pay for each employee. She used PULSE to generate a weekly roster spreadsheet which had a list of employees along with their ages, to which were attached their pay rates but which pay rates were not visible to her. The spreadsheet generated a total roster cost, and in generating it she needed to take into consideration which Store Managers and Shift Runners would be on duty and their skill sets, because she had to ensure that there was the right balance of workers (In-Store Workers and Delivery Drivers) and the right mix of skills (supervisors, food preparation, and customer service).

98    She said that PULSE had functions accessible by Store Managers, Assistant Store Managers and Shift Supervisors that included tracking and recording employee shift information and deliveries, amending and rounding down staff hours, and performing daily/weekly employee expenditure reconciliations. She said that she was sometimes asked to generate spreadsheets from PULSE to be used for payroll, which she then emailed to the store owner.

99    Ms Griffin deposed that when she was Store Manager of the Moranbah Store she could see all employee profiles on PULSE, including the number of hours they had worked and their rates of pay. Importantly, she said once she entered in the relevant employee’s name, date of birth and other personal information, PULSE auto-generated that employee’s rate of pay. She could not recall being able to amend the hourly rates of pay and to the best of her recollection she never did.

100    Ms Griffin said that the Moranbah Store was a small store and experienced low sales. While the rostering process was the same as for the North Caboolture Store, one of the Moranbah Store owners did the budgeting and roster because the budget was so tight. The labour budget always had to be close to 17% of (as I infer) takings, as there was no margin for error.

101    DOTTI: Ms Griffin described this as an online training system, which she used at each of the stores where she worked, except for the Beerwah Store. She said that when she moved to the North Caboolture Store there was a big push towards everyone undertaking their DOTTI training, which included training modules in matters such as safe pizza delivery, customer service and basic health and safety. She also said that DOTTI hosted Domino’s employment policies.

102    GPS Tracker: Ms Griffin said that the GPS Tracker went out with the delivery vehicles and that there was a screen in the Domino’s Store which showed where the Delivery Drivers were in real time. When she was a Shift Supervisor and Shift Runner she used the GPS Tracker for the purpose of looking at driver delivery times, and sometimes to check when a driver would be back to pick up the next delivery. She said that the time taken for deliveries was a key focus at all the Franchise Stores she worked at.

103    Ms Griffin was not cross-examined. Her evidence is unchallenged and I accept it.

4.6.3    Mr Gibson

104    The applicant also relied on the affidavit of Mr Gibson which concerned his experience working as a Delivery Driver and Shift Runner at the Mindarie and Jindalee Stores in Western Australia, between January 2012 and June 2015. Similarly to the applicant and Ms Griffin, he said that when he was working as a Delivery Driver and there was downtime, he would wash dishes or do other in-store duties until a delivery was ready to go out. When he undertook in-store duties, his work included making pizzas, taking orders, washing dishes, and keeping the store clean and tidy.

105    He deposed that he was often rostered on duty for Sunday and public holidays because, as a casual, he did not receive double time for those days. He said that was a discussion point among all the Delivery Drivers, who accordingly expected to be rostered on public holidays. He said that was also something that Delivery Drivers who had transferred to the Mindarie and Jindalee Stores from other Domino’s Stores had spoken about.

106    He said that when he became a Shift Runner, his duties were extended to include being the main point of contact with staff throughout the shift, ensuring that the store was prepared for peak hours in the morning and afternoon, and when working the last shift, closing up the store and performing end of day procedures including conducting stocktake. On top of those duties he worked as a Delivery Driver or In-Store Worker. His evidence indicated a high level of uniformity in procedures and systems between the two Franchise Stores in which he worked.

107    He gave evidence as to his use of Domino’s information, training and payroll systems in those stores, including that he interacted with those systems in the following ways.

108    PULSE: Similarly to the applicant and Ms Griffin, Mr Gibson deposed that when working as a Delivery Driver he used PULSE to clock on and off and to receive delivery orders. Then, when he became a Shift Runner, he said that he used the system to clock Delivery Drivers in and out, and to input shift data.

109    Unlike Ms Griffin, he did not use PULSE to generate rosters as he worked during the week and the rosters were set at the beginning of the week. He said that PULSE had a screen which recorded the statistics for the day, including the number of pizzas ordered and daily takings, and it enabled a direct comparison to the same day the previous year and the generation of weekly and daily reconciliations regarding takings.

110    He said that PULSE was also used to generate daily and weekly Excel spreadsheets that set out takings. At the end of each day there was a macro used to update the figures for the day, extracting data from various sources. The spreadsheet included cash and online sales and food costs and labour costs, and generated a gross profit margin, which was reconciled to cash in bank and was sent to the franchise operator and to Domino’s head office.

111    Mr Gibson deposed that he was sometimes asked to generate an Excel spreadsheet from PULSE for the franchise operator, which included hourly pay rates and which he understood was to be used to calculate the weekly payroll. The franchise operator had an external bookkeeper who calculated the pay due to each employee based on the hours of work in the spreadsheets generated from PULSE.

112    DOTTI: Mr Gibson said that this was a training platform which had training modules. When he was a Shift Runner, he was required to follow up with people to make sure they undertook the training every time a new training module was introduced.

113    Mr Gibson was not cross-examined. His evidence was unchallenged, and I accept it.

4.7    Investigations by the WO

114    In the first half of 2009, inspectors appointed by the WO commenced investigations into complaints of underpayments of employees by Domino’s franchise operators in Queensland and Western Australia.

4.7.1    Pizza Perfection (May 2009)

115    The first investigation conducted by the WO was into a Franchise Store operated by Mr James Willard through Pizza Perfection Pty Ltd. That investigation turned on the issue of whether Pizza Perfection’s employees were subject to the 2005 Agreement, when Pizza Perfection was not a named respondent in that Agreement. It is unnecessary at this point to descend to the minutiae of the determination. It suffices to note that the WO sent two letters to Pizza Perfection dated 6 May 2009 (the First WO Letter and the Second WO Letter), which set out its determination that it accepted the representations by Pizza Perfection and Domino’s that Pizza Perfection was bound by the 2005 Agreement, by operation of the Extended Coverage Clause.

4.7.2    Kalgoorlie (May 2009)

116    On 1 May 2009, Ms Rebecca Cutler, a WO Inspector, emailed Mr Mark McPherson, Domino’s Franchise Operations Manager (WA/SA), setting out her opinion that she did not consider that the 2005 Agreement applied to the Kalgoorlie Store in WA because no relevant entity was named as a respondent to that agreement. Mr McPherson sent Ms Cutler the First WO Letter and the Second WO Letter and there is no record of any further communication.

4.7.3    Alexander Heights (June 2009)

117    On 13 May 2009, Mr Muir (Domino’s agent) provided Ms Ashley Chapple (a WO Inspector) with copies of the First WO Letter and the Second WO Letter in the context of a complaint by an employee of Kando Pizza Pty Ltd, which was the franchise operator of the Alexander Heights Store in WA. Kando was not a named respondent to the 2005 Agreement and the FWO nevertheless determined that Kando was bound by it.

4.7.4    The June 2009 Australian Franchisee Email

118    Following those determinations by the WO, on 21 June 2009 Mr Steve Klaassen (Employee Relations Manager, Domino’s) sent an email to the distribution lists entitled “Franchise Ops Team” and “Australian Franchisees”, which I infer covered all Australian franchise operators at that time (June 2009 Australian Franchisee Email). The email stated:

As you may know, the Workplace Ombudsman is a Federal Government authority which audits employers to see if they are not paying their staff correctly.

Recently, some franchisees in different States have been visited by the Workplace Ombudsman’s Inspectors. Some Inspectors initially formed the incorrect view that the [2005 Agreement] did not currently cover our franchisees because of subsequent changes to employment legislation that came into effect as part of Workchoices in March 2006.

After discussion with the Workplace Inspectors, we have now had written confirmation from the Workplace Ombudsman that the [2005 Agreement] DOES cover franchisees where these franchisees haven’t registered their own agreement i.e, if you are paying the same rates of pay for drivers and in stores that DPE’s corporate stores are paying (as set out in the attached document), this is correct and does NOT need to be changed.

We often find that a Workplace Ombudsman office in one State is not aware that their colleagues in another State have already looked at an issue and made a determination about it. It is therefore VERY important that all franchisees deal with queries raised by Workplace Inspectors on this issue in the same way. What we do NOT want to happen is that a Workplace Ombudsman in one State inadvertently makes a determination about one franchisee that is inconsistent with the one that has already been made by the Workplace Ombudsman in another State.

Where you are contacted by the Workplace Ombudsman please do the following:

1.    Always be polite and helpful towards the Inspector.

2.    Inform the Inspector that [Domino’s] head office has had written confirmation that the 2005 SDA Agreement does apply to you (assuming you are paying these rates and have not registered your own agreement).

3.    Ask the Inspector to speak directly to: Gil Muir, Employer Services, [telephone number supplied] who will inform them further of the previous correspondence from the Workplace Ombudsman

Please don’t hesitate to contact me if you have further questions.

4.8    Interactions between Domino’s and the FWO

4.8.1    The First FWO Compliance Deed

119    On 19 December 2011, Domino’s and the FWO entered into a Pro-Active Compliance Deed (the First Compliance Deed), which required Domino’s to undertake certain compliance activities, including the implementation of a “National Self-Audit Program”. The First Compliance Deed relevantly stated:

1.    Domino’s must ensure that it complies at all times and in all respects with Relevant Commonwealth Workplace Laws by developing systems and processes to ensure ongoing compliance.

2.    Domino’s must facilitate compliance with Relevant Commonwealth Workplace Laws by its franchisees by developing systems and processes to provide appropriate guidance and training to franchisees.

120    In June 2013, the FWO released its “Final Report on the Pro-Active Compliance Deed” (First Compliance Activity Report), which noted that from 11 December 2011 to 31 May 2012, Domino’s and its franchise operators undertook a self-audit to test compliance for payments made to Delivery Drivers across the period 1 January 2010 to 8 December 2011 and for payments made to In-Store Workers during two fortnightly audit periods. The report relevantly stated:

The findings from the self-audit program conducted by Domino’s and its franchisees found that approximately 7.3% of the adult delivery drivers were underpaid the amount of $588,160 between 1 January 2010 and 8 December 2011. The audit of the in-store employees for two fortnightly pay periods in April 2010 and April 2011 found that only 2 employees were underpaid.

Following the completion of these initiatives, Domino’s and the Fair Work Ombudsman have continued to work together, including the resolution of issues raised by employees and engagement on matters such as interpretation of industrial instruments.

121    Those audits were conducted by Domino’s on the basis that the Agreements applied to the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers. It is appropriate to infer that the FWO concurred in that approach.

122    On 21 June 2016 Domino’s issued a “Notice to Require Audit” to Dominoids, the franchise operator of the North Caboolture Store at that time, because Domino’s suspected that Dominoids was not complying with the applicable employment laws. On 29 September 2016 Domino’s sent a further letter to Dominoids providing the outcome of the external audit, which found numerous breaches of the Agreements. No Domino’s internal audit activities were conducted in relation to MC Pizza.

123    It is uncontentious that when Domino’s conducted a compliance audit of a Franchise Store it did so by reference to the pay rates and terms and conditions of employment in the relevant Agreement, and not by reference to the Award. Domino’s admitted that where an audit of a franchise operator established that its employees were not being paid in accordance with the relevant Agreement, Domino’s stated to the franchise operator that those employees should have been paid in accordance with the relevant Agreements (as adjusted by agreement with the SDA). Again, it is appropriate to infer that the FWO concurred in that approach.

4.8.2    The Second FWO Compliance Deed

124    In September 2014, Domino’s entered into a Second Compliance Deed with the FWO, which focused on improving franchisees’ awareness of workplace obligations and establishing centralised processes for resolving requests for assistance from workers.

125    In September 2016, towards the end of the operation of the Second Compliance Deed, the FWO said that it began to receive information from a variety of sources (industry, ex-franchisees, ex-employees wishing to remain confidential, and the media) indicating that underpayment of employees was common throughout the Domino’s network.

126    In a report titled “Half Year Results - Period ending 31 December 2017” (December 2017 Half Year Report) published 5 February 2018, Domino’s reported that its assessment of Australian stores was close to completion and the results from the 669 stores were reported as follows:

•    646 stores requiring little or no action

•    15 stores (relating to 4 Franchisees) have been issued breach notices for a variety of issues

•    5 store assessments have been delayed, as a result of change in ownership, and are expected to be completed by the end of February

•    3 full external audits being conducted

•    10 stores have not been captured by this assessment, due to having opened recently. These stores will be captured in the new investigative process that has been developed on the basis of the Deloitte recommendations

127    The Deloitte recommendation referred to a “comprehensive action plan” which “involved the development of a new monitoring and investigative process which [would] utilise sophisticated systems and methodologies developed in conjunction with Deloitte as a proactive strategy for the identification of undesirable activities”, which process was expected to be in use by mid-March 2018.

128    Subsequently, to satisfy itself about the level of compliance with workplace laws across the Domino’s network, the FWO commenced its own compliance investigation into a sample of 33 Domino’s Stores (the Activity). In its report the FWO said some stores were selected for auditing across the Domino’s network due to reported issues (including 10 stores owned by one franchise operator) and others were randomly selected to test the overall national level of compliance.

129    In September 2018, following that investigation, the FWO published a report entitled “Domino’s Compliance Activity Report” (Second Compliance Activity Report), the executive summary of which stated as follows:

The Activity found significant non-compliance with Commonwealth workplace laws contained in the Fair Work Act 2009 (FW Act) and the applicable Domino’s enterprise agreements (Enterprise Agreements).

Of the 33 Domino’s stores audited, 10 stores operated by a single franchisor remain under investigation. Of the 23 finalised investigations, 19 of those stores were found to have at least one breach of workplace law.

The Activity found breaches covering underpayments of overtime and minimum shift engagements, as well as non-payment for hours worked, delivery allowance, annual leave loading and personal leave entitlements. The Activity also disclosed unauthorised deductions.

In reviewing a month of wage payments from 6 February to 5 March 2017 at each store, the Activity disclosed underpayments for 20 workers totalling $1978.77 (an average of $99 per worker). If the FWO was to extrapolate the results from this sample over a longer period and across the whole of the Domino’s network, it is likely that total underpayments of Domino’s employees are both significant and widespread.

By focusing in-depth on 33 stores (twenty-seven (27) franchise, six (6) corporate (including a joint venture) (collectively the Stores) the Activity to date has resulted in the following enforcement outcomes for a range of breaches:

•    17 Formal Cautions

•    Four (4) Compliance Notices.

…

While noting the steps taken by Domino’s since late 2016 to address non-compliance in its network by auditing its stores, the FWO remains concerned about the levels of non-compliance as disclosed by its Activity.

The FWO recommends that Domino’s immediately commence a review of compliance with workplace obligations in relation to all employees across its network, including at both franchisor and franchisee owned stores.

130    The Second Compliance Activity Report shows that the FWO also assessed compliance by franchise operators by reference to the pay rates and terms and conditions of employment in the relevant Agreements, as adjusted by agreements with the SDA, and not by reference to the Award.

4.9    Domino’s information, training and payroll systems and services

131    The lay evidence was useful in providing a base-level description of the uniformity of procedures and systems across Franchise Stores, and of Domino’s information, training and payroll systems. More detailed evidence of those matters was adduced through tendered documents, admissions by Domino’s, and Domino’s answers to interrogatories. Domino’s answers to interrogatories were admitted into evidence without challenge.

132    For present purposes, the important feature of Domino’s national franchise system is that it was conducted through a standardised set of franchise documents, Disclosure Documents, training materials, operating requirements and systems, which were centrally prepared and disseminated and which franchise operators were required to use in the establishment and operation of their Franchise Stores.

133    Domino’s had various systems for distributing uniform documents to franchise operators and prospective franchise operators at different points, including Disclosure Documents for prospective franchise operators, business sale and purchase materials, store asset rental management documents, training documents provided during compulsory induction, training and policy documents distributed by email or through DOTTI, and pay rate notices distributed by email. The evidence shows that Domino’s provided many uniform documents to franchise operators which contained information about the applicable industrial instrument or pay rates for franchise operators’ employees. It did so through emails, information uploaded to DOTTI, and mandatory training modules uploaded to DOTTI for existing franchise operators and as part of induction training for new franchise operators.

134    Domino’s also provided information to franchise operators about the applicable pay rates for their employees through centralised payroll information and services such as Payroll Award Interpreter (PAI) and TANDA, and through DBS for those franchise operators who used that service. Either by itself, or through a third party provider, Domino’s configured PAI and TANDA to calculate employee entitlements in accordance with the Agreements (as adjusted) - not by reference to the Award - and applicable pay rates could be viewed by franchise operators (or at least by those using DBS). Through DBS (for those franchise operators who used it), Domino’s payroll team (Domino’s Payroll) processed the franchise operators’ weekly payrolls and provided payslips to employees using the applicable pay rates in the Agreements (as amended) and prepared bank upload files for franchise operators to pay their employees.

135    I now turn to explain the various uniform or generic documents that Domino’s provided, and the methods or systems by which it did so. Much of what follows is drawn from Domino’s answers to interrogatories.

4.9.1    Standard form sub-franchise agreements

136    Domino’s admitted that the sub-franchise agreements and other Disclosure Documents that it provided to prospective franchise operators during the Relevant Period were in standard or generic form, with materially the same terms. I later address those parts of those documents upon which the parties relied.

4.9.2    DOTTI

137    Domino’s admitted that during the Relevant Period it operated an online internal information system named DOTTI. The evidence shows that during the Relevant Period Domino’s used DOTTI to make uniform information available to franchise operators, and also to franchise operators’ employees, including mandatory or recommended online training modules in relation to numerous topics.

138    At the commencement of the trial, it appeared that there was a controversy between the parties as to whether the Domino’s provision of documents to franchise operators through DOTTI provided a sufficient basis to infer that those documents were more likely than not to have been seen by franchise operators. In its Amended Defence (AD), Domino’s pleaded partial denials advanced on the basis that, while Domino’s admitted that it had made the particular documents relied upon by the applicant available to franchise operators on DOTTI, many franchise operators had not downloaded them. For example, Domino’s admitted that:

(a)    on and from 2 May 2012, it had made available on DOTTI to franchise operators a document entitled “Fair Work Laws - Australia” dated 30 April 2012. Domino’s alleged, however, that that document was downloaded by only approximately 4% of all franchise operators; and

(b)    on and from 28 October 2014, it had made available on DOTTI to franchise operators a document titled “Fair Work Laws: Franchisee Orientation Program” dated 20 May 2014. Again, Domino’s alleged that that document was downloaded by approximately less than 1% of all franchise operators.

It made the same contention about most of the documents the applicant alleged that Domino’s had provided to franchise operators on DOTTI through the Relevant Period.

139    In opening written submissions filed prior to trial (at [41]), Domino’s accepted that it provided many of the pleaded documents to franchise operators by uploading those documents to DOTTI. However, it submitted that its AD:

…identifies that the download rate for these documents was low. Certainly, some franchise operators downloaded some of these documents. But many did not. The combination of documents downloaded will vary from Franchise Operator to Franchise Operator.

140    I understood the point of Domino’s contention as being that, although it admitted that it provided the relevant documents to franchise operators on DOTTI, the evidence did not establish that its doing so was likely to have conveyed the alleged representations to franchise operators, because the applicant had not established that any particular franchise operator had read the documents.

141    Further, shortly before the trial, Domino’s filed an affidavit of Mr Dustin Ross, a Learning Systems Specialist in Domino’s employ, sworn 17 October 2022. The thrust of his proposed evidence was that he had undertaken searches of the DOTTI database to ascertain which documents had been downloaded by the franchise operators and Store Managers of the North Caboolture Store during the Relevant Period. I infer that Mr Ross was in a position to give evidence as to whether it was necessary to download a document from DOTTI in order to view it. During the course of the hearing there were discussions before the Court as to whether Mr Ross would be required for cross-examination, and one of the issues to which his evidence was expected to go was whether a document could be viewed on DOTTI without downloading it. Ultimately Domino’s decided not to call Mr Ross. Domino’s was left with no evidence to support its allegation in relation to the significance of downloading documents from DOTTI.

142    This aspect of the forensic history is important because the applicant gave unchallenged evidence that when seeking to view documents on DOTTI, it was possible to read a document in the web browser without a requirement to download it. The decision by Domino’s not to challenge the applicant’s evidence, and not to call any evidence to show that a document on DOTTI could only be read by downloading it, meant that the line of defence it foreshadowed in its Amended Defence and opening submissions was ultimately not supported by evidence. As a result, Domino’s submissions about the low level of downloads of the relevant documents carry no weight.

4.9.3    Pay rate emails to franchise operators

143    The evidence shows that during the Relevant Period, Domino’s regularly sent standard form emails to existing franchise operators that set out the applicable wage rates for, relevantly, Delivery Drivers and In-Store Workers. I will set out the relevant emails and attachments when precisely identifying the impugned conduct.

4.9.4    PULSE

144    At all material times, Domino’s provided a suite of software applications titled PULSE to its franchise operators. The software was developed for and owned by Domino’s Pizza Distribution LLC, a US company, which licensed the software to Domino’s.

145    PULSE could be accessed from all Franchise Stores and remotely, and it was used by all franchise operators for certain operational purposes such as taking, making and dispatching orders. PULSE included five applications - Management, Time Clock, Order Entry, Makeline, and Dispatch - which I now turn to explain.

146    Management: This function could be accessed by franchise operators, Store Managers, persons given authorisation by store management, and also by Domino’s head office.

147    When a franchise operator hired a new employee, the franchise operator was required to populate certain fields in this application for the employee to be recorded in PULSE (and given a PULSE Team Member Code), including the employee’s name, address, telephone number, email, date of birth, hiring date, emergency contact, job position, and user identification number and password.

148    The user identification number was a different field to the PULSE Team Member Code, although franchise operators were encouraged to use the same number for both. The employees of the franchise operators used their user identification number and password to log into the Time Clock and thereby enable their access to PULSE applications, such as Order Entry. Until they did so, they could not use those applications, and accordingly could not, for example, take telephone orders. There were, however, a number of tasks, including dough making, that an employee could perform without being logged in through Time Clock. The same employee could be given authority to log in under a number of different positions, to allow for working shifts in different capacities.

149    The entry of this information into PULSE through the Management application was undertaken by franchise operators and Store Managers without any input from Domino’s. Store Managers would allocate a position from the list of options to an employee without any input from Domino’s, but the job positions were set by Domino’s and could not be altered by franchise operators. Domino’s IT could, at the request of Domino’s operations teams, alter the positions available, including by adding new positions (for example, Domino’s added the position of Shift Runner in or about July 2011).

150    In addition, if the franchise operator was using DBS, it was also required to enter the employee’s payroll number into Management, which the franchise operator would obtain from Domino’s Payroll. The employee’s payroll number was used by other Domino’s systems, such as PAI, TANDA and Meridian (each explained below) to identify the employee.

151    Franchise operators could enter a pay rate for an employee in the Management application, but that pay rate was not used by PAI, TANDA, Meridian or Domino’s Payroll. The pay rate used in PAI would come from Meridian. When TANDA was being used, the pay rates and conditions were held in TANDA and updated by Domino’s Payroll. The pay rates stored in PULSE were not used for payroll purposes, but were instead used to help calculate an approximate labour cost as a percentage of sales that the Domino’s operations team used as a KPI to compare against previous weeks.

152    Management also had a function named Team Member Checkout, which enabled a Store Manager to clock out any employee who had not yet clocked out through Time Clock (defined below) and to review all of the shifts that had been recorded in PULSE through Time Clock. Through this function the manager could edit the recorded start and finish times of each shift and the position under which the employee was logged in, so that the record reflected the times and positions actually worked. In this function the manager was also prompted to check all of the payments that were recorded as having been collected by Delivery Drivers, and a reconciliation report was available recording the deliveries made and the total value of those orders.

153    Time Clock: This was the function that employees used to log in to all PULSE applications. Franchise operators that used DBS and TANDA were required to use Time Clock and Management for time recording. Other franchise operators were not required to do so, but some used it to capture employees’ time worked during the Relevant Period, and others used other methods.

154    When employees clocked in and clocked out using Time Clock, that information was stored on the PULSE database, including the PULSE Team Member Code, the position they logged in for that shift (e.g., Delivery Driver), meal breaks (if the franchise operator required this information to be recorded in PULSE) and the number of shifts worked by the employee that day (on the basis of the number of times they had clocked in and clocked out through Time Clock). Some franchise operators asked employees to clock out at the start of a meal break so that this time could also be captured.

155    Domino’s noted that the accuracy of the time data was dependent on the employee clocking in and clocking out and the position they chose when doing so, and that if an employee forgot to do so the time record would be inaccurate. Domino’s also noted that there were some tasks that an employee could perform without being logged in through Time Clock. It further noted that at the end of each day Store Managers were required to clock out any employee who had not properly clocked out through Time Clock, and to check and correct each shift recorded in the PULSE database. Once that had been done, the manager could record that the shift record had been checked.

156    Once the shift information for each employee, as checked by the Store Manager, was recorded in the PULSE database, the time record was available to be used by the franchise operator for payroll calculation through PAI (but, as explained below, in Franchise Stores not using DBS (non-DBS Stores) the PAI application did not have pay rates loaded into it by Domino’s). When the TANDA software superseded PAI during the Relevant Period, PULSE would automatically push employee and shift information to TANDA, including employee name and code, telephone number, email address, date of birth, position, store number and location, clock-in and clock-out times and delivery information (e.g., delivery count and location of deliveries).

157    Order Entry: This function was used by all Domino’s Stores to take telephone and store counter orders. For an employee to use Order Entry, they had to be logged in through Time Clock.

158    Makeline: This function was used by all Domino’s Stores to guide In-Store Workers in making pizzas and to prioritise deliveries.

159    Dispatch: This function was used in all Domino’s Stores by its Delivery Drivers to associate themselves with delivery orders, and by Store Managers to assess whether multiple delivery orders could be efficiently delivered together by one Delivery Driver in a single delivery. Dispatch ran on terminals in the stores, which were available to Delivery Drivers. Dispatch recorded in PULSE the time between the placing of the order and the Delivery Driver logging leaving the store with the order, and the time the order was logged as completed.

4.9.5    GPS Tracker

160    GPS Tracker was third-party software that allowed Store Managers to track Delivery Drivers’ progress on a screen in the Domino’s Store, and also allowed customers to view the progress of the delivery on the Domino’s website or mobile application. It was used from around July 2015 to 1 December 2021. Corporate vehicles had GPS Tracker installed, and when Delivery Drivers were using their own vehicle the GPS Tracker was part of the “car topper” A-frame, which displayed Domino’s branding, that Delivery Drivers were required to fix to the top of their personal vehicle.

161    During the Relevant Period, Domino’s could access a subset of the collected GPS Tracker data which included the routes and distances travelled; when they travelled those routes and distances; the identity of the Delivery Driver; the order(s) assigned; geofence data (that is, a virtual geographic boundary around a GPS coordinate that enables software to trigger a response when a mobile GPS device enters or leaves that particular area); and GPS-triggered events (for example, “order assigned” and “ignition on”).

4.9.6    Domino’s Bookkeeping Service (DBS)

162    During the Relevant Period, Domino’s offered DBS to all of its franchise operators, under which Domino’s would perform certain payroll functions on behalf of the franchise operators. Importantly, the payroll functions included calculating the pay entitlements of the franchise operators’ employees. Domino’s had configured DBS with a default setting to calculate the pay entitlements of Delivery Drivers and In-Store Workers by reference to the Agreements (as adjusted through agreements with the SDA), rather than by reference to the Award.

163    The evidence is that, from September 2012, each new franchise operator not related to an existing franchise operator was required to use DBS for a period of 24 months from the date of their entry into a sub-franchise agreement. In answers to interrogatories Domino’s stated that, from about 1 January 2015, the requirement for new franchise operators to use DBS was changed from 24 months to an ongoing requirement; i.e., the requirement did not cease at 24 months. It is therefore appropriate to infer that all new franchise operators from September 2012 until the end of the Relevant Period (except for any new franchise operators who commenced their franchise in the period from September 2014 to January 2015) entered into a Bookkeeping Services Agreement (DBS Agreement/s) with Domino’s in substantially the same form. Further, certain other franchise operators (including, for example, a franchise operator that purchased an additional store once already using DBS) were required to use the service permanently.

164    Dominoids executed a DBS Agreement on 21 November 2014 in relation to the Beerwah Store, which agreement provided for other stores managed by Dominoids to also use DBS. Dominoids used DBS at the North Caboolture Store from about 1 November 2015 to 28 August 2016. MC Pizza did not use DBS.

165    The number of Franchise Stores in Australia varied over the course of the Relevant Period, as did the percentage take up rate of DBS. Domino’s answers to interrogatories show that over the Relevant Period the number of Franchise Stores ranged between 421 (at its lowest point) and 623 (at its highest point). In relation to the percentage take-up rate of DBS, Domino’s answers to interrogatories show that as at 30 June 2013, 32 Franchise Stores were using DBS out of the then existing 421 Franchise Stores (approximately 7.6%), whereas by 28 January 2018, 211 Franchise Stores were using DBS out of the then-621 Franchise Stores (approximately 34%). I also accept:

(a)    Mr Potter’s evidence that there were 313 Franchise Stores that used DBS during the calendar years 2017 to 2019; and

(b)    Ms Wright’s evidence that, during the Relevant Period, approximately 46.1% of all Franchise Stores used DBS at some point for some period, and that 56.6% of workers who worked at least one shift during the Relevant Period worked at a Franchise Store that used DBS.

4.9.7    Payroll Award Interpreter (PAI)

166    During the Relevant Period, from about December 2011 to 31 August 2017, Domino’s provided franchise operators with access to a software application titled “Payroll Award Interpreter” (which I have previously defined as PAI). The software was an internal industrial agreement interpreter used by Domino’s prior to the introduction of TANDA to calculate the wages payable to franchise operators’ employees for each shift in accordance with the appropriate rates and allowances, using pay class codes.

167    PAI was only available to be used by franchise operators that used DBS (DBS Stores), and it had to be used by those franchise operators. Each DBS Store ran a separate PAI application with a separate SQL database. PAI could only be accessed by franchise operators, Store Managers (and other authorised employees), and Domino’s Payroll. In addition to being able to access each store’s PAI application, Domino’s Payroll also ran a separate PAI application with its own SQL database, to which the data from each store’s PAI application was uploaded.

168    For DBS Stores, Domino’s set up PAI to calculate the pay rates for franchise operators’ employees using the rates, conditions and classifications under the Agreements, as amended to reflect additional payments agreed with the SDA. PAI used pay class codes that combined the applicable rate of pay (obtained from Meridian) based on the duties being performed by a particular employee with those based on the employee’s age. PAI would apply the pay class code that reflected the classification from the Agreements that correlated to the position under which the employee logged in at the start of the relevant shift (obtained from PULSE). In addition, Domino’s Payroll would make any changes to those rates of pay, positions and conditions as requested by a franchise operator in relation to one or more of its employees. Such changes were made by amending the rules within PAI (for example, when introducing the TTENA (as later defined) allowance which was a 9% loading on a Delivery Driver’s pay rate) and other changes could be made manually by Domino’s Payroll (for example, Sunday loading).

169    The default classifications and conditions of employment set up in PAI were based on instructions from Domino’s Payroll and Domino’s employee relations and human resources teams.

170    Domino’s Payroll used the employee information provided by the franchise operator to create a unique employee record (in Meridian) and payroll identification number for each employee, and to assign each employee a default pay class code. PAI used the employee Time Clock records and position recorded for each shift in the PULSE database (as checked and verified by the manager) to inform the calculation of the wages payable.

171    Once the manager of a DBS Store had approved the time recorded for employees (with any necessary corrections) in PULSE, that data was then available for use by PAI. A Store Manager could, however, access PAI and again correct any inaccurate information concerning the hours worked by employees, when those hours were worked, and the number of deliveries made, and then approve and upload the data to the SQL databases. This upload could be performed on a daily or end-of-week basis. The information uploaded would include what the employee was to be paid, on the basis of the calculations performed by PAI. After the data had been exported at the end of the week by Domino’s Payroll via its PAI payroll application, a franchise operator or Store Manager could no longer alter the information.

172    Non-DBS Stores could also use PAI, but the only data the application would receive would be PULSE data from that store, being that store’s Time Clock data (if it used the Time Clock function). The PAI application in non-DBS Stores did not have any pay rates loaded into it automatically, nor could a non-DBS Store load any pay rate information into the application manually. A non-DBS Store could not use the PAI application to perform payroll calculations and a non-DBS Store was unable to upload any data from PAI onto another payroll software platform (for example, MYOB).

4.9.8    TANDA

173    TANDA was a third-party-operated online software platform that Domino’s made available to all franchise operators to manage rosters and timesheets and to perform wage calculations. Franchise operators using DBS were required to use TANDA for those functions. It replaced PAI and, following a testing period from 19 September 2016 to the end of that year, was progressively rolled out to all franchise operators from late December 2016.

174    From July 2017, all franchise operators were expected to use TANDA, but that was not enforced by Domino’s. TANDA began to be used as an industrial agreement interpreter (replacing PAI) from August 2017. TANDA could be accessed by any Domino’s employee, franchise operator, Store Manager or worker through TANDA’s website and the TANDA App. Although TANDA was available for use by non-DBS Stores, Domino’s does not know to what extent it was used by those stores.

175    Similarly to PAI, Domino’s caused TANDA to be set up by a third-party provider to assist in calculating what an employee was owed for approved shifts according to the Agreements, any additional payments agreed with the SDA, and any other conditions for particular employees set by particular franchise operators. The positions, rates of pay and other conditions entered into TANDA were initially inputted by the third-party provider on the instruction of Domino’s Payroll and Domino’s employee relations team. Amendments to those positions and conditions were then made by the third-party provider at Domino’s Payroll’s request or by Domino’s Payroll directly in accordance with the Agreements (as adjusted with the SDA) and any additional changes requested by a franchise operator in relation to one or more of its employees, including rates of pay.

176    For DBS Stores, an employee’s classification was set by Domino’s Payroll. The franchise operator or Store Manager could see, through the TANDA interface, an employee’s classification and all of the employee pay rates and conditions. The franchise operator could ask Domino’s to change an employee’s classification from a list of available classifications.

177    For non-DBS Stores franchise operators could themselves change an employee’s classification, choosing from a list of classifications. The franchise operator could also see, through the TANDA interface, all of the employee pay rates and conditions. Those non-DBS franchise operators could not add or delete classifications from that list.

178    For the purposes of performing pay calculations, PULSE regularly pushed data to TANDA concerning hours worked by employees on shifts, the job position recorded for those shifts, and the number of deliveries made and by whom. Store Managers (and other authorised employees) at DBS Stores would access TANDA when they were closing a store for the day. TANDA displayed the timesheets recorded for the employees working at the store for that day, including the number of deliveries recorded. The manager was required to check those timesheets, make any necessary changes, and approve them. When they were approved, TANDA automatically sent a notification via the TANDA App to each employee informing them of what had been recorded as their hours worked and deliveries made that day. Employees could access their timesheets through TANDA to check what was recorded there to enable them to raise any inaccuracies with their manager, but could not make any changes in TANDA. Once employees’ timesheets had been approved by a Store Manager in TANDA, the information they contained was available to be extracted by Domino’s Payroll (for those stores using DBS).

179    TANDA would use some of the employee information that Store Managers had entered into the PULSE database through the Management application, in conjunction with employee information provided by franchise operators, entered into Meridian by Domino’s Payroll and sent to TANDA by a separate application, to finalise the TANDA employee profile. TANDA would then use the employee profile to inform the calculation of the wages payable for each shift based on the timesheets approved by the franchise operator or Store Manager.

180    In non-DBS Stores, franchise operators could change that employee information for employees working at their store. They were themselves able to change job positions, rates of pay and conditions within TANDA, including base pay rates. If the pay rate was set to below the minimum for the classification, a warning would display on the screen stating that the pay rate was below the minimum and advising that if the franchise operator wanted to pay the minimum for the classification, they should set the base rate field to zero to use the standard rate from the Agreement. A lower base rate could nevertheless be saved and could be used by the system to calculate the labour cost for that employee’s shifts. In DBS Stores, the franchise operator could not do this, but they could ask Domino’s Payroll to add different positions, rates of pay and conditions.

181    For non-DBS Stores, what employees saw when they logged in to check their pay in TANDA was the rates entered into TANDA by the franchise operator. Non-DBS Store franchise operators could export data from TANDA in an Excel file showing the hours worked and the classification under which those hours were worked for all employees at the relevant Domino’s Store. The exported spreadsheet did not include a pay rate associated with the employee’s classification, but did include the gross wage total for the pay period.

182    TANDA also offered non-DBS Store franchise operators automated integration with other third-party payroll software. This functionality was set up by the franchise operator dealing with TANDA directly. Like the data exported to an Excel file, the data automatically exported from TANDA and imported to the third-party payroll software would be hours worked and employee classification, but not pay rates. The third-party software would then associate the classifications with the pay rates entered into that software manually.

4.9.9    Meridian

183    Meridian was Domino’s payroll application during the Relevant Period. It was used by Domino’s from 2007 to June 2018. Meridian was used by Domino’s Payroll to provide DBS to DBS Stores, and it was not used by or for non-DBS Stores. Meridian was internal to Domino’s and not available for franchise operators to access directly.

184    As I explained, Domino’s Payroll used the information provided by franchise operators of DBS Stores to set up a unique employee record in Meridian. The employee record included pay rates, conditions and positions that were selected by Domino’s Payroll to be in accordance with the Agreements, as amended, and any additional changes requested by a franchise operator in relation to one or more of its employees. DBS Stores could ask Domino’s Payroll to alter an employee’s rates of pay, conditions and position by adding different conditions and rates of pay to be available within Meridian for a particular employee.

185    On a weekly basis, or as required, Domino’s Payroll would review those pay rates, conditions and positions to make any necessary changes, such as an increase in pay rates that had been agreed as part of the Agreements (as amended), or changes due to an employee having a birthday.

186    When PAI was being used, Store Managers would upload approved timesheets to the relevant database. This data was used by Domino’s Payroll to create an export file to be imported into Meridian. Once the data had been exported by Domino’s Payroll, the timesheet became ‘locked’ in PAI, and it could not be changed by a Store Manager in that application. Domino’s Payroll would undertake basic quality assurance checks on the timesheet data provided by franchise operators and managers, such as ensuring that shifts worked on public holidays were identified as attracting any applicable penalty rates, and identifying overlapping shifts supposedly worked by the same employee.

187    Following the introduction of TANDA, every Monday, Domino’s Payroll would extract the data from timesheets that had been approved in TANDA. Again, once the data had been extracted from TANDA, the relevant timesheets would be ‘locked’ and unable to be changed in TANDA. Once that information was extracted to Meridian each week (whether from PAI or TANDA), Domino’s Payroll would generate reports for each DBS Store and check for any basic errors in the data, such as incorrect overtime and uniform deductions.

188    When that quality assurance process was complete, Domino’s Payroll would generate an email providing a PDF to each franchise operator that showed what had been recorded in Meridian for each of the franchise operator’s employees that week for:

(a)    hours worked and the date on which those hours were worked;

(b)    rate of pay for those hours;

(c)    any additional entitlements and the value of those entitlements;

(d)    net and gross pay amounts;

(e)    tax payable on those amounts that had been deducted; and

(f)    superannuation entitlements.

189    If the franchise operator requested any changes, Domino’s Payroll would make changes in Meridian and send a new report to the franchise operator to be checked. The changes that could be requested by a franchise operator included:

(a)    changes to the classification worked on a particular shift (because, for example, an employee had accidentally logged into PULSE as a Delivery Driver, but actually worked as an In-Store Worker);

(b)    changes to the hours worked, as well as any subsequent changes to loading if the change in hours also required changes to the loading;

(c)    changes to the number of deliveries made in a private vehicle;

(d)    requests for an employee to be paid a particular bonus amount;

(e)    changes to the number of training hours completed by an employee;

(f)    changes to any leave entitlements and related payments;

(g)    changes to any uniform deductions;

(h)    changes to expenses and allowances, including training allowances; and

(i)    changes to the rates of pay.

190    Once the franchise operator had approved the information contained in the report, Domino’s Payroll would generate an Australian Banking Association (ABA) file and a PDF electronic funds transfer (EFT) report that reflected the information that had been approved by the franchise operator. Both the ABA file and the EFT report were generated using Meridian, which would also produce payslips for employees. That payslip data was also received by another software application that allowed all employees to view their payslips online. Domino’s Payroll would provide the final payroll report, ABA file, EFT report and payslips to the franchise operator.

191    A franchise operator could use those files to pay their employees automatically by EFT or use the details in the EFT report to pay their employees by some other means. Domino’s noted that ABA files were text files and a franchise operator could change what an employee was to be paid if they wished to do so before uploading the file to their bank to have their employees paid automatically by EFT.

5.    THE APPLICABLE PRINCIPLES

192    The applicable principles in relation to claims of misleading or deceptive conduct under the ACL are well established. The parties were in broad agreement about the principles, except in relation to one important matter which I will go to after setting out the principles which I do not understand to be in dispute.

193    The inquiry required by s 18 is objective. It does not depend upon the subjective intention of the respondent. Whether conduct conveys a representation is to be determined objectively, in all of the circumstances. This involves consideration not only of the literal meaning of any words, phrases and figures used, but also the context in which they are used, including the nature of the parties, the character of their dealings, and their respective states of knowledge. In relation to whether conduct is misleading or deceptive or likely to mislead or deceive, the central question is whether the impugned conduct, viewed in light of all relevant surrounding facts and circumstances and having regard to the conduct as a whole, has a sufficient tendency or is apt to lead a person or class of persons exposed to the conduct into error; that is, to form an erroneous assumption or conclusion about some fact or matter: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 149 CLR 191 at 198 (Gibbs CJ); Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 199-200, 202 (Deane and Fitzgerald JJ); Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; 202 CLR 45 at [98] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 at [109]; Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 at [102] (McHugh J); Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 at [39] (French CJ, Crennan, Bell and Keane JJ).

194    A number of subsidiary principles directed to that central question have been developed:

(a)    Conduct is likely to mislead or deceive if there is a real or not remote chance or possibility that relevant persons may be misled or deceived: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87 (Bowen CJ, Lockhart and Fitzgerald JJ); Noone (Director of Consumer Affairs Victoria) v Operation Smile (Australia) Inc [2012] VSCA 91; 38 VR 569 at [60] (Nettle JA, with Warren CJ and Cavanough AJA agreeing at [33]).

(b)    It is not necessary to prove an intention to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; 140 CLR 216 at 228 (Stephen J, with Jacobs J agreeing at 232), 234 (Murphy J); Puxu at 197 (Gibbs CJ). But where a representation is made in terms apt to create a particular mental impression in the person or class of persons exposed to the conduct, and is intended to do so, it may properly be inferred that it has had that effect: Gould v Vaggelas [1985] HCA 75; 157 CLR 215 at 237-8 (Wilson J).

(c)    A corporation could contravene s 18 of the ACL even though it acted reasonably and honestly: Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; 249 CLR 435 at [9] (French CJ, Crennan and Kiefel JJ). Conduct may be misleading or deceptive without knowledge or fault on the part of the corporation, and notwithstanding the exercise of reasonable care: Johnson Tiles Pty Limited v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 564 at [66] (French J, with Beaumont J agreeing at [1], Finkelstein J agreeing at [99]), citing Fraser v NRMA Holdings Limited [1995] FCA 9; 55 FCR 452 at 465 (Black CJ, von Doussa and Cooper JJ).

(d)    It is unnecessary to prove that the conduct in question actually deceived or misled anyone: Puxu at 198; Google at [6]. The question as to whether conduct is misleading or deceptive or likely to mislead or deceive is objective and the Court must determine the question for itself: Taco Bell at 202.

(e)    A consequence of the need to consider the conduct in light of all relevant circumstances is that a representation that is alleged to be misleading or deceptive or likely to mislead or deceive must be considered having regard to any qualifications or disclaimers to the impugned statements: Campbell at [29]-[30].

(f)    To be effective, a qualification or disclaimer must have the effect of erasing or neutralising whatever is alleged to be misleading or likely to mislead in the conduct: Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 at [83] (Keane JA, Williams JA agreeing at [1], Atkinson JA agreeing at [145]); Benlist Pty Ltd v Olivetti Australia Pty Ltd [1990] ATPR 41-043 at 51,590 (Burchett J). Relevant considerations include the prominence and clarity of the disclaimer and its placement in relation to the alleged misleading statement. Ultimately, the question is one of the overall assessment of the publication or communication in the context it was made: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; 278 FCR 450 (ACCC v TPG (FC)) at [25] (Wigney, O’Bryan and Jackson JJ). The party alleging that a disclaimer has the effect of erasing or neutralising the alleged misleading conduct ordinarily has the onus to establish that: Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd [2019] FCA 676; 371 ALR 396 at [33(3)] (Bromwich J).

5.1    Representations to a class

195    The parties disagree as to the appropriate approach to determining whether Domino’s conduct conveyed the alleged representations and to assessing whether that conduct should be characterised as misleading or deceptive.

196    The applicant submitted that, by providing the Franchise Information, the Franchise Agreement Documents, the Franchise Disclosure Documents and the Compliance Information (as later defined) to franchise operators and prospective franchise operators, and by engaging in the Compliance and Audit Activities, and providing the Payroll Services to franchise operators and configuring the Payroll Services and computer systems as alleged, Domino’s made a series of uniform representations to a class of persons: franchise operators and prospective franchise operators (the franchise operator class). He contended that where conduct is directed to the public or part of the public (here a class comprising several hundreds of franchise operators), determining whether that conduct conveyed the alleged representations, and assessing whether it is appropriate to characterise any representations conveyed as misleading or deceptive, must be undertaken by reference to the effect or likely effect of the conduct on the ordinary and reasonable members of the relevant class of persons.

197    Domino’s argued to the contrary. It submitted that, in the particular circumstances of this case, whether its impugned conduct conveyed the alleged representations, and whether that conduct is properly characterised as misleading or deceptive, must be assessed by reference to the individual franchise operators to whom (as it submitted) the conduct relevantly applied.

5.1.1    Domino’s submissions

198    Domino’s submitted the “sufficiency” of a tendency to mislead depends on the persons to whom the conduct in issue is directed, as well as the nature of the remedy sought. It relied on the remarks of the plurality in Butcher (at [36]-[37]), where Gleeson CJ, Hayne and Heydon JJ said:

The alleged representation made

[36]    The relevant class addressed. Questions of allegedly misleading conduct, including questions as to what the conduct was, can be analysed from two points of view. One is employed in relation to “members of a class to which the conduct in question [is] directed in a general sense”. The other, urged by the purchasers here, is employed where the objects of the conduct are “identified individuals to whom a particular misrepresentation has been made or from whom a relevant fact, circumstance or proposal was withheld”; they are considered quite apart from any class into which they fall. Adoption of the former point of view requires isolation by some criterion or criteria of a representative member of the class. To some extent the trial judge adopted the former approach, pointing out that the class - potential home buyers for Pittwater properties in a price range exceeding $1 million - was small (as suggested by the fact that only 100 brochures were printed), and its members could be expected to have access to legal advice.

[37]    The former approach is common when remedies other than those conferred by s 82 (or s 87) of the Act are under consideration. But the former approach is inappropriate, and the latter is inevitable, in cases like the present, where monetary relief is sought by a plaintiff who alleges that a particular misrepresentation was made to identified persons, of whom the plaintiff was one. The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone. So here, it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known. Indeed, counsel for the purchasers conceded that the mere fact that a person had engaged in the conduct of supplying a document containing misleading information did not mean that that person had engaged in misleading conduct: it was crucial to examine the role of the person in question.

(Domino’s emphasis, citations omitted.)

199    Domino’s also relied upon the remarks of French CJ in Campbell (at [24]-[28]), where his Honour said:

[24]    The question whether conduct is misleading or deceptive or likely to mislead or deceive within the meaning of s 42 of the Fair Trading Act is logically anterior to the question whether a person has suffered loss or damage thereby for the purposes of s 68. The distinction between characterisation of the conduct and determination of the causation of the claimed loss said to result from it must be maintained. In so saying, it is necessary to acknowledge that there may be practical overlaps in the resolution of these logically distinct questions. The characterisation of conduct may involve assessment of its notional effects, judged by reference to its context. The same contextual factors may play a role in determining causation.

[25]    Characterisation is a task that generally requires consideration of whether the impugned conduct viewed as a whole has a tendency to lead a person into error. It may be undertaken by reference to the public or a relevant section of the public. In cases of misleading or deceptive conduct analogous to passing off and involving reputational issues, the relevant section of the public may be defined, according to the nature of the conduct, by geographical distribution, age or some other common attribute or interest. On the other hand, characterisation may be undertaken in the context of commercial negotiations between individuals. In either case it involves consideration of a notional cause and effect relationship between the conduct and the state of mind of the relevant person or class of persons. The test is necessarily objective.

[26]    This court has drawn a practical distinction between the approach to characterisation of conduct as misleading or deceptive when the public is involved, on the one hand, and where the conduct occurs in dealings between individuals on the other. In the former case, the sufficiency of the connection between the conduct and the misleading or deception of prospective purchasers “is to be approached at a level of abstraction not present where the case is one involving an express untrue representation allegedly made only to identified individuals.” Where the conduct is directed to members of a class in a general sense, then the characterisation enquiry is to be made with respect to a hypothetical individual “isolate[d] by some criterion” as a “representative member of that class”. In the case of an individual it is not necessary that he or she be reconstructed into a hypothetical, “ordinary” person. Characterisation may proceed by reference to the circumstances and context of the questioned conduct. The state of knowledge of the person to whom the conduct is directed may be relevant, at least in so far as it relates to the content and circumstances of the conduct.

[27]    In Butcher v Lachlan Elder Realty Pty Ltd the approach to characterisation of conduct directed to identified individuals was set out in the joint judgment of the majority as follows:

“The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone. So here, it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.”

Although this passage begins by referring to the need to establish a causal link between the impugned conduct and the claimed loss, it is clear that thereafter their Honours were addressing the task of characterisation.

[28]    Determination of the causation of loss or damage may require account to be taken of subjective factors relating to a particular person’s reaction to conduct found to be misleading or deceptive or likely to mislead or deceive. A misstatement of fact may be misleading or deceptive in the sense that it would have a tendency to lead anyone into error. However, it may be disbelieved by its addressee. In that event the misstatement would not ordinarily be causative of any loss or damage flowing from the subsequent conduct of the addressee.

(Domino’s emphasis, citations omitted.)

200    Domino’s cited Middleton v AON Risk Services [2008] WASCA 239 at [21] where, in the context of characterising whether a statement is one of fact or belief, McLure JA explained:

Whether or not a statement is one of fact or opinion depends upon all the relevant circumstances known to the representee, including the form in which the statement is made and the personal knowledge or likely personal knowledge of the person making the statement.

In that case Buss JA also said (at [80]):

Thus, whether a statement is or conveys a representation of fact or opinion depends upon all of the relevant circumstances, including the facts known to the recipient or representee, the form and subject matter of the statement, and the actual and likely personal knowledge of the maker of the statement or representor.

The applicant also relied upon Middleton.

201    Domino’s then turned to develop the contentious part of its argument. Using the example of a public advertisement, it submitted that in the case of such conduct directed to the public or part of the public, practical necessity informs the basis for departing from the requirement to characterise the conduct by reference to the individuals to whom the relevant conduct was directed. It accepted that, in such circumstances, the nature of the relief claimed and the causal chain may necessarily require that characterisation be undertaken at a level of abstraction. But it said that in the case of identified individuals there is no such necessity and the Court is able to assess whether the conduct is likely to mislead or deceive in light of the objective circumstances, which include the known characteristics of the individuals concerned.

202    Domino’s argued that, in the circumstances of the present case, the state of knowledge of each franchise operator is important to whether the conduct is properly understood to be a statement of fact or of opinion/belief on the part of Domino’s and to the characterisation of the conduct. On its argument, the characterisation of the conduct vis-à-vis each franchise operator will take on a complexion determined not only by the franchise operator’s own personal commercial acumen and experience, but also by their actual dealings with Domino’s, and Domino’s and the individual franchise operator’s mutual understanding about matters relevant to the conduct’s characterisation.

203    Domino’s relied on the finding in Australian Competition and Consumer Commission v Breast Check [2014] FCA 190 at [105] (Barker J), and it said that in the present case there are “different, albeit perhaps not extensive, circumstances” that may be considered to exist from one franchise operator to another, and that in such circumstances it is not appropriate to effectively aggregate all franchise operators and say that they are a relevant section of the public. In reliance on the remarks of Barker J, it said that in the circumstances of this case such a description is “too loose” for the purposes of the ACL. Domino’s submitted that in the present case the appropriate inquiry is not by reference to the notional effect of Domino’s conduct on a hypothetical ordinary or reasonable member of the class of persons to whom the conduct was directed, but by reference to its effect on individual identified franchise operators.

204    In support of that argument, Domino’s noted that there is likely to be a diversity of individual circumstances, knowledge and sophistication across the cohort of franchise operators, including in respect of their education, training, business experience, length of time over which they had operated a Franchise Store, the number of stores they operated, and the size and complexity of the Franchise Store(s) they operated having regard to turnover and staffing requirements. It further argued that it can readily be inferred that all franchise operators knew that Domino’s and the SDA agreed annual increases to wage rates on the understanding that the Agreements applied to the employees of franchise operators. It also argued that it can readily be inferred that many franchise operators knew that the FWO had, from time to time, examined whether franchise operators’ employees were being paid their correct entitlements and resolved those claims by finding that the Agreements applied.

205    It submitted that because of the ongoing relationships that existed between it and each franchise operator, which varied over time, the whole of the circumstances relevant to each individual franchise operator must be considered in assessing whether there has been a contravention in respect of the conduct directed to that franchise operator.

206    Domino’s was, though, confronted by the difficulty that many single judge and appellate decisions have held that questions as to whether conduct directed to a class of persons is likely to have conveyed a representation, and how that conduct should be characterised, must be undertaken at a level of abstraction through the prism of an ordinary or reasonable member of the class. It sought to distinguish the decision in Gill v Ethicon Sàrl (No 5) [2019] FCA 1905, in which Katzmann J characterised the alleged misleading conduct by reference to the classes of persons to whom the conduct was directed, rather than to identified individuals within the class. It noted that her Honour found that there were two relevant sections of the public or class to whom the representations were made, being “medical practitioners, principally gynaecologists and urogynaecologists” and “women suffering from stress urinary incontinence and/or pelvic organ prolapse” (at [3552]), and that her Honour characterised the representations as misleading or deceptive by reference to those two classes.

207    Domino’s accepted that it was open to Katzmann J to take that course, but argued that the facts in Gill were different to the facts in the present case because franchise operators are not members of the public, and are instead individuals who were “directly and personally engaged with” the alleged conduct; and also because the conduct relied on in this case is not marketing conduct.

208    Accordingly, so Domino’s submitted, the Court should focus the questions as to whether the alleged representations were conveyed by its conduct and as to whether the conduct should be characterised as misleading or deceptive by reference to each particular franchise operator and their personal commercial acumen and experience, their knowledge, their actual dealings with Domino’s, and the mutual understanding between Domino’s and the franchise operators about matters relevant to the characterisation of the impugned conduct. And it said the same applied to all other franchise operators

5.1.2    Consideration

209    I do not accept Domino’s submissions.

210    In Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8; 277 CLR 186 at [80]-[83] Kiefel CJ, Gageler J (as his Honour then was), Gordon, Edelman and Gleeson JJ explained as follows:

[80]    The principles are well established. Determining whether a person has breached s 18 of the ACL involves four steps: first, identifying with precision the “conduct” said to contravene s 18; second, considering whether the identified conduct was conduct “in trade or commerce”; third, considering what meaning that conduct conveyed; and fourth, determining whether that conduct in light of that meaning was “misleading or deceptive or … likely to mislead or deceive”.

[81]    The first step requires asking: “what is the alleged conduct?” and “does the evidence establish that the person engaged in the conduct?” The third step considers what meaning that conduct conveyed to its intended audience. As in this case, where the pleaded conduct is said to amount to a representation, it is necessary to determine whether the alleged representation is established by the evidence. The fourth step is to ask whether the conduct in light of that meaning meets the statutory description of “misleading or deceptive or … likely to mislead or deceive”; that is, whether it has the tendency to lead into error. Each of those steps involves “quintessential question[s] of fact”.

[82]    The third and fourth steps require the court to characterise, as an objective matter, the conduct viewed as a whole and its notional effects, judged by reference to its context, on the state of mind of the relevant person or class of persons. That context includes the immediate context - relevantly, all the words in the document or other communication and the manner in which those words are conveyed, not just a word or phrase in isolation - and the broader context of the relevant surrounding facts and circumstances. It has been said that “[m]uch more often than not, the simpler the description of the conduct that is said to be misleading or deceptive or likely to be so, the easier it will be to focus upon whether that conduct has the requisite character”. That said, the description of the conduct alleged and identified at the first step should be sufficiently comprehensive to expose the complaint, because it is that conduct that will ultimately, as a whole, be determined to be or not to be misleading or deceptive.

[83]    Where the conduct was directed to the public or part of the public, the third and fourth steps must be undertaken by reference to the effect or likely effect of the conduct on the ordinary and reasonable members of the relevant class of persons. The relevant class of persons may be defined according to the nature of the conduct, by geographical distribution, age or some other common attribute, habit or interest. It is necessary to isolate an ordinary and reasonable “representative member” (or members) of that class, to objectively attribute characteristics and knowledge to that hypothetical person (or persons), and to consider the effect or likely effect of the conduct on their state of mind. This hypothetical construct “avoids using the very ignorant or the very knowledgeable to assess effect or likely effect; it also avoids using those credited with habitual caution or exceptional carelessness; it also avoids considering the assumptions of persons which are extreme or fanciful”. The construct allows for a range of reasonable reactions to the conduct by the ordinary and reasonable member (or members) of the class.

(Emphasis added. Citations omitted.)

211    There the High Court explained, in terms, that in cases of alleged misleading or deceptive conduct in which the impugned conduct is directed to the public or a section of the public:

(a)    the third step - determining the meaning that the impugned conduct is likely to have conveyed to its intended audience; and

(b)    the fourth step - determining whether the impugned conduct (in light of the meaning found to have been conveyed) meets the statutory description of misleading or deceptive or likely to mislead or deceive,

must be undertaken by reference to the effect or likely effect of the conduct on the ordinary and reasonable members of the relevant class of persons.

212    Contrary to Domino’s submissions, the authorities provide a clear distinction between the proper approach when the impugned conduct is directed in a general sense to the public or a section of the public, and the approach when the conduct is directed to an identified individual or individuals: see Puxu at 198-9; Campbell at [26]. When the impugned conduct is directed to the public or a section of the public, it is established that the necessary inquiries must be approached at a level of abstraction. In such circumstances the Court must consider the likely characteristics of the persons who comprise the class to whom the impugned conduct is directed, isolate a hypothetical ordinary or reasonable member of the class by some criterion (including by the objective attribution of characteristics), and determine what was conveyed by reference to what was likely to be conveyed to that hypothetical individual. Then the Court must decide whether, as an objective matter, that conduct considered as a whole and in context should be characterised as misleading or deceptive or likely to mislead or deceive, having regard to its likely effect on the state of mind of that hypothetical individual and disregarding reactions to the conduct that might be regarded as extreme or fanciful: Campomar at [101]-[105]; Campbell at [26]; Google at [7]; Self Care at [83].

213    In this context, the phrase “a section of the public” does not have a special meaning and it means or includes a group or class of persons identifiable by some criterion: .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424; 207 ALR 521 at [18] (Finkelstein J), upheld on appeal in Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 324; 139 FCR 215 at [24]-[26] (Wilcox, Heerey and Nicholson JJ); Self Care at [83].

214    The impugned conduct in this case comprises materially uniform conduct directed to a class of franchise operators and prospective franchise operators, and it is not based on individualised conduct or communications with identified individual franchise operators. For example, the alleged Franchise Representations (or in the alternative, the alleged Franchise Opinion Representations) (as later defined) are alleged to arise from Domino’s provision of standard form materials and services to all franchise operators and prospective franchise operators or to a substantial subset of them.

215    The materially uniform conduct by Domino’s is alleged to have conveyed uniform express and implied representations to franchise operators in general, the gist of which was that the Agreements governed the terms and conditions of employment of all Delivery Drivers and In-Store Workers employed by franchise operators and provided for the rates of pay which it was lawful for franchise operators to pay their employees, which were representations of present fact or, in the alternative, representations of opinion. Then, configuring of the Payroll Services and computer systems and engaging in the Compliance and Audit Activities (together comprising the Franchise Conduct as later defined) are also alleged to be “across-the-board” activities addressed to all or a substantial subset of franchise operators, and are alleged to give rise to uniform rather than individualised implied representations of fact (or alternatively, opinion). None of the alleged conduct or alleged representations are individualised or bespoke or otherwise tailored to the particular circumstances of individual franchise operators. This is not a case in which similar, but separate and distinct, representations were made to a group of individuals, such that it is appropriate to examine each individual representation in the hands of each member of the group.

216    Domino’s submitted that an individualised approach is necessary in the circumstances of the case because there were “different, albeit perhaps not extensive, circumstances that may be considered to exist from one statement relied on by the applicant to another, from one franchise operator to another”. Relatedly, it submitted that the “ongoing relationships between Domino’s and each franchise operator, which also varied temporally” meant that it was necessary to consider the whole of the circumstances relevant to each particular franchise operator in determining what was conveyed and in assessing whether there had been a contravention of s 18.

217    The authorities are, though, replete with examples in which it is likely that the target audience included persons who might be expected to have different reactions to the impugned conduct because of their particular circumstances, and yet the authorities show that representations to the public or a section of the public must be approached at a level of abstraction. Here, Domino’s impugned conduct was plainly directed to the franchise operator class rather than to any identified individual or individuals.

218    Further, there is no evidence that individual franchise operators possessed individualised or special knowledge regarding the applicability of the Agreements or the Award. Domino’s did not adduce evidence sufficient to show any widespread material difference in the individual circumstances of franchise operators, or any relevant distinction in the ongoing relationships between Domino’s and its franchise operators, which was likely to affect a franchise operator’s understanding of the meaning conveyed by the impugned conduct. Indeed, Domino’s accepted that the relevant differences in circumstance between franchise operators were “perhaps not extensive”.

219    Domino’s submissions also skip over the fact that, whether Domino’s conduct was directed to a class of persons or to identified individuals, the assessment as to whether that conduct is misleading or deceptive remains objective. Even when a representation is made to an identified individual it is not necessary, as part of the liability inquiry, to establish that the individual was in fact misled.

220    Finally, even if Domino’s could establish that it had individualised communications with franchise operators about, for example, the applicability of the Agreements to that franchise operator’s employees (which it did not) the position would be the same. It would remain necessary to decide what meaning was conveyed by Domino’s conduct by reference to the likely effect of the conduct on the hypothetical ordinary or reasonable member of the class, and the characterisation of that conduct must also be undertaken, as an objective matter, having regard to its likely effect on the state of mind of that hypothetical individual, disregarding reactions to the conduct that might be regarded as extreme or fanciful. That is so because conduct by Domino’s which may not be likely to mislead or deceive a franchise operator with whom it had individualised dealings, may nevertheless be likely to mislead or deceive a reasonable member of the class of franchise operators who had not had any relevant individualised dealings with it.

221    At base, Domino’s erroneous submissions are grounded in its conflation of characterisation of the impugned conduct with the requirement for the applicant to establish causally connected loss. Characterisation of the impugned conduct as misleading or deceptive or likely to mislead or deceive is “logically anterior to the question whether a person has suffered loss or damage thereby”, and the distinction between characterisation of the conduct and determination of the causation of the loss said to result from it must be maintained (although there may be practical overlaps in the resolution of those logically distinct questions): Campbell at [24], approved in TPG Internet at [49].

222    While a finding that a representation made to a class of persons is likely to mislead an ordinary or reasonable member of that class will generally be sufficient to establish a contravention of s 18, it does not follow that all members of the class to whom the representation was directed will be entitled to relief. When dealing with causally connected loss, account may be taken of subjective factors relating to a particular individual’s reaction to conduct found to be misleading or deceptive or likely to mislead or deceive. For example, a representation to a class may have a sufficient tendency to lead members of the affected class into error and give rise to causally connected loss, but be disbelieved by an individual within the class and therefore not be relied upon by that person and consequently not be causative of loss: Campbell at [28]. To recover any compensation each member of the class will need to establish that they suffered loss “because of” the contravening conduct: Williams v Toyota Motor Corp Australia Ltd (Initial Trial) [2022] FCA 344 at [231] (Lee J).

223    Properly understood, the remarks in Butcher (at [36]-[37]) and Campbell (at [24]-[28]), upon which Domino’s relied, do not support its contention that, where monetary relief is sought, it is inevitable that the characterisation of the impugned conduct must be made by reference to identified individuals (in this case, individual franchise operators). The critical difference between the present case and the decisions in Butcher and Campbell is that the alleged representations in those cases were made to identified individuals, whereas this case is concerned with representations directed to a class of persons.

224    In Australian Securities and Investments Commission v Dover [2019] FCA 1932; 140 ACSR 635 the respondent made similar arguments to those advanced by Domino’s. Justice O’Bryan noted that the issue in dispute in Campbell ultimately concerned whether the plaintiff was misled and suffered loss as a result of the impugned conduct. His Honour said (at [104]), and I agree, that understood in that context nothing said by French CJ in Campbell (at [26]-[28]) supported the respondent’s argument. As O’Bryan J noted, the discussion by French CJ at [27] and [28]:

…concerns the proof of loss and damage by reason of the misleading conduct, which will often involve proof that the individual concerned was misled and suffered loss by acting in reliance on the misleading conduct. Those paragraphs provide no assistance to the defendants in this case.

(Emphasis added.)

I take the same view in the present case.

225    Domino’s submitted that in cases where advertisements were published to the public at large the characterisation inquiry could properly be undertaken at a level of abstraction, but it argued that that approach was not appropriate in the circumstances of the present case. That contention is contrary to a raft of decisions at first instance and intermediate appellate level. It is sufficient to note two of them.

226    In Gill, the applicant brought a class action seeking damages on behalf of herself and a class of women who alleged that the respondents’ conduct in releasing and marketing urogynaecological medical devices for surgical implantation, without proper disclosure or warning as to the risk of complications and their gravity, constituted misleading or deceptive conduct. The representations were alleged to have been conveyed to two classes of persons:

(a)    to medical practitioners who surgically implanted the medical devices, principally gynaecologists and urogynaecologists, conveyed through the instructions for use that Ethicon Sàrl provided to accompany the devices; and

(b)    to the women suffering from stress urinary incontinence and/or pelvic organ prolapse who went on to have the medical device implanted, conveyed through brochures Ethicon Sàrl published and provided to the medical practitioners and to the women.

Justice Katzmann held that it was appropriate to determine what representations were conveyed, and whether the representations were misleading or deceptive, by reference to the effect of the conduct on an ordinary or reasonable member of those two distinct classes of persons (at [3552]).

227    On appeal, in Ethicon Sàrl v Gill [2021] FCAFC 29; 387 ALR 494 (Gill (FC)) (Jagot, Murphy and Lee JJ), Ethicon contended that Katzmann J misapplied the statutory test and erred in finding that its conduct was misleading or deceptive in circumstances where her Honour did not have evidence of the surrounding facts and circumstances of the supply of each device in Australia. It contended that it was necessary for Ms Gill to establish the effect of the alleged representations on individual medical practitioners, and she had not done so: Gill (FC) at [790]. The Full Court rejected that argument and held that:

(a)    in circumstances where the representations were made to a class of persons, the characterisation exercise required consideration of a notional cause and effect relationship between the conduct and the state of mind of the relevant person or class of persons, which was necessarily objective (at [798]); and

(b)    it was important to remain alive to the distinction between the characterisation task and the causation inquiry, noting that the first task is logically anterior to the second (at [799]).

Special leave to appeal that decision was refused by the High Court.

228    Gill cannot be distinguished on the basis that the representations in the present case were not made to the public at large. The representations in Gill were made to a section of the public (the women) and also to a class of specialist medical practitioners. There is no principled basis to treat representations conveyed to a class of franchise operators any differently from representations conveyed to a class of specialist medical practitioners.

229    Nor do I accept:

(a)    Domino’s attempt to distinguish Gill on the basis of the asserted diversity of individual circumstances, knowledge and sophistication across the cohort of franchise operators, who were in an ongoing relationship with Domino’s. In Gill, there was a diversity of the individual circumstances of the women in the class in relation to the complexity or difficulty in treating their urogynaecological problems, and a diversity in the knowledge, experience or competence of the treating specialists in relation to implanting the relevant medical devices. Nevertheless, at first instance and on appeal the Court approached the characterisation of the impugned conduct having regard to the likely effect of the impugned conduct on the ordinary or reasonable member of each relevant class.

(b)    Domino’s submission that the difference between the present case and Gill is that franchise operators were “directly and personally engaged” with the impugned conduct. First, the evidence does not show that franchise operators were, in fact, “directly and personally engaged” in the impugned conduct other than as recipients of the alleged representations. Second, the decision in Gill cannot be distinguished on that basis. In Gill the class of medical practitioners who implanted the relevant medical devices could be said to be “directly and personally engaged” in the impugned conduct. The central allegation was of a failure to warn of risks of complications by Ethicon Sàrl, in circumstances where the treating specialists had their own obligation to warn patients of the risks of complications.

230    Domino’s reliance on the decision in Breast Check was also misconceived. That case concerned alleged misrepresentations made by a breast health checking service in promoting and providing breast health checks to its customers. Justice Barker noted (at [101]) that each customer of the respondent received a separate communication at a separate point in time, following the provision of a breast imaging service to that particular customer, which included a breast health report tailored to their particular circumstances, and found that there was no single piece of conduct or representation made to all members of that class. His Honour held (at [105]) that in the circumstances of that case it was not appropriate to characterise the respondent’s conduct through the prism of representations made to the asserted class of customers of the breast health checking service.

231    That case is plainly distinguishable from the present case. Here, the alleged conduct involved Domino’s providing uniform documents to a class of franchise operators and prospective franchise operators, engaging in uniform Compliance and Audit Activities and Payroll Services and configuring its Payroll Services and computer systems “across the board”. Here, the communications were directed to the franchise operator class or to a significant cohort of the class. They were made at the same time, and none of the documents or activities relied upon were tailored to the individual circumstances of any identified individual.

232    I am satisfied that in the circumstances of the present case the Court’s task in determining:

(a)    whether Domino’s impugned conduct conveyed one or more of the alleged representations; and

(b)    if so, whether the representations found to have been conveyed are properly characterised as constituting misleading or deceptive conduct or conduct likely to mislead or deceive,

must be undertaken having regard to the likely effect of the impugned conduct on the hypothetical ordinary or reasonable member of the franchise operator class.

5.2    The pleading dispute

233    In another iteration of its contention regarding representations to a class, Domino’s submitted that the first occasion upon which the applicant contended that the Court should characterise the impugned conduct by reference to the reasonable franchise operator was in the applicant’s written opening submissions. Domino’s contended that if the applicant wished to make that contention he was required to plead it, and he had failed to do so.

234    Domino’s further argued that it was evident from the applicant’s abandoned amendment application (to insert a proposed new paragraph 34B into the 2FASOC) that the applicant had not isolated the necessary criterion that he said was common to all franchise operators and by which a reasonable class member could be identified for the purpose of assessing whether such a class member would or might be misled or deceived by the impugned conduct.

235    Domino’s submitted that if such a criterion or criteria had been advanced by the applicant as the basis of such a characterisation, it would have needed to have been pleaded, and it was not. It relied upon the remarks of French J (with whom Beaumont and Finkelstein JJ agreed) in Johnson Tiles (at [63]), where his Honour said:

The touchstone of liability [under s 18] is the conduct by act or omission of Esso and its characterisation as misleading or deceptive. The analysis of the statement of claim must begin by identifying the conduct and the facts relied upon to give it that character.

236    It also relied upon Taylor v Lederman [2013] VSC 99 at [25], where Ferguson J (as her Honour then was) said:

[A] defendant is entitled to know how the case is put against them. To this end, a plaintiff must specify in its pleading what particular conduct is alleged to be misleading or deceptive and it must also plead facts which constitute the circumstances in which the conduct occurred such that it is alleged that the statutory provisions have been contravened.

237    Domino’s submitted that it would be unfair if the applicant was to belatedly seek to advance a criterion or criteria by which he said the conduct alleged may be characterised by reference to a class rather than by reference to individual franchise operators. It also contended that the applicant’s attempt to assert that Domino’s was on notice, prior to the parties’ openings, that he would invite the Court to undertake the characterisation task on that basis should also be rejected, relying upon the remarks in All Class Insurance Brokers v Chubb Insurance [2021] FCA 782; 154 ACSR 78 at [122] (approving his earlier remarks in White v Overland [2001] FCA 1333 at [4]), where Allsop CJ said that the practice of leaving “footprints” at directions hearings as to how a case was to be put should be firmly discouraged.

238    I do not accept Domino’s submissions.

239    First, it is sufficiently clear from the 2FASOC that the applicant advanced the proceeding on his own behalf and on behalf of the group members on the basis of representations alleged to have been conveyed to a class of franchise operators and prospective franchise operators rather than to any identified individuals. The 2FASOC did not use the word “class” but the defined terms “Franchise Operators” and “Prospective Franchise Operators” referred to a substantial cohort of people who met that description during the Relevant Period. As previously noted in relation to the Franchise Representations and Franchise Opinion Representations, the proceeding alleged (2FASOC [28], [28A], [28B], [28C], [29], [29A], [29B], [29C] and [29D]) that Domino’s provided standard form documents to all franchise operators and/or prospective franchise operators in the Relevant Period, and, in respect of some categories of documents, to all franchise operators undergoing induction training. It further alleged (2FASOC [30], [30A]) that the representations conveyed by the provision of those documents were uniform in nature rather than individualised, and were conveyed to all franchise operators and prospective franchise operators in the Relevant Period.

240    The applicant’s personal claim made allegations based on Domino’s provision of documents to Dominoids and/or MC Pizza and/or their directors (e.g. 2FASOC [49A] and [50F]), but that conduct is pleaded “as part of” the conduct that conveyed the Franchise Representations and Franchise Opinion Representations to all franchise operators (e.g., 2FASOC [50] and [50A]).

241    Relatedly, the Common Questions, which were set well before trial, are not addressed to individualised representations. The relevant Common Questions concern representations alleged to have been made to all franchise operators and prospective franchise operators during the Relevant Period. For example, Common Question 3 in relation to the Franchise Representations asks the following:

3.    In all the circumstances, by providing any (or any combination) of the Pleaded Information to Franchise Operators and/or to Prospective Franchise Operators, did Domino’s make the Franchise Representations pleaded at:

(a)    2FASOC [30(aa)]

(b)    2FASOC [30(a)]

(c)    2FASOC [30(b)]

(d)    2FASOC [30(c)]

(e)    2FASOC [30(d)]

(f)    2FASOC [30(e)]

and, if so, what particularised conduct constituted those representations?

242    The same is true in relation to Common Question 4 regarding the Franchise Opinion Representations. Those questions confirm that the issue as to whether Domino’s impugned conduct conveyed the alleged representations was to be decided by reference to the likely effect of the impugned conduct on the franchise operator class rather than by reference to individual franchise operators.

243    It is sufficiently clear from the 2FASOC that the claim was advanced on the basis of alleged representations made to the franchise operator class.

244    Further, it has long been the law that in cases involving alleged representations to the public or a section of the public the Court’s task in determining whether the representations were conveyed by the impugned conduct, and whether it is appropriate to characterise any representations found to have been conveyed as misleading or deceptive, must be undertaken by reference to the likely effect of the impugned conduct on an ordinary or reasonable member of the target audience.

245    That is a proposition of law which was not required to be pleaded. Rule 16.02(3) of the Federal Court Rules 2011 (Cth) provides that a pleading may raise a point of law, but that is clearly permissive rather than mandatory: Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV [2024] FCAFC 152 at [9] (Jackman J, Markovic J agreeing at [1], Rofe J agreeing at [2]). Here, the 2FASOC pleaded the relevant material facts, and it was not necessary for the applicant to plead the proper approach to characterising the impugned conduct. Ordinarily, assertions of law need not be pleaded, except by way of clarification of a case already pleaded by reference to material facts: Allstate Life Insurance Co v ANZ Banking Group [1994] FCA 636; 217 ALR 226 at 235 (Beaumont J).

246    Second, the main purposes of pleadings include giving notice to the other party of the case it has to meet, so the other party is not taken by surprise. That purpose must also be understood in the context of contemporary case management techniques, including pre-trial exchange of evidence, pre-trial case management hearings and written opening submissions, which leave little opportunity for surprise or ambush at trial. The result is that in the modern era a more robust and less technical or restrictive approach to pleadings is appropriate: see Barclay Mowlem Construction Ltd v Dampier Port Authority and Another [2006] WASC 281; 33 WAR 82 at [4]-[7] (Martin CJ); Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13] (Greenwood, McKerracher and Reeves JJ).

247    In this case, the Common Questions were set two months before trial and after considerable debate; the applicant’s evidence was filed well before trial; the Court Book comprising the documents that could be tendered was agreed and filed before trial; and the applicant’s opening written submissions were filed two weeks before trial. In opening written submissions, the applicant argued:

[18]    It is critical before embarking on an analysis of the representations the applicant alleges were made by the respondent to consider the characteristics of the audience to which they were made.

[19]    The tendency of the conduct or representation to mislead or deceive is to be considered or tested against the ordinary or reasonable members of the class to whom the representation was made, or the conduct directed: Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380 at [336]-[342] (Yates J).

[20]    Here, the impugned representations were directed at a class of persons, namely the franchise operators, and not at specified individuals. Williams v Toyota Motor Corporation Australia Ltd (Initial Trial) [2022] FCA 344 at [227]-[231] and [251]-[262] (Lee J). Once the effect of the impugned conduct on the hypothetical reasonable or ordinary member of the class of franchise operators has been determined, the issue of whether the conduct had the character of being misleading will have been “determined for the class, that is, the whole class”. Bodum v DKSH Australia Pty Ltd [2011] FCAFC 98; (2011) 280 ALR 639 at [206] (Greenwood J, with whom Tracey J agreed at [272]); Williams v Toyota Motor Corporation Australia Ltd (Initial Trial) [2022] FCA 344 (Lee J) at [227]-[231] and [251]-[262]…

[21]    The question whether the representations made here were likely to mislead or deceive is to be answered by reference to an “ordinary” or “reasonable” member of the class of prospective franchise operators and franchise operators. There are characteristics of the class of franchise operators which are relevant to any assessment of how that class as the intended audience of Domino’s representations would have understood those representations.

(Emphasis added. Footnotes added into text.)

248    That made the applicant’s position clear. Domino’s written opening submissions, filed a week later, advanced an alternative case. It submitted that the Court’s task in deciding whether the impugned conduct conveyed the alleged representations, and assessing whether that conduct was misleading or deceptive, was required to occur “on a franchise operator by franchise operator basis”. Having regard to the authorities, I have concluded that that proposition was wrong. To my mind, the true position is not that Domino’s suffered procedural unfairness because of the asserted deficient pleadings of the applicant, but that it took a view of the law which did not prevail.

249    Third, Domino’s contended that it suffered procedural unfairness because the applicant had not isolated the necessary criterion or criteria that he said were common to all franchise operators by which a reasonable hypothetical class member could be identified.

250    I do not accept that. As explained by five members of the High Court in Self Care (at [83]), “[t]he relevant class of persons may be defined according to the nature of the conduct, by geographical distribution, age or some other common attribute, habit or interest. It is necessary to isolate an ordinary and reasonable ‘representative member’ (or members) of that class”. Here, the pleadings and the relevant Common Questions made it sufficiently clear that the impugned conduct was said to be directed to all franchise operators and/or prospective franchise operators during the Relevant Period. Domino’s complaint was at a more granular level. Domino’s argued that it suffered procedural unfairness because the applicant did not plead the characteristics that he contended should be attributed to the reasonable franchise operator. In particular, it objected to the applicant’s opening submissions to the effect that Domino’s was a large and commercially sophisticated franchisor, whereas the franchise operators were relatively smaller and less commercially sophisticated than Domino’s.

251    In written opening submissions, the applicant submitted:

[22]    Domino’s revenue from royalties, franchise service and supplier fees was $326m in the financial year ending 1 July 2018. Domino’s status as a large and commercially sophisticated franchisor is part of the factual context within which the franchise operators received the representations made by Domino’s. The franchise operators were, in contrast, small and far less sophisticated commercial operators than their Franchisor:

(a)    As at 1 July 2018, there were approximately 733 franchised stores in Australia and New Zealand, with 50 being added to the Domino’s network that financial year.

(b)    Of the 50 new stores added to the Domino’s network in the financial year ending 1 July 2018, 96% were opened by existing franchisees or their employees, and many franchise operators (including Belinda Smith of Dominoids), come up from the shop floor.

(c)    Franchise operators were not large corporates. They were entities which typically operated only one or two franchises. During the relevant period, approximately 56% of franchise operators operated a single store, while about 78% operated one or two stores. Only about 7% of franchise operators operated 3 stores, and about 4% operated 4 stores. Only 19 franchise operators in total operated more than 10 stores during the relevant period.

(d)    Franchise stores enjoy only modest profits. For example, in FY16, the average annual profit of a Domino’s franchise store was $137,000. In FY17, after paying all wages, average franchisee EBITDA was $241,000 and the average EBITDA per store was $134,000. Moreover, in FY17, 45 stores were unprofitable and received assistance.

[23]    Franchise operators were typically small businesses. As can be seen from the above, more than half of all franchise operators run a single franchised store, and very few operated three or more at the same time. In short, the audience which received the misrepresentations in question was constituted by relatively small, inexperienced and potentially unsophisticated small business operators.

252    Each of those asserted facts was sourced in publicly available documents, being Domino’s FY2018 Annual Report and Full Year Results Presentation or in Domino’s records in the Court Book, which the parties called “Store Transaction Records”. None of that information was out of the blue. All that was new was that the applicant had gone through Domino’s 2018 Annual Report to get some detail about Domino’s size, and had gone through the Store Transaction Records to tabulate how many franchise operators owned more than one Franchise Store, from which he made a number of submissions.

253    The matters the applicant asserted in opening submissions about the characteristics of the reasonable franchise operator were just submissions. They were not required to be pleaded. And the parties’ different positions regarding the commercial sophistication of franchise operators were not new. In a case management hearing on 25 August 2022, which centrally concerned the Common Questions, Mr Harris, Senior Counsel for Domino’s, said (T26:1-10):

Mr Harris:    Well, it may be that the actual characteristics of the individual franchise operator are important to your Honour’s analysis, or they may not be. That will have to be a matter for trial.

    …

Some of these stores are very substantial sophisticated businesses, your Honour. So one franchise operator may understand from a particular document compared to another the impact of disclaimer or all kinds of things, your Honour, could be relevant…

254    Later in the case management hearing, the following exchange took place with counsel for both sides (T31:20-45):

Ms Doyle:    So your Honour might, for example, say “with respect to those who were users of the DBS system, I find that the same representation about pay rate was made every week and acted upon by all those who engaged with the system because of its high degree of automation. However, with respect to those who were the target of the Audit Activities, I make the following findings and I wait for another day as to who they were with respect to those who were the target of the compliance activities. I find that all those who engaged received this form letter which means they received a representation of the same kind”. So in our respectful submission, the answer will come out and will flesh it out. One doesn’t need to craft a [common] question to drive the result because - - -

His Honour:    Whether a piece of conduct constitutes an implied representation can involve an analysis of - will involve analysis - definitely - conduct to a class - a broad class of franchise operators will involve an analysis of the characteristics of the group.

Mr Harris:        Yes.

His Honour:    It won’t involve at that point an analysis of any individual. So, for example, if I accept what Mr Harris says, which sounds correct, that there will be some sophisticated operators and then there will be some quite unsophisticated operators. The answer might be different. Might.

Ms Doyle:    We would say almost impossible to be different with respect to a Payroll Service. But with respect to other matters, possibly.

(Emphasis added.)

255    In that exchange, although the transcript of my remarks at the case management hearing (which was conducted on Microsoft Teams) appears incomplete, Mr Harris accepted that the necessary analysis in the case would include an analysis of the characteristics of a broad class of franchise operators.

256    Further, I do not accept that Domino’s suffered procedural unfairness because the applicant did not plead that many franchise operators ran small-to-medium size franchise businesses and were potentially unsophisticated. Had Domino’s wished to contest the applicant’s submissions about the commercial sophistication of franchise operators it would have been straightforward for it to make submissions about those matters and refer to those aspects of the documents which supported its position. Further, I informed Mr Harris that if Domino’s wished to call some evidence about the sophistication of franchise operators he could. There was plenty of time for Domino’s to do so. In my view, it did not do so because it was contrary to its proposition that whether its conduct conveyed the alleged representations was required to be assessed on an individual franchise operator by franchise operator basis rather than by reference to a hypothetical ordinary or reasonable franchise operator.

257    Fourth, there is little force in Domino’s submission that the applicant’s application to amend the 2FASOC so as to plead the characteristics of franchise operators showed a recognition of the deficiencies in the pleading.

258    The true position is that, on the first day of the hearing (2 November 2022) and in the course of the applicant’s oral opening, Mr Harris flagged an objection to the applicant’s written opening submissions at [18]-[20] (extracted above). Similarly to the submissions set out previously, Domino’s contended that it was not open to the applicant to invite the Court to characterise Domino’s impugned conduct by reference to an ordinary or reasonable member of a class of franchise operators. Alternatively, if that was open, Domino’s submitted that the applicant was required to plead it, and he had not (T50:40-T51:5). Relatedly, Domino’s objected to the applicant’s reliance on the Store Transaction Aide Memoire (MFI #A1) prepared from Store Transaction Records that were said to show how many and what percentage of franchise operators owned more than one Franchise Store.

259    In oral opening, Ms Doyle, Senior Counsel for the applicant, relied on the observations of Lee J in Williams at [229], where his Honour said:

Where, as here, the impugned conduct is directed to the public generally, or a section of the public, the question of whether the conduct is “likely to mislead or deceive” must be approached at a level of abstraction. The Court must consider the likely characteristics of the persons who comprise the relevant class to whom the conduct is directed, and the likely effect of the conduct on ordinary or reasonable members of the class, disregarding reactions that might be regarded as extreme or fanciful.

(Citations omitted. Emphasis added.)

260    Ms Doyle said that the applicant’s principal position was that there was no requirement to plead out the likely characteristics of the persons who made up the relevant class and deciding the attributes of the hypothetical ordinary or reasonable franchise operator was a matter for the Court. Ms Doyle said, however, that she would give the issue more thought (T99:5-25). On the third day of the hearing (4 November 2022), Ms Doyle said that the applicant was still considering the position, but it remained the applicant’s primary position that he was not required to plead out the characteristics of the class. I told counsel that that was also my preliminary view, but asked: “Why you would chance your arm on that?” (T238:30-31). In response, Ms Doyle said that the applicant would give a response as to whether or not to make an application for leave to amend on the following day of the hearing (after the weekend).

261    On the Monday of the following week (the fourth day of the hearing), Ms Doyle informed the Court that the applicant had decided to seek leave to amend to plead and particularise the likely characteristics of the franchise operator class, the application to amend had been served on Domino’s, and the applicant sought to have the application heard when Domino’s had had time to consider the application. The proposed amendment particularised the specific characteristics of the class of franchise operators which were the subject of the applicant’s written opening submissions. The applicant, however, maintained the primary submission that the amendment was not necessary to bring those matters to the attention of Domino’s, which had been put on notice in written opening submissions (T316:5-24).

262    The application for leave to amend came on for hearing on 10 November 2022. After being taken through the background to the application I told counsel for the applicant that I did not consider the amendments to be necessary, as the pleading was sufficiently clear. I told counsel for Domino’s that if Domino’s wished to call evidence about the sophistication of franchise operators it could (T624:18-25). Domino’s made a forensic choice in not taking up that opportunity.

263    I should also note that the pleadings dispute regarding what level of sophistication to attribute to the ordinary or reasonable franchise operator assumed a significance that, in my view, it did not have. To my mind, a franchise operator that owned a single Franchise Store was running a small-to-medium-size business and had to have enough initiative, commercial nous and acumen to buy that business for a not insignificant sum (usually $400-500,000) and then run the business. And those franchise operators who had the capacity to run multiple Franchise Stores were likely to have a high level of commercial nous and acumen. I doubted that anyone in the class would be naïve or completely unsophisticated in commercial matters. In that sense, Domino’s concern about the applicant’s pleading as to the likely level of sophistication of franchise operators, was overstated.

6.    THE CONDUCT AT ISSUE

264    The first stage of the necessary inquiry under s 18 of the ACL is to precisely identify the conduct that is alleged to meet the statutory description of conduct which is misleading or deceptive or likely to mislead or deceive.

265    There are two main parts to the conduct at issue.

266    First, that during the Relevant Period, Domino’s provided franchise operators and prospective franchise operators with four categories of documents, namely:

(a)    the Franchise Information (2FASOC [28]);

(b)    the Franchise Agreement Documents (2FASOC [28B]);

(c)    the Franchise Disclosure Documents (2FASOC [28C]); and

(d)    the Compliance Information (2FASOC [29], [29A], [29B], [29C] and [29D]),

together, the Pleaded Information. It is alleged that Domino’s provision of those documents to franchise operators and prospective franchise operators conveyed representations of fact (the Franchise Representations (2FASOC [30])) or, in the alternative, representations of opinion (the Franchise Opinion Representations (2FASOC [30A])).

267    It should be kept in mind that although some of the Pleaded Information was provided to prospective franchise operators, any representations arising from the provision of those documents are only relevant in the proceeding if that prospective franchise operator went on to execute a sub-franchise agreement and employed Delivery Drivers or In-Store Workers. It is only if a person became such a franchise operator that any representations Domino’s made to them become relevant to the case.

268    Second, that during the Relevant Period, Domino’s engaged in conduct, being the Compliance and Audit Activities (as defined in 2FASOC [32]), the provision of the Payroll Services (as defined in 2FASOC [33]), and provision and configuration of the Payroll Services and its computer systems as alleged; together, the Franchise Conduct. It is alleged that by engaging in the Franchise Conduct, Domino’s conveyed:

(a)    three implied representations of fact to franchise operators (the Franchise Conduct Implied Representations (2FASOC [34])); and, in the alternative,

(b)    three implied representations of opinion to franchise operators (the Conduct Opinion Implied Representations (2FASOC [34A])).

269    I deal first with the conduct alleged to have conveyed the Franchise Representations or alternatively the Franchise Opinion Representations.

7.    THE CONDUCT ALLEGED TO CONVEY THE FRANCHISE REPRESENTATIONS, OR ALTERNATIVELY THE FRANCHISE OPINION REPRESENTATIONS

270    Common Questions 1 and 1A concern whether Domino’s provided the alleged documents to some or all franchise operators during the Relevant Period, and Common Question 2 concerns whether the documents included a disclaimer.

271    The first three categories of documents referred to above (the Franchise Information, Franchise Agreement Documents and Franchise Disclosure Documents) were provided to prospective franchise operators.

272    It should be understood that the parties defined “prospective franchise operator” differently. Domino’s defined it to mean persons applying to become a franchise operator. The applicant defined it to mean both persons applying to become a franchise operator and also existing franchise operators seeking to renew a sub-franchise agreement or extend its scope. I have adopted the applicant’s definition as that seems more consistent with the Franchising Codes (defined below). Little, however, turns on that.

273    As I will explain, there is no material disagreement between the parties as to Domino’s provision of these categories of documents.

7.1    The Franchise Information

274    It is alleged (2FASOC [28] and [29]), and Domino’s admitted (AD [28]), that since no later than 1999 Domino’s was required to provide certain information to prospective franchise operators (which I defined as the Franchise Information) which complied with the Trade Practices (Industry Codes - Franchising) Regulations 1998 (Cth) (Pre-2015 Code) and the Franchising Code of Conduct found in schedule 1 to the Competition and Consumer (Industry Codes - Franchising) Regulation 2014 (Cth) (2015 Code) (collectively, the Franchising Codes).

275    The applicant further alleged that, in compliance with its obligations under the Franchising Codes, Domino’s provided documents to prospective franchise operators during the Relevant Period which included the Franchise Information. Domino’s admitted that it was obliged to provide the Franchise Information to prospective franchise operators and that during the Relevant Period it discharged that obligation.

276    I conclude that, during the Relevant Period, Domino’s provided the Franchise Information to all prospective franchise operators. That inference includes Dominoids and MC Pizza.

277    That inference is sufficient, of itself, in relation to the provision of the Franchise Information to Dominoids and MC Pizza, but in any event the evidence shows that:

(a)    on 30 November 2012, Domino’s provided Dominoids with a document titled “Disclosure Document for Sub-Franchisee or Prospective Sub-Franchisee” (the Pre-2015 Code Disclosure Document), which included a series of annexures. Annexure D was the proposed sub-franchise agreement between Domino’s and Dominoids in respect of the North Caboolture Store in the form in which it was to be executed. Annexure K was the Domino’s Pizza Code of Conduct with which Dominoids, the proposed operator, would be required to comply; and

(b)    on 14 September 2016, Domino’s provided MC Pizza with a document titled “Disclosure Document for Sub-Franchisee or Prospective Sub-Franchisee” (2015 Code Disclosure Document), which included a series of annexures. Annexure D was the proposed sub-franchise agreement between Domino’s and MC Pizza in respect of the North Caboolture Store in the form in which it was to be executed. Again, Annexure K was the Domino’s Pizza Code of Conduct with which MC Pizza, the proposed franchise operator, would be required to comply.

278    I now turn to set out the parts of the Franchise Information upon which the parties relied.

7.1.1    The Pre-2015 Code Disclosure Document

279    The applicant relied on cl 22.3(a) of the Pre-2015 Code Disclosure Document provided by Domino’s to prospective franchise operators, which stated:

Approved Sub-Franchisee Structure

The following is the policy of the Master Franchisee in relation to the acceptable corporate structures for a Prospective Sub-Franchisee or Multi Unit Sub-Franchisee.

…

It is a non-waiverable requirement that all Domino’s sub-franchisees operate via an incorporated entity. This is especially so to ensure that each sub-franchisee has the legal jurisdiction to becoming party (at their election) to any enterprise bargaining agreement that may be entered into with the SDA for the employment of store staff.

(Emphasis added.)

280    Domino’s also relied on the following disclaimer in the Pre-2015 Code Disclosure Document:

You should make your own enquiries about the Sub-Franchise and about the business of the Sub-Franchise.

The Master Franchisee strongly recommends that you have the Sub-Franchise Agreement explained to you by a lawyer experienced in franchising and also that you obtain independent accounting and business advice on the sub-franchise proposition from an accountant/business advisor experienced in franchising before signing the Sub-Franchise Agreement.

(Emphasis in original.)

281    Annexure K to the Pre-2015 Code Disclosure Document was a document titled Domino’s Pizza Code of Conduct, to which the proposed franchisee was required to agree. Domino’s relied on cl 2.3.1 of the Domino’s Pizza Code of Conduct, which stated as follows:

2.3.1    Know the laws and policies that apply to your work

You must have a working knowledge and apply the laws, policies, industrial entitlements and relevant State or Territory road and traffic regulations that apply to your work, including the Code of Conduct.

Managers have a special responsibility to assist employees to understand relevant legislation or policies including specific legal requirements.

All employees are entitled to have access to legislation, policies and industrial instruments such as awards that apply to their work.

7.1.2    The 2015 Code Disclosure Document

282    The applicant identified that the 2015 Code Disclosure Document did not have a clause equivalent to cl 22.3 of the Pre-2015 Code Disclosure Document.

283    Domino’s relied on the following disclaimer in the 2015 Code Disclosure Document under the subtitle “Statement” on the covering page:

You should make your own enquiries about the Sub-Franchise and about the business of the Sub-Franchise.

You should get independent legal, accounting and business advice before signing the Sub-Franchise Agreement.

284    Domino’s also relied on cl 2.3.1 of the Domino’s Pizza Code of Conduct, which was unchanged from the Pre-2015 Code Disclosure Document.

285    The parties also relied upon parts of the standard form sub-franchise agreement. I will deal with those parts under the next category of documents.

7.2    Franchise Agreement Documents

286    The applicant alleged (2FASOC [28B]) that, during the Relevant Period, Domino’s provided franchise operators with documents that were in substantially similar terms as the following:

(a)    the sub-franchise agreement it entered into with Dominoids and MC Pizza on specified dates;

(b)    the Business Sale and Purchase Agreement it entered into with Dominoids and MC Pizza on specified dates; and

(c)    the Store Asset Rental Management Deed it entered into with MC Pizza on a specified date,

(collectively, as earlier defined, the Franchise Agreement Documents).

7.2.1    Sub-Franchise Agreements

287    Domino’s admitted that during the Relevant Period:

(a)    it provided all prospective franchise operators with a proposed sub-franchise agreement in the form in which it was to be executed (AD [28B.1.1.]);

(b)    it provided a proposed sub-franchise agreement to Dominoids in respect of the North Caboolture Store on or about 18 December 2012 (AD [49A(b)]), and to MC Pizza in respect of North Caboolture Store on or about 10 October 2016, and those parties executed those agreements (AD [50F(c)]); and

(c)    the sub-franchise agreements it provided to prospective franchise operators (including franchise operators seeking to renew a sub-franchise agreement or extend its scope) were in substantially the same generic form as those entered into by Dominoids and MC Pizza (AD [28B]).

By definition, each person who became a franchise operator had executed a sub-franchise agreement.

7.2.2    Business Sale and Purchase Agreements

288    Domino’s admitted that during the Relevant Period:

(a)    it provided Business Sale and Purchase Agreements to Dominoids in respect of the North Caboolture Store on or about 18 December 2012 (2FASOC [49A(b)(ii)], AD [49A]), and to MC Pizza in respect of the North Caboolture Store on or about 10 October 2016, and those parties executed those agreements (2FASOC [50F(c)(ii)], AD [50F]); and

(b)    where it provided a Business Sale and Purchase Agreement to a franchise operator, it was in substantially the same generic terms as those it entered into with Dominoids or MC Pizza (2FASOC [28B(b)], AD [28B.1]).

289    While Dominoids and MC Pizza each executed a Business Sale and Purchase Agreement, there is no evidence that all franchise operators executed such agreements.

7.2.3    Store Asset Rental Management Deeds

290    Domino’s admitted that during the Relevant Period:

(a)    it provided MC Pizza with a Store Asset Rental Management Deed on or about 29 August 2016, which the parties executed (2FASOC [50F(a)]; AD [50F]); and

(b)    where it provided a Store Asset Rental Management Deed to a franchise operator, it was in substantially similar generic terms as that it entered into with MC Pizza (AD [28B.1.3]).

There is no evidence that Dominoids executed a Store Asset Rental Management Deed, and no evidence that all franchise operators executed such deeds.

291    I find that prior to and during the Relevant Period Domino’s provided:

(a)    a sub-franchise agreement to all prospective franchise operators (including existing franchise operators seeking to renew a sub-franchise agreement or extend its scope), which were in substantially the same or similar terms; and

(b)    Business Sale and Purchase Agreements and/or Store Asset Rental Management Deeds to some existing franchise operators (where the particular business circumstances required it), which were in substantially the same or similar terms.

292    In my view there is nothing in the Business Sale and Purchase Agreements or Store Asset Rental Management Deeds that could be said to give rise to the alleged representations. They have little relevance in the case.

7.2.4    Sub-Franchise Agreements

293    The applicant relied on the following parts of the standard form sub-franchise agreements. There were some minor variations in the content relied upon between the standard form agreements, and I identify this where relevant:

(a)    Under the heading “Background”:

Background

…

G    You acknowledge that You have read this Agreement and been given an opportunity to obtain clarification of any provision that You did not understand. You also understand and agree that the terms and conditions contained in this Agreement are necessary to maintain DPIF’s high standard of quality and service and the uniformity of those standards at all Domino’s Pizza Stores and thereby to protect and preserve the goodwill of the Marks.

(b)    Clause 1.36 which defined the Domino’s “Operating Manual” (numbered as cl 1.39 in the MC Pizza sub-franchise agreement):

1.36    “Operating Manual” means operating manual, operational bulletins and similar materials containing proprietary know-how, mandatory and suggested specifications, standards and operating procedures and the rules prescribed from time to time by Domino’s or the Master Franchisee, and information relative to the operation of the Store.

(c)    Clause 2.4.2, which related to compliance with enterprise agreements and employment laws, altered slightly over the Relevant Period:

(i)    in the Dominoids sub-franchise agreement (executed 18 December 2012), the clause stated:

2.4.2    [You] [m]ust comply with the terms and conditions of any enterprise bargaining agreement or other workplace agreement to which the Master Franchisee is a party in respect of its corporate store employees.

(ii)    in the later MC Pizza sub-franchise agreement (executed 10 October 2016), the clause stated:

2.4.2    [You] [m]ust comply with any Australian employment laws and regulations and the terms provided under any relevant industrial instrument.

(d)    The evidence shows that cl 2.4.2 was in the same form as the Dominoids sub-franchise agreement until at least 23 December 2014, as shown by a sub-franchise agreement executed by Shree Shiridi Pty Ltd on that date.

(e)    Clause 11.1.1, which provided:

11    TRAINING

11.1    Initial Training

11.1.1    You (or the Director, Controlling Shareholder or Partner if You are a corporation or partnership and, if so, the Director, Controlling Shareholder or Partner may substitute a designated individual) must enrol and complete all training programs and classes which the Master Franchisee require for the operation of a Domino’s Pizza Store.

(Emphasis added.)

(f)    Clause 15, in which there were some small, immaterial differences over the Relevant Period:

15    RECORDS AND REPORTS

15.1    Bookkeeping and Recordkeeping

You agree to establish a bookkeeping and recordkeeping system conforming to the requirements prescribed by the Master Franchisee, relating, without limitation, to the use and retention of daily sales slips, coupons, purchase orders, purchase invoices, payroll records, check stubs, bank statements, value added tax records and returns, cash receipts and disbursements, journals and general ledgers, as well as any bookkeeping and recordkeeping systems required by applicable law.

15.2    If the Sub Franchisee fails to provide to the Master Franchisee any information detailed in clause 15 then the Sub-Franchisee agrees to allow the Master Franchisee to appoint a qualified accountancy advisor to the Sub-Franchised Operation.

…

15.5    Sales Reports and Financial Statements:

You agree to submit to the Master Franchisee:

15.5.1    with the Royalty Fee due, a weekly report of the Sales of the Store and all other information and supporting records as the Master Franchisee may require.

…

15.5.5    such other information as the Master Franchisee may reasonably require to determine You and the Owners’ compliance with this Agreement or to assist You in the operation of the Store or to otherwise evaluate the performance of the Store.

15.6    Right to Require Audit

The Master Franchisee reserves the right to audit or cause to be audited the sales reports, financial statements and tax returns You are required to submit to the Master Franchisee.

…

15.9    Financial Information and Record Keeping:

15.9.1    The Master Franchisee (or its Agent) may in its absolute discretion elect to assume any and/or all of your obligations to keep books of account, records, finance and accounting systems and related obligations set out in clauses 15.1 and 15.2 and 15.3.

(Emphasis added.)

(g)    Clause 16:

Operating Requirements

…

16.5    Operating Manual

…

16.5.2    You will conduct the Sub Franchised Operation in accordance with the Operating Manual as modified by the Master Franchisee from time to time and the mandatory specifications, standards and operating procedures and rules prescribed from time to time by the Master Franchisee. You acknowledge that compliance with the Operating Manual, specifications, standards, operating procedures and rules is an essential and fundamental term of this Agreement.

…

16.5.7    You acknowledge the necessity and importance of all specifications and standards for the overall performance of the obligations set forth herein. You agree to use and apply the Domino’s System as described herein and as set forth in the Operating Manual and any specifications, standards, rules and procedures.

(Emphasis added.)

(h)    Clause 19, in which there were also some small, immaterial differences over the Relevant Period:

19    TERMINATION

19.1    Termination for breach - special circumstances

…

19.2.1    [cl 19.2.1 of the Dominoids franchise agreement and cl 19.2 of the MC Pizza franchise agreement] In addition to all other rights of the Master Franchisee to terminate this Agreement, the Master Franchisee can terminate this Agreement by delivering a Breach Notice to You if any of the following occur and is not remedied within a reasonable time (not exceeding 30 days) after the Master Franchisee has given You reasonable notice of the default or in the time otherwise identified in this clause:

…

19.2.14    [of the MC Pizza franchise agreement]: [In addition to all other rights of the Master Franchisee to terminate this Agreement, the Master Franchisee can terminate this Agreement by delivering a Breach Notice to You if …] You or any of the Owners fail to comply with any other material provisions of this Agreement, or the Operating Manual or any specification, standard or operating procedure, and You fail to correct this failure within 30 calendar days (or such longer period as nominated by the Master Franchisee in writing) after written notice is delivered to You.

19.2.15    [of the Dominoids franchise agreement]: You or any of the Owners fail to comply with any other material provisions of this Agreement, or the Operating Manual or any specification, standard or operating procedure, and You fail to correct this failure within thirty (30) calendar days after written notice is delivered to You…

(Emphasis added.)

(i)    Schedules of fees payable by franchise operators to Domino’s:

SCHEDULE 12

“ROYALTY FEE” [means] An amount equal to seven per centum (7%) of Sales.

SCHEDULE 13

“MARKETING CONTRIBUTION” [means] An amount equal to a maximum of six per centum (6%) of Sales

…

SCHEDULE 16:

“SPECIAL CONDITIONS”

SC1    ROYALTY FEE [in the Dominoids SFA]

The Royalty Fee will be an amount equal to 5% of Sales for the first 12 months commencing on the Date of Commencement.

The Royalty Fee will then revert to the standard rate of 7% of Sales commencing on the first anniversary of the Date of Commencement unless otherwise agreed in writing by the parties.

SC2     LOCAL STORE MARKETING [in the Dominoids SFA]

The Master Franchisee will provide to the Sub-Franchisee an amount of $833.33 each month for the first 12 months commencing on the Date of Commencement, which must be used for the purposes of Local Store Marketing which has been approved by the Market Manager and is to be arranged through Domino’s Direct for the Store.

…

SCHEDULE 19

“LEASE LIABILITY FEE”

An amount equal to five per centum (5%) of weekly rental and outgoings

294    In addition to those parts of the sub-franchise agreements upon which the applicant relied, Domino’s relied upon the following:

(a)    Clause 2.4.3, which provided that a franchise operator could:

2.4.3    Request and give authority to the Master Franchisee, effective immediately:

(a)    to act in relation to any letters of demand and logs of claim made by any relevant union or employee representative on the Sub-Franchisee and in any proceedings in the Australian Industrial Relations Commission which deal with the making of a dispute finding in relation to the letter of demand and log of claim; and

(b)     to act as agent for and on behalf of and in the name of the Sub-Franchisee in making an agreement with any relevant union and in having the agreement certified by the Australian Industrial Relations Commission.

(b)    Clause 16.2.1, which provided that a franchise operator agreed, among other things, to:

…operate the Store in full compliance with all applicable laws, ordinances and regulations.

7.2.5    Prior Representations Deeds

295    The evidence shows that Domino’s also provided a document titled “Prior Representations Deed” (PR Deed) to both Dominoids and to MC Pizza prior to their entering into their respective sub-franchise agreements. Dominoids executed its PR Deed on 18 December 2012 and MC Pizza executed its PR Deed on 10 October 2016. These were included as Schedule 20 in the sub-franchise agreements of both Dominoids and MC Pizza. The applicant did not rely upon the provision of a PR Deed for the alleged representations.

296    Domino’s relied on the following parts of the PR Deed:

2.    Representations

2.1    Exhaustive record

You and the Guarantors warrant and declare that all Representations upon which you and/or the Guarantors relied or may have relied in entering into the Franchise Agreement and/or the Associated Franchise Documentation are exhaustively recorded in:

(a)    the Franchise Agreement and the Associated Franchise Documentation. and

(b)    the schedule or the answers to the Questionnaire that comprise annexure A.

2.2    No other Representations made

You and the Guarantors warrant and declare that no Representations have been made by us, or our Associates other than those referred to in clause 2.1.

2.3    Specific denial of certain Representations

Without derogating from clause 2.2, you and the Guarantors specifically deny that any Representations have been made by us, our Agents, or our Associates, Authorised Representatives to you, your Agents, or Authorised Representatives, other than those referred to in clause 2.1, with regard to:

(a)    the historical, present or future turnover of the Business or any other franchised business;

(b)    the historical, present or future income or profit or profitability of the Business or any other franchised business;

(c)    population or business statistics in the area in which the Premises are situated covered by the Franchise Agreement;

(d)    the suitability, or aptitude or ability of you or the Guarantors to own or operate the Business;

(e)    the suitability of the equipment which we recommend be used to conduct the Business;

(f)    the success or economic viability of the Business;

(g)    the overheads or costs of goods sold or any other costs of the Business or any other franchised business;

(h)    the ratios of turnover to costs or any other ratios;

(i)    the value of the Business;

(j)    the existence or location of any competitor or proposed competitor;

(k)    the market for services proposed to be sold by the Business;

(l)    the number of customers the Business is likely to attract; and

(m)    the saleability of the Business or the price for which it might be sold.

2.4    No reliance

You and the Guarantors warrant and declare that in entering into the Franchise Agreement and the Associated Franchise Documentation:

(a)    the only Representations relied upon by you and the Guarantors were the Representations referred to in clause 2.1

(b)    they did not rely upon any other Representations, and in particular without limitation, did not rely on any Representations of the kind referred to in clause 2.3;

(c)    they relied upon their own and legal, accounting and financial advice and their own investigations into the viability of the Business; and (d) that if there are any verbal representations that have been made by us or our agents upon which you or the Guarantors have relied then they have been reduced to writing in the schedule to this Deed or the Questionnaire.

…

7.    Independent Advice

You and the Guarantors warrant that:

(a)    we have advised you and the Guarantors to obtain, and you and the Guarantors:

(a)    have taken independent legal, accounting and/or business advice; or

(b)    have chosen not to take independent legal advice notwithstanding our recommendation, as to the nature, effect and extent of this Agreement, the Franchise Agreement and the Associated Franchise Documentation;

(b)    you and the Guarantors are aware that we are relying upon the warranty contained in paragraph (a) of this clause in executing the Franchise Agreement and the Associated Franchise Documentation.

297    As Domino’s submitted, those franchise operators who entered into the standard form Prior Representations Deed warranted:

(a)    that all representations they had relied on in entering into their sub-franchise agreements and other related documentation were exhaustively recorded in that documentation, and that no other representations had been made or were relied on; and

(b)    that Domino’s had advised them to obtain, and that they had taken, independent legal advice, or had chosen not to take independent legal advice notwithstanding Domino’s recommendation, as to the nature, effect and extent of the sub-franchise agreement and other related documentation, and that they were aware that Domino’s was relying on that warranty in executing the sub-franchise agreement and other related documentation.

7.3    Franchise Disclosure Documents

298    It is alleged that prior to and during the Relevant Period, Domino’s provided documents to franchise operators (the Franchise Disclosure Documents) (2FASOC [28C]) which are alleged to have been in the same or substantially similar terms to the Pre-2015 Code Disclosure Document provided to Dominoids on or around 30 November 2012, and the 2015 Code Disclosure Document provided to MC Pizza on or around 14 September 2016.

299    Domino’s admitted that during the Relevant Period:

(a)    it provided the pleaded Franchise Disclosure Documents to every franchise operator at a time when it was a prospective franchise operator in relation to that franchise (AD [28A.1]);

(b)    by definition, every franchise operator executed a sub-franchise agreement, although Domino’s said that the form of that agreement may have differed from time to time, especially in relation to clause 2.4.2; and

(c)    the Franchise Disclosure Documents it provided to prospective franchise operators were in substantially the same generic terms as the Disclosure Documents it provided to Dominoids and MC Pizza.

300    Domino’s denied that all of the documents listed by the applicant as Franchise Disclosure Documents were required to be disclosed to prospective franchise operators pursuant to the Franchising Codes, but nothing turns on any difference between what was required to be disclosed and what was actually disclosed. What is important is that there is no dispute that Domino’s provided the Franchise Disclosure Documents to all prospective franchise operators during the Relevant Period and that they were in substantially the same generic terms.

301    In relation to Dominoids and MC Pizza, Domino’s admitted that it provided Dominoids and MC Pizza with a Disclosure Document on 30 November 2012 and 14 September 2016 respectively. It admitted the Disclosure Documents included a copy of the sub-franchise agreement in the form in which it was to be executed, and a copy of the Domino’s Pizza Code of Conduct that the franchisee would be required to acknowledge and agree.

302    I infer that during the Relevant Period Domino’s provided the Franchise Disclosure Documents to all prospective franchise operators in substantially the same generic terms.

7.4    The Compliance Information

303    I now turn to deal with the fourth category of Pleaded Information, the Compliance Information, which Domino’s is alleged to have provided to franchise operators during the life of their sub-franchise agreements.

304    The 2FASOC alleged that since no later than 30 April 2012, Domino’s provided information and training to franchise operators, including information in relation to prevailing employment laws and compliance with industrial obligations (Compliance Information) (2FASOC [29]), which comprised the documents pleaded in 2FASOC [29B], [29C] and [29D].

305    The Compliance Information falls into three broad categories:

(a)    information and policy documents that Domino’s is alleged to have uploaded to DOTTI and thereby made available to franchise operators from the date of upload to the end of the Relevant Period. Some of those same documents are also alleged to have been sent to franchise operators by email;

(b)    Pay Rate Notices that Domino’s is alleged to have sent to franchise operators via email; and

(c)    training modules that Domino’s uploaded to DOTTI and thereby made available to franchise operators from the date of upload to the end of the Relevant Period, and training documents that were provided to new franchise operators in hardcopy or on DOTTI as part of their induction training.

306    As I explain in more detail below, there is no material disagreement between the parties as to Domino’s provision of these categories of documents to franchise operators. Domino’s admitted that, during the Relevant Period, it provided each of the alleged types of document to some franchise operators but contended that the evidence does not show that it provided them to all franchise operators. As I will explain, I consider it reasonable to infer that Domino’s provided the most important documents to the applicant’s case to all franchise operators, and that it provided other important documents to a significant subset of franchise operators.

307    I now go to each of the documents comprising the Compliance Information, and make findings as to whether Domino’s provided that document to all franchise operators or only to some of them. I then set out the parts of those documents relied upon by one or other of the parties, including any disclaimer.

7.4.1    The Fair Work Laws Training Materials

308    The 2FASOC alleged that Domino’s uploaded three documents to DOTTI (the Fair Work Laws Training Materials) and thereby made them available to target groups including the “Franchisee/RL target group” (comprising franchise operators) and “Regional Leaders” (comprising individuals who oversaw either multiple Franchise Stores operated by the same franchise operator or multiple Corporate Stores operated in the same region) until the end of the Relevant Period, and also provided some of those documents to franchise operators by email. Domino’s admitted that the Franchisee/RL target group included franchise operators, and it made no suggestion that that group excluded any existing franchise operators at any particular point in time. I infer that documents that Domino’s made available to the “Franchisee/RL target group” on DOTTI were available to all existing franchise operators in Australia throughout the Relevant Period.

309    First, the 2FASOC alleged that on the dates specified, Domino’s uploaded to DOTTI and made available to target groups, including the Franchisee/RL target group, until the end of the Relevant Period, the following Fair Work Laws Training Materials:

(a)    on 2 May 2012, a PowerPoint presentation titled “Fair Work Laws - Australia” dated 30 April 2012 (Fair Work Training Presentation) and, from an unknown date until the end of the Relevant Period, that presentation as a training module (2FASOC [29B(b)]);

(b)    on 2 May 2012, a document titled “Fair Work Laws - Australia, Domino’s Pizza Franchisee Training Guide” dated 2 May 2012 (Workplace Laws Training Manual) (2FASOC [29B(b)]); and

(c)    on 28 October 2014, a PowerPoint presentation titled “Fair Work Laws: Franchisee Orientation Program” dated 20 May 2014 (2FASOC [29D(c)]).

310    Second, the 2FASOC alleged that on 2 May 2012, Domino’s sent the Fair Work Training Presentation and the Workplace Laws Training Manual by email to all existing franchise operators (2FASOC [29D(a)]), to the email addresses of each franchise operator’s primary contacts (primary franchisees) and to any relevant franchise operator’s secondary contacts that had been advised to Domino’s.

311    The email under cover of which Domino’s sent those documents (2 May 2012 Training Email) was sent by Domino’s Learning and Development Coordinator. It relevantly said:

Dear all,

From 1 July 2009, most Australian workplaces are governed by a new system created by the Fair Work Act 2009. From 1 January 2010, most employers and employees who were previously covered by state workplace relations laws are under the national workplace relations system.

To assist our Franchisees with understanding the new Fair Work requirements we have put together some training materials which are now available on DOTTI (attached). This information covers the requirements in relation to the National Employment Standards, record keeping requirements, employee leave entitlements and so forth.

The Fair Work Laws Manual and the Fair Work Laws Training Presentation can be found in DOTTI at Manual and Files - Employee Relations - Fair Work laws Training. There is also a mandatory training module in DOTTI under Your Training - Leadership Training - Fair Work Laws Training.

If you have any questions regarding this training, please contact training@Domino’s.com.au.

If you have any questions regarding the Fair Work Laws, please contact either the Fair Work Info Line on 13 13 94, or Domino’s Industrial Relations Advisor at tim.vanschyndel@Domino’s.com.au.

(Emphasis added.)

312    It is noteworthy that the sub-franchise agreements required each franchise operator to “arrange an email address to which [Domino’s] is able to communicate” and required each franchise operator to “ensure that the email account remains active, does not become full and is able to receive email at all times” (cl 2.17.4). The evidence is that the email distribution lists were set up to contain the email addresses of all primary franchise operators but, occasionally, if requested, secondary contacts were added to the distribution list. It is appropriate to infer that the email distribution list that Domino’s used to send the Fair Work Laws Training Materials to franchise operators was comprehensive and reasonably accurate.

313    Third, and overlapping in part with the earlier allegations, the 2FASOC alleged that Domino’s provided the following training materials to new franchise operators during their induction training (2FASOC [29D(b)]):

(a)    after 2 May 2012, the Fair Work Training Presentation;

(b)    after 2 May 2012, the Workplace Laws Training Manual;

(c)    after 20 May 2014, the Fair Work Laws: Franchisee Orientation Program; and

(d)    after 8 September 2016, a PowerPoint presentation titled “Industrial Relations Facts: Australia” dated 20 May 2014 (the Industrial Relations Facts Presentation).

314    Domino’s admitted that conduct. Specifically, it admitted that:

(a)    it uploaded the following documents to DOTTI on the dates specified, which I infer made those documents available to all franchise operators until the end of the Relevant Period:

(i)    on 2 May 2012, the Fair Work Training Presentation and the Workplace Laws Training Manual (AD [29B.4]-[29B.5]);

(ii)    on an unknown date, the Fair Work Training Presentation as a training module (AD [29B.4]); and

(iii)    on 28 October 2014, the Fair Work Laws: Franchisee Orientation Program (AD [29B.6]);

(b)    on 2 May 2012 it sent the Fair Work Training Presentation and the Workplace Laws Training Manual by email to all existing franchise operators at that time (AD [29D.3]); and

(c)    from the following dates it provided the following training materials to new franchise operators during their induction training (AD [29D(b)]):

(i)    after 2 May 2012, the Fair Work Training Presentation;

(ii)    after 2 May 2012, the Workplace Laws Training Manual;

(iii)    after 20 May 2014, the Fair Work Laws: Franchisee Orientation Program; and

(iv)    after 8 September 2016, the Industrial Relations Facts Presentation.

315    Domino’s also admitted to uploading the Fair Work Training Presentation as a training module and that it remained available to franchise operators until the end of the Relevant Period, but the date of its uploading is not pleaded. Having regard to the 2 May 2012 Training Email, I consider it appropriate to infer that Domino’s uploaded that training module for franchise operators on or around 2 May 2012. The email referred to “a mandatory training module in DOTTI under Your Training - Leadership Training - Fair Work Laws Training”, and I infer that referred to the Fair Work Training Presentation uploaded as a training module.

316    In relation to the Fair Work Training Presentation and the Workplace Laws Training Manual, I am satisfied that Domino’s provided those documents to all franchise operators from 2 May 2012 until the end of the Relevant Period. I say that because:

(a)    Domino’s uploaded the Fair Work Training Presentation and the Workplace Laws Training Manual to DOTTI on 2 May 2012, thereby making them available to all existing franchise operators from that date (in relation to the first document, Domino’s also uploaded it at a later date as a training module). Domino’s made no suggestion that it subsequently removed those documents from DOTTI and I infer that those documents remained available to all new and existing franchise operators from then until the end of the Relevant Period. Domino’s thereby made those documents available to all franchise operators during the Relevant Period;

(b)    on 2 May 2012 Domino’s directly emailed the Fair Work Training Presentation and the Workplace Laws Training Manual to all existing franchise operators, and informed them of a mandatory Fair Work Laws training module that had been uploaded to DOTTI, thereby providing those documents to all existing franchise operators at that time; and

(c)    from 2 May 2012 Domino’s provided the Fair Work Training Presentation and the Workplace Laws Training Manual to all new franchise operators (from that point) during their induction training. Thus, the new franchise operators after 2 May 2012 (who had not received the 2 May 2012 Training Email) were provided with those documents.

317    It seems likely that from 20 May 2014 the Fair Work Laws: Franchisee Orientation Program superseded the Fair Work Training Presentation as the training document provided to new franchise operators. But little turns on that because the relevant PowerPoint slides in the Fair Work Laws: Franchisee Orientation Program substantially replicated the relevant slides in the Fair Work Training Presentation.

318    The inference that Domino’s provided the Fair Work Training Presentation and the Workplace Laws Training Manual to all franchise operators from 2 May 2012 applies to Dominoids and MC Pizza. I note that:

(a)    Domino’s made those documents available on DOTTI to all franchise operators from 2 May 2012 until the end of the Relevant Period. Ms Smith was a franchise operator in that period and she was thereby provided with those documents. Although Dominoids did not commence to operate the North Caboolture Store until December 2012, Ms Smith operated the Beerwah Store (through Sturn Enterprises) from late June 2012. It is reasonable to infer that Ms Smith attended compulsory induction training for either the Beerwah Store or the North Caboolture Store at some point after 2 May 2012 and was provided with the Fair Work Training Presentation and the Workplace Laws Training Manual in the course of her induction training. In any event, Domino’s admitted that it provided those documents to Dominoids and Ms Smith’s training record shows that she downloaded the Fair Work Training Presentation and the Workplace Laws Training Manual on 28 April 2013; and

(b)    Domino’s made those documents available on DOTTI to all franchise operators from 2 May 2012 until the end of the Relevant Period. Mr Glynn and Mr Benson were franchise operators in that period and they were thereby provided with those documents. Further, although MC Pizza did not commence as the franchise operator of the North Caboolture Store until October 2016, Mr Benson and Mr Glynn, its directors and the owners, were operating the Burpengary and Morayfield Store as at 2 May 2012. It is appropriate to infer that Domino’s sent them (or one of them) the 2 May 2012 Training Email, which attached the Fair Work Training Presentation and the Workplace Laws Training Manual. Domino’s accepted this in submissions.

319    In relation to the Fair Work Laws: Franchisee Orientation Program, I am satisfied that Domino’s provided this document to all franchise operators from 28 October 2014 to the end of the Relevant Period. I say that because:

(a)    Domino’s uploaded the Fair Work Laws: Franchisee Orientation Program to DOTTI on 28 October 2014, thereby making it available to all franchise operators from that date. Domino’s made no suggestion that it subsequently removed the document from DOTTI and I infer that it remained available to franchise operators from then until the end of the Relevant Period. Domino’s thereby made this document available to all franchise operators from 28 October 2014 until the end of the Relevant Period; and

(b)    from 20 May 2014, Domino’s provided that document to all new franchise operators during their induction training.

320    That inference applies to Dominoids and MC Pizza. I note that:

(a)    in the period from December 2012 to August 2016, Dominoids was the franchise operator of the North Caboolture Store and Ms Smith was its director and owner. When Domino’s uploaded the Fair Work Laws: Franchisee Orientation Program to DOTTI on 28 October 2014, it thereby provided that document to Dominoids and Ms Smith; and

(b)    in the period from October 2011 to the end of the Relevant Period, MC Pizza was the franchise operator of the Morayfield Store and from 11 October 2016 the franchise operator of the North Caboolture Store, and Mr Glynn and Mr Benson were its directors and owners. When Domino’s uploaded the Fair Work Laws: Franchisee Orientation Program to DOTTI on 28 October 2014, it provided that document to MC Pizza, Mr Benson and Mr Glynn.

321    I find that Domino’s did not provide the Industrial Relations Facts Presentation to all franchise operators. Rather, it provided this document to all new franchise operators from 8 September 2016, as part of their induction training. That finding means that Dominoids and MC Pizza are unlikely to have been provided with this document. They were established franchise operators at and from 8 September 2016 and would not have been required to undergo induction training.

322    I now turn to set out those parts of the Fair Work Laws Training Materials on which the parties relied.

7.4.1.1    The Fair Work Training Presentation

323    The applicant relied on four slides in this presentation.

324    Slide 32 stated:

Our Instrument

The terms and conditions of Domino’s Employees are governed by two Enterprise Bargaining Agreements (EBA). The 2001 agreement provides the conditions for Drivers, and the 2009 agreement for In-stores and Managers.

(Emphasis added.)

325    Slide 33 stated:

Our Instrument - In-Stores & Managers

IN-STORES AND MANAGERS

The wage rates for In-stores are provided by the 2009 EBA which was negotiated with the Union under the Fair Work Act. The rates were agreed and certified by Fair Work Australia. These rates are not transitioning at this stage to the MFFA rates in 2014. The EBA does although come up for renegotiation in 2013.

(Emphasis added.)

326    Slide 34 stated:

Our Instrument - Drivers

DRIVERS

Currently, the wage rates for all Domino’s driver employees are defined into two specific transitioning groups. Which group each individual store falls into is dependent on their interaction with the Fair Work Act Transitional Provisions. Ultimately, all drivers wages are transitioning to the rates provided under the Fast Food Modern Award (MFFA) and will reach this point at the beginning of 2014. How you get there and your starting point is what differs between Category A & B.

327    Slide 35 stated:

Our Instrument - Drivers

DRIVERS

What are Category A and Category B?

Category A is where there is an Enterprise Bargaining Agreement that is currently in effect, and there is an Enterprise Award that underpins that particular business. In this circumstance, unless otherwise negotiated with a Union, the wage rate can be no less than the Federal Minimum Wage (FMW) Rate.

Category B is where there is an Enterprise Bargaining Agreement that is currently in effect, but there is no Enterprise Award but rather, an Industry Award. In this circumstance, the rate is based on the Industry Award rate as set by the relevant State Government for that particular Award, which is then put through a “transitioning calculation”, which is then increased every year until it reaches the Modern Fast Food Award rate in 2014.

328    Beyond the slides on which the applicant relied, it is relevant that slide 37 of the presentation stated:

For More Information…

Refer to:

•    The training guide document “Fair Work Laws - Australia. Domino’s Pizza Training Guide” located in DOTTI - Manuals and Files - Employee Relations - Fair Work Laws Training.

•    The Fair Work Australia website www.fairwork.gov.au

•    The Fair Work infoline on 13 13 94

•    Domino’s Industrial Relations Advisor, Tim Van Schyndel at tim.vanschyndel@Domino’s.com.au.

(Emphasis added.)

329    Domino’s highlighted that slide 36 stated:

If you require information from the Fair Work Ombudsman, you can contact the Fair Work Infoline on 13 13 94 or visit www.fairwork.gov.au

(Emphasis in original.)

330    Domino’s also noted that the final slide of the presentation had the following disclaimer:

Disclaimer

The content of this document is intended as a guide only and in no way constitutes legal advice on behalf of Domino’s Pizza Enterprises Limited. When making any decisions regarding employees, advice should be sought from Fair Work Australia, the Fair Work Ombudsman, or an independent legal advisor.

7.4.1.2    The Workplace Laws Training Manual

331    The applicant relied on the following passages of the Workplace Laws Training Manual:

3.    Our Industrial Instrument

The terms and conditions of Domino’s Employees are governed by two Enterprise Bargaining Agreements (EBA). The 2001 agreement provides the conditions for Drivers, and the 2009 agreement for In-stores and Managers.

DRIVERS

Currently, the wage rates for all Domino’s driver employees are defined into two specific transitioning groups. Which group each individual store falls into is dependent on their interaction with Fair Work Act Transitional Provisions. We term the 2 groups as Category A and Category B.

Ultimately, all drivers wages are transitioning to the rates provided under the Fast Food Modern Award (MFFA) and will reach this point at the beginning of 2014. How you get there and your starting point is what differs between Category A & B.

What are Category A and Category B?

Category A is where there is an Enterprise Bargaining Agreement that is currently in effect, and there is an Enterprise Award that underpins that particular business. In this circumstance, unless otherwise negotiated with a Union, the wage rate can be no less than the Federal Minimum Wage (FMW) Rate.

Category B is where there is an Enterprise Bargaining Agreement that is currently in effect, but there is no Enterprise Award but rather, an Industry Award. In this circumstance, the rate is based on the Industry Award rate as set by the relevant State Government for that particular Award, which is then put through a “transitioning calculation”, which is then increased every year until it reaches the Modern Fast Food Award rate in 2014.

It is important to note that despite the Category A rate which is based on the FMW being less than the Category B rates, come 1 January 2014, all Enterprise Awards will be terminated, resulting in all Category A stores in essence becoming Cat B stores. This means that their wage rates will no longer be based on the FMW but instead, they will be equal to the Modern Fast Food Award.

In-Stores

The wage rates for In-stores are provided by the 2009 EBA which was negotiated with the Union under the Fair Work Act. The rates were agreed and certified by Fair Work Australia. These rates are not transitioning at this stage to the MFFA rates in 2014. The EBA does although come up for renegotiation in 2013.

On 1 January 2014 wage rates will be no less than the Modern Award. The terms and conditions of the employees will continue to be dictated by the 2001/09 EBAs until a party decides to either terminate or renegotiate one of the agreements (as described above). Please note that after 2014, any renegotiations of the EBA’s will need to be compared to the Modern Fast Food Award with what is called the BOOT (Better Off Overall Test).

(Emphasis added.)

332    Domino’s referred to the same parts of the Workplace Laws Training Manual as the applicant, but emphasised the following passages in relation to minimum wages under applicable enterprise agreements and modern awards:

From 1 January 2010, modern awards replaced most existing awards and transitional pay scales, and contain the minimum terms and conditions for employees in particular industries and occupations. While modern awards contain minimum wages, some modern awards have transitional arrangements in place, under which the wage-related components may be phased in over five years.

Employers should check their relevant modern award(s) to determine if transitional arrangements apply. If there are no transitional arrangements, the modern award pay rates applied from 1 January 2010

…

For further information on modern awards, including who is covered by a modern award and the appropriate transitional arrangements, please go to www.fairwork.gov.au.

333    It noted the disclaimer on the front cover of the document, which replicated the terms of the disclaimer in the Fair Work Training Presentation.

7.4.1.3    The Fair Work Laws: Franchisee Orientation Program

334    The applicant relied on a number of slides from the Fair Work Laws: Franchisee Orientation Program, most of which replicated the slides of the Fair Work Training Presentation. Specifically, the applicant relied on slides 32-34 which replicated slides 32-34 of the Fair Work Training Presentation and slides 35 and 36 which replicated slide 35.

7.4.1.4    The Industrial Relations Facts Presentation

335    The applicant relied on seven slides from this presentation.

336    Slide 9 stated:

National Employment Standards (NES)

For more information on the NES please refer to the Fairwork website: https://www.fairwork.gov.au

Or contact the Domino’s Pizza Industrial Team in head office, they can explain any of the NES guidelines or the Domino’s Pizza Enterprise Bargaining Agreement conditions.

337    Slide 19 stated:

DOTTI

Every employee is to be given a DOTTI account for training purposes.

Mandatory training includes:

•    NEO [New employee orientation]

•    Policies & Procedures

…

338    Slide 21 stated:

Wage Rates

The SDA - Domino’s’ Pizza Agreement has minimum wage rates for team members which must be adhered to.* To access the wage rates referred to DOTTI:

Manuals and Files > Employee Relations > National Wage Rates.

* It is permissible to pay wages higher than the minimum level if you wish.

(Emphasis added.)

339    Slide 22 is reproduced below:

340    Slide 49 stated:

Domino’s Industrial Relations Team

We investigate concerns from: Employee; Fair Work Commission; SDA Union; Department of Immigration; DPO; Franchisees.

Everything from underpayment of wages, breaches in VISA conditions, Bullying, Discrimination and Harassment and more.

341    Slide 54 stated:

Domino’s Bookkeeping Service (DBS)

Payroll and bookkeeping complete on your behalf by experience[d] accountants. Allows you to concentrate on the important part of your business, customer service

(Emphasis added.)

342    Slide 56 concluded:

Non-compliance with IR laws can result in large penalty fines and negative media coverage about your store and Domino’s in general

The recent 7Eleven controversy was an example of this.

If you have any doubts about how your current system is working then please contact the Industrial Relations team for assistance.

Alternatively, you may wish to consider getting the Domino’s Bookkeeping Service to handle all your payroll and your IR paperwork.

(Emphasis added.)

7.4.1.5    Whether it is likely that franchise operators read the Fair Work Laws Training Materials

343    As noted above, Common Questions 1 and 1A concern whether Domino’s provided the alleged documents to some or all franchise operators during the Relevant Period, and Common Question 2 concerns whether the documents included a disclaimer. I have dealt with those issues in relation to the Fair Work Laws Training Materials.

344    Domino’s, however, made several submissions directed at showing that the applicant had not established that franchise operators had read the Fair Work Laws Training Materials. Strictly speaking, those submissions go to whether the provision of those documents is likely to have conveyed the alleged representations, but it is convenient to deal with those submissions now, while the contents of the documents and their dissemination by Domino’s are fresh to mind.

345    First, Domino’s submitted that the fact that it had uploaded the Fair Work Laws Training Materials to DOTTI did not show that franchise operators had read them, and it alleged in the AD that they were downloaded from DOTTI by very few franchise operators. In particular, it alleged that:

(a)    the Fair Work Training Presentation was downloaded by approximately 4% of all primary franchisees and secondary contacts;

(b)    the Workplace Laws Training Manual was downloaded by approximately 10% of all primary franchisees and secondary contacts;

(c)    the Fair Work Laws training module on DOTTI was completed by approximately 43% of all primary franchisees and secondary contacts; and

(d)    the Fair Work Laws: Franchisee Orientation Program was downloaded by approximately less than 1% of all primary franchisees and secondary contacts.

346    Second, Domino’s submitted that only those franchise operators who were in existence as at 2 May 2012 could have received the 2 May 2012 Training Email and the attached Fair Work Training Presentation and Workplace Laws Training Manual. Furthermore, it said that whether a franchise operator who received the email then read it and its attachments is another question. It accepted that, in the absence of evidence to the contrary, it is open to be inferred that a document that was received by email was also read. But it submitted that, as pleaded, it would seek to adduce evidence in relation to whether the franchise operators at that time read the 2 May 2012 email (i.e., computer evidence that shows whether an email was read or not).

347    I found little force in those submissions.

348    First, and importantly, the applicant gave unchallenged evidence that it was possible to read a document that had been uploaded to DOTTI in the web browser, without a requirement to download it. I accept that evidence. Further, Domino’s filed an affidavit by Mr Ross, Domino’s Learning System Specialist, in which he deposed as to the level of downloading of documents by franchise operators and Store Managers at the North Caboolture Store during the Relevant Period. He was scheduled to give evidence in the trial, and given his role within Domino’s, I infer that he was in a position to give evidence about how documents could be viewed on DOTTI. That issue was front and centre in the trial, but as it eventuated Domino’s decided not to call Mr Ross, or any other witness, in support of its allegation about the level of downloading of those documents. That left its allegation in the AD about the level of downloading unsupported by any evidence. Accordingly, the extent to which a document was downloaded by franchise operators is not probative in relation to the extent to which franchise operators read those documents.

349    Domino’s made the same contention about the level of downloading in relation to a raft of the documents relied upon by the applicant. The same reasoning applies in relation to those documents.

350    Second, whether or not franchise operators downloaded the Fair Work Training Presentation or the Workplace Laws Training Manual has little significance when, as Domino’s admitted:

(a)    it emailed those documents to all existing franchise operators as at 2 May 2012; and

(b)    from 2 May 2012, it provided those documents to all new franchise operators as part of their induction training (or from 20 May 2014 the successor document, the Fair Work Laws: Franchisee Orientation Program).

Thus, every franchise operator in the Relevant Period was provided with those documents.

351    Third, the fact that on 2 May 2012 Domino’s directly emailed the Fair Work Training Presentation and the Workplace Laws Training Manual to franchise operators does not of itself establish that they read those documents. However, I consider it appropriate to infer that it is more likely than not that all franchise operators read those documents. The following matters are material to my view:

(a)    Domino’s uploaded the Fair Work Training Presentation and the Workplace Laws Training Manual to DOTTI on 2 May 2012, as training documents for the assistance of its franchise operators, and left the documents available on DOTTI until the end of the Relevant Period. Franchise operators are likely to think that Domino’s would not upload training documents for them unless they were important.

(b)    On their face, those documents were important to franchise operators as they addressed matters that were significant to operating their Franchise Stores in accordance with their obligations under the applicable industrial instruments. It will be recalled that it was a requirement of the sub-franchise agreements that franchise operators must comply with the terms and conditions under any relevant enterprise agreement or applicable industrial instrument (see cl 2.4.2).

(c)    On the same date as it uploaded the documents to DOTTI, Domino’s sent the same training documents directly to franchise operators by email, which underlined the fact that Domino’s considered them to be important. Domino’s did so under cover of the 2 May 2012 Training Email, which informed franchise operators that it sent the documents to assist franchise operators “with understanding the new Fair Work requirements” and advised them of a “mandatory” Fair Work Laws Training module on DOTTI.

(d)    Domino’s told franchise operators that the training was mandatory, which further underlined the importance of the documents. As earlier noted, cl 11 of the sub-franchise agreements provided:

TRAINING

11.1 Initial training

11.1.1    You (or the Director, Controlling Shareholder or Partner if You are a corporation or partnership and, if so, the Director, Controlling Shareholder or Partner may substitute a designated individual) must enrol and complete all training programs and classes which [Domino’s] require for the operation of a Domino’s Pizza Store.

…

11.1.4    All training programs and classes must be completed to [Domino’s] satisfaction.

(Emphasis added.)

(e)    Thus, the sub-franchise agreements required franchise operators to conduct their franchise in accordance with the Operating Manual and adhere to all directions issued by Domino’s. Domino’s statement that the Fair Work Laws Training module was “mandatory” was such a direction.

352    In those circumstances, it is more likely than not that all franchise operators who received the 2 May 2012 Training Email and its attachments read them either as attachments to the email or online through DOTTI. Thereafter, until the end of the Relevant Period, Domino’s provided all new franchise operators with those documents (or the Fair Work Laws: Franchisee Orientation Program) as part of their induction training. In circumstances where:

(a)    those persons had newly commenced a franchise involving considerable financial outlay and associated risk;

(b)    the induction training was compulsory under their sub-franchise agreements; and

(c)    the documents concerned matters that were significant to the profitable operation of their Franchise Store,

I consider it to be substantially more likely than not that franchise operators who were provided with those documents read them.

353    Fourth, Domino’s submitted that it would adduce evidence in relation to whether existing franchise operators as at 2 May 2012 read the 2 May 2012 Training Email and its attachments (i.e., computer evidence that shows whether an email was read or not). However:

(a)    in relation to the applicant’s personal claim, Domino’s did not adduce any such evidence in relation to the principals standing behind Dominoids and MC Pizza (Ms Smith, Mr Glynn or Mr Benson) or the relevant Store Managers of the North Caboolture Store; and

(b)    in relation to the Common Questions, Domino’s did not adduce any such evidence in relation to whether or not any existing franchise operator on 2 May 2012 read the email and attachments.

Thus, there is no evidence before the Court that any franchise operator did not read the email and its attachments. For the reasons I have explained, it is reasonable to infer that all franchise operators who were provided with those documents read them.

354    The same can be said of the Fair Work Laws: Franchisee Orientation Program. The following matters are material to my view in this regard:

(a)    Domino’s uploaded the Fair Work Laws: Franchisee Orientation Program to DOTTI on 28 October 2014 as a training document for the assistance of its franchise operators, and it remained available to them on DOTTI until the end of the Relevant Period. Again, most franchise operators were likely to think that Domino’s would not upload a training document for franchise operators unless it thought it was important.

(b)    On its face, the document was important to franchise operators as it addressed matters which were significant to operating their Franchise Store in accordance with their obligations under the applicable enterprise bargaining or industrial instrument. Under their sub-franchise agreements they were required to comply with the terms and conditions under any applicable enterprise agreement or industrial instrument (cl 2.4.2). They were likely to want to read this training document, unless they were already on top of their obligations by reading the Fair Work Laws Training Materials.

(c)    From 20 May 2014 until the end of the Relevant Period, Domino’s provided all new franchise operators with this document as part of their induction training. In circumstances where those persons had newly commenced a franchise involving a considerable financial outlay, the induction training was compulsory under their sub-franchise agreements, and the documents concerned matters which were significant to the profitable operation of their Franchise Store, I consider it to be substantially more likely than not that they read those documents when Domino’s provided them.

It is reasonable to infer that all franchise operators from 28 October 2014 until the end of the Relevant Period read the Fair Work Laws: Franchisee Orientation Program.

7.4.2    Employment Law Compliance Policy

355    The applicant alleged (2FASOC [29B(e)]) that on 8 October 2015 Domino’s uploaded to DOTTI and made available to franchise operators, until on or around 18 July 2017, a document titled “Policy - Employment Law Compliance v1.2” dated 7 October 2015 (Employment Law Compliance Policy Version 1.2). Domino’s admitted that. Thus, there is again no dispute regarding the provision of this document to franchise operators, nor that it remained available to franchise operators on DOTTI in the period specified.

356    Two earlier versions of this policy are also in evidence, dated 17 April 2014 (Employment Law Compliance Policy Version 1) and 28 May 2014 (Employment Law Compliance Policy Version 1.1). The relevant parts of those policy documents are materially the same as Version 1.2 relied upon by the parties.

357    It is reasonable to infer that Domino’s provided Employment Law Compliance Policy Versions 1, 1.1 and 1.2 to all franchise operators in the period from 17 April 2014 to 18 July 2017. Domino’s did not contend to the contrary.

358    That inference includes Dominoids and MC Pizza as they and the natural persons behind them were operating one or more Franchise Stores in that period. In any event, Domino’s admitted it provided those documents to Dominoids and MC Pizza.

359    I now turn to set out the parts of the Employment Law Compliance Policy Version 1.2 relied upon by the parties.

360    The applicant relied upon the following parts of the policy:

(a)    On page 1:

Sub-Franchisees must…pay all employees at a rate not less than the minimum rates provided for under the applicable Domino’s Enterprise Bargaining Agreement (EBA) (where applicable to the employee);

(Emphasis added.)

(b)    On page 2:

If [Domino’s] suspects, has reason to suspect or has clear evidence to support that a Sub-Franchisee is not complying with their obligations under Australian employment law (and therefore the terms of their Sub- Franchise Agreement “SFA”) then, without prejudice to its rights under the SFA, [Domino’s] may take any or all of the following steps:

a)    serve an Investigation Notice on the Sub-Franchisee …;

b)    serve a Notice to Remedy Breach of Sub-Franchise Agreement …:

…

c)    require the Sub-Franchisee to submit to an audit of their employees’ entitlements, such audit to be performed either by DPE or an external auditor.

361    Domino’s relied on the following disclaimers:

(a)    On page 1:

It is the Sub-Franchisee’s sole responsibility to inform themselves of, and comply with, their legal obligations in connection with the employment of team members.

(b)    On page 2:

This Policy is not intended as legal advice. Sub-Franchisees must obtain their own legal, accounting and business advice in connection with the operation of their stores and it is their sole responsibility to maintain compliance with all applicable laws.

7.4.2.1    Whether it is likely that franchise operators read the Employment Law Compliance Policy

362    Again, it is convenient to now address Domino’s arguments to the effect that, although admitting that it uploaded this policy to DOTTI, the applicant did not establish that franchise operators read it.

363    Domino’s stated that it was not established how many, if any, primary franchisees and secondary contacts downloaded this document. For the reasons I have explained, such evidence is not probative of whether franchise operators read the document. They could read the document in the web browser.

364    In my view all franchise operators who operated a Franchise Store between 17 April 2014 and 18 July 2017 and were provided with the document were more likely than not to have read it. The following matters are material to my view:

(a)    Domino’s uploaded the Employment Law Compliance Policy Version 1 to DOTTI on 17 April 2014, followed by two later but materially similar versions, thereby making it available to franchise operators until on or about 18 July 2017. Most franchise operators are likely to think that Domino’s would not upload a policy document for them unless it thought the document was important.

(b)    On its face, the document was likely to be seen as important by many franchise operators as it was titled “Company Policy” in large font on the sidebar, and under their sub-franchise agreements they were required to comply with all Domino’s policies and directions. Further, on its face, the policy was important as it addressed matters that were significant to operating their Franchise Store in accordance with their obligations under the applicable enterprise agreement or industrial instrument. Under their sub-franchise agreements they were required to comply with the terms and conditions under any relevant enterprise agreement or applicable industrial instrument (cl 2.4.2).

(c)    The Employment Law Compliance Policy included the following warning in bold text:

We reiterate that a failure by a Sub-Franchisee to comply with the applicable laws in connection with the store has serious consequences for that store, the Sub-Franchise Agreement and the directors of a Sub-Franchisee personally.

(Emphasis in original.)

(d)    It also provided that where a franchise operator fraudulently represented minimum pay rates to an employee, Domino’s reserved its right to terminate the sub-franchise agreement.

365    That inference applies to Dominoids and MC Pizza and the natural persons standing behind them. Both were operating one or more Franchise Stores between 17 April 2014 and 18 July 2017.

7.4.3    The TANDA Training Materials

366    The applicant alleged (2FASOC [29B(f)-(j), (l)-(p)]) that Domino’s uploaded to DOTTI and made available until the end of the Relevant Period to target groups, including the Franchisee/RL target group and the “Manager target group” (being a group to which employees’ access was controlled by franchise operators), ten documents comprising training materials in relation to the TANDA software (which Domino’s was in the process of introducing, or had introduced as compulsory for all Franchise Stores) (the TANDA Training Materials).

367    The applicant alleged that Domino’s uploaded the following TANDA Training Materials to DOTTI on the dates specified, and thereby made them available to all franchise operators from that date until the end of the Relevant Period:

(a)    on and from 21 November 2016, a PowerPoint presentation titled “Introducing My Domino’s” (My Domino’s and TANDA Training Presentation) (2FASOC [29B(f)]);

(b)    on and from 29 November 2016, a video titled “TANDA - Bookkeeper Webinar” (2FASOC [29B(g)]);

(c)    on and from 12 December 2016, a document titled “TANDA Help Guide - Bookkeepers and Payroll Officers” (TANDA Help Guide) (2FASOC [29B(h)]);

(d)    on and from 16 March 2017, a document titled “New Instructions for the Sales Report - using TANDA” (TANDA - New Instructions for the Sales Report) (2FASOC [29B(i)]);

(e)    on and from 18 May 2017, a document titled “Policy - TANDA Software Implementation” (TANDA Software Policy) (2FASOC [29B(j)]);

(f)    on and from 7 July 2017, a document titled “TANDA Information Kit - May 2017” (TANDA Information Kit) (2FASOC [29B(l)]);

(g)    on and from 18 October 2017, a document titled “Policy - TANDA Timesheet Approvals” (TANDA Timesheet Approvals Policy) (2FASOC [29B(m)]);

(h)    on and from 15 January 2018, a document titled “TANDA, Reclassifying Team Members for the new Domino’s EBA” (Reclassifying Team Members on TANDA) (2FASOC [29B(n)]);

(i)    on and from 18 January 2018, a PowerPoint presentation titled “Fast Food Industry Award 2010 TANDA” (TANDA Fast Food Industry Award Presentation) (2FASOC [29B(o)]); and

(j)    on and from 18 January 2018, a PowerPoint presentation titled “Classifying staff (non DBS stores only)” (Classifying Staff (non-DBS Stores) in TANDA) (2FASOC [29B(p)]).

368    Domino’s admitted the allegation in respect of each of these documents. There is again no dispute as to the provision of the documents to franchise operators, nor that they remained available to franchise operators on DOTTI throughout the Relevant Period.

369    I infer that Domino’s provided these documents to all franchise operators in the period from the date of their upload to the end of the Relevant Period.

370    That inference applies to Dominoids and MC Pizza. I also note:

(a)    in relation to Dominoids, that it was operating the Moranbah and Strathpine Stores after 21 November 2016 and through the Relevant Period. Dominoids was no longer the applicant’s employer in this period as it had ceased to operate the North Caboolture Store in August 2016; and

(b)    in relation to MC Pizza, that it was operating the North Caboolture Store during this period. Further, Domino’s admitted that MC Pizza used TANDA from 1 July 2017, and also that it provided the TANDA - Bookkeeper Webinar to MC Pizza on or about 13 December 2016.

371    I now turn to set out the parts of those documents relied upon by the parties.

7.4.3.1    My Domino’s and TANDA Training Presentation

372    The applicant relied on slide 26 of this presentation, reproduced below:

7.4.3.2    TANDA - Bookkeeper Webinar

373    The applicant relied on the following statements in the webinar:

(a)    at 00:01:00:4:

We look after rostering, we do timesheets, leave, we also do payroll integration so taking information that’s in TANDA, inputting it or exporting it directly into your payroll system to remove many of those manual processes and we also do award interpretation.

(b)    at 00:02:09:0:

“… we basically look after a full range of business types and both modern awards so award rules coming from Fair Work and then obviously personal EBA agreements, things like that, that means we can build in specific award rules for each organisation as required and then be able to effectively build in specific award rules for each organisation as required …”

(Emphasis added.)

(c)    at 00:12:03:8:

[TANDA has] worked with Domino’s to build up the award rules that apply to Domino’s users or employees at this stage, we’ve crafted those rules, we’ve built them into the TANDA system and they will therefore apply for every employee depending on their circumstances, so that includes hire duties…and overtime…and…other allowances.

(Emphasis added.)

(d)    at 00:14:07:1:

[W]e pop over to the right hand side, we can see that there’s an industry award, now this award will already be defaulted in your account so that you won’t need to come in and select which award applies to you; it’s already be there. We have an instance the other day where there’s a couple of stores that are using something a little bit different and if there’s anyone in the room here that might be using the fast food modern award please feel free to let us know or let training at Domino’s know because there some small changes we can make in order for the system to work with your current set up.

(Emphasis added.)

(e)    at 00:15:14:4:

…what you will find though is this classification level field is blank and this is what really drives the pay rate that we sort of have or is available to each of our employees. So what you will need to do is select the lowest possible base rate but applicable to that individual person…then those rates would automatically apply in TANDA.

(Emphasis added.)

(f)    at 00:41:01:0:

… I am sure we can all, you know, we would all agree that labour laws in Australia are very complicated and they are often difficult for people to understand so TANDA is really committed to making this as easy to understand and as clear and accurate as it possibly can so you have complete confidence when you are going through and completing your payroll.

374    Domino’s drew attention to the following statement in the webinar, at 00:14:07:

We did have an instance the other day where there’s a couple of stores that are using something a little bit different and if there’s anyone in the room here that might be using the Fast Food Modern Award, please feel free to let us know or to let Training at Domino’s know because there’s some small changes that we can make in order for the system to work with your current set up.

(Emphasis added.)

375    It also noted the following section of the webinar, at 00:16:23:

If for example you have a team member which you pay differently to the award, so there might be a higher rate perhaps or you pay someone different based on an individual agreement, TANDA could also account for that situation and for that you would actually fill out the base hourly rate, so you’ll pop a separate base salary rate in here and that would override any rate that is generated automatically by this classification and level. If it is a higher rate or a different rate for a driver, please do keep in mind that TANDA is currently applying that TTA, the temporary transitional arrangement allowance, automatically.

376    Domino’s submitted, and I accept, that the webinar was conducted by a TANDA representative, and the statements in it were made by that representative. I do not, though, consider anything turns on that. Domino’s provided the webinar to franchise operators on DOTTI, and it is responsible for any representations found to have been conveyed by that publication.

7.4.3.3    TANDA Help Guide

377    The applicant relied on the following statements in the TANDA Help Guide:

(a)    On page 7:

Tanda automatically applies the Temporary Transitional Arrangement (TTA) for all casual Delivery Experts. This means that if you are providing a separate base hourly rate to your casual drivers, this rate should not include the TTA.

(Emphasis added.)

(b)    On page 16:

Award Interpretation

Tanda’s award interpretation engine completely automates the calculation process for award/pay rates. This means that Tanda will automate pay rates and allowances for each employee. Tanda has worked with Domino’s over many months to custom build the current enterprise agreement - so you can be sure that you’re paying staff correctly.

(Emphasis added.)

(c)    On page 19:

Allowances

The following allowances are currently recorded in Tanda:

•    Delivery Zone A, B and C

•    Temporary Transitional Arrangement

•    Company Car deliveries Should there be any other allowances or deductions that apply in your store, such as uniform deductions or partner foundation deductions, continue to process these as usual in your payroll system.

378    Domino’s relied on the same passage at page 16 (as extracted above).

7.4.3.4    TANDA - New Instructions for the Sales Report

379    The applicant relied on the following passages from the document:

(a)    On page 1:

2.    If you click on a Labour$ or Mileage$ cell in the sales report, this will cause it to open the TANDA Labour data popup allowing you to enter the correct values from TANDA.

(b)    On page 2:

4.    Enter the following data only:

•    Labour Hrs

•    Total Labour $ (this includes TTA and/or Sunday Loading and any overtime)

•    Delivery Zone A:

•    Delivery Zone B:

•    Delivery Zone C:

…

5.    To view delivery allowances, use the drop down to view Delivery Zone A, B or C.

7.4.3.5    TANDA Software Policy

380    This document was titled “COMPANY POLICY”, and it included the following opening passages relied on by the applicant:

Overview

TANDA (Time and Attendance) Workforce Management Solution launched in November 2016. It is expected that all Domino’s stores will have the TANDA software program implemented and utilised in place of any other rostering program by 1 July 2017.

Purpose

The purpose of this policy is to inform all Stores and Franchisees that the rollout of national workforce management solution TANDA will now be mandatory and every store in Australia and New Zealand will be required to have the program up and running by 1 July 2017.

Rationalisation

The installation of the TANDA workforce management program will assist DPE and its Franchisees achieve better compliance with employee entitlements.

It will also allow Franchisees and managers to efficiently roster and record team member attendance and provide greater insight into labour costs across the network.

…

(Emphasis in original.)

7.4.3.6    TANDA Information Kit

381    The applicant relied on the following passage from page 8 of this document:

AWARD INTERPRETER

Overtime

Tanda has the Domino’s award details pre-loaded. Overtime and public holiday rates will automatically be applied to roster calculations and timesheets.

7.4.3.7    TANDA Timesheet Approvals Policy

382    The applicant relied upon the entirety of the document, as extracted below:

COMPANY POLICY

Overview

This policy outlines the mandatory process for the daily approval of timesheets in TANDA and approval of weekly timesheets by 7am Monday morning.

Best practice requires store managers to approve timesheets in TANDA on a daily basis as part of the End of Day process, with all weekly timesheets to be approved by 7am (Brisbane Time) Monday morning.

Daily approval of timesheets allows for easier rectification of issues with clock-ins and clock-outs and provides daily feedback on wage costs. It also provides the employees sufficient time to query any edits prior to the weekly pay run.

Effective immediately, it is mandatory for all stores to apply this standard. Franchisees, Store Managers and Shift Runners are to approve timesheets via the Timesheets - Daily page in TANDA.

We recommend all stores check the following details nightly: -

•    Employees are clocked in using the correct position in Pulse, that is Delivery Expert, Instore, Shift Runner or Manager and if required adjust accordingly, all employees must clock out at the end of their shift.

•    All clock in and out records are correct and educate team members on the correct procedure, as required.

•    Employees who worked a shift longer than 5 hours received a break and this is recorded correctly in Tanda.

•    Employees applied for leave in Tanda and this is approved prior to the end of the week.

•    All shifts are approved daily using the daily timesheets.

•    On Sunday night weekly timesheets must be checked and any record that appears to be white must be checked, corrected and approved.

DBS Stores

Payroll no longer approve timesheets on a stores behalf. Timesheets must be approved by 7am (Brisbane Time) Monday to ensure pays are processed on time.

If in the event a store fails to approve timesheets by the 7am Monday cut off, the Payroll team will be unable to pay the employees that week until the approvals are received. If the team is required to complete a manual pay run because of this delay, this may attract an administration fee of $50 plus GST.

Payroll can no longer make amendments to shift positions, hours and deliveries in the draft reports; these changes must be made in Tanda prior to Monday morning cut off. In the event these changes need to be made in the draft report, Payroll will require employee’s authorisation.

Approved:

(Emphasis in original.)

7.4.3.8    Reclassifying Team Members on TANDA

383    The applicant relied on the following passage on page 4 of this document:

Base Hourly Rate

Tanda will automatically assign an ordinary wage rate (according to the EBA) to a team member where their Classification/Level and Date of Birth has been set on their Payroll Page.

If the team member is paid above the ordinary wage rate for their age and classification; however, you should manually enter their base hourly rate in the Base Hourly Rate field.

(Emphasis in original.)

7.4.3.9    TANDA Fast Food Industry Award Presentation

384    The applicant relied on the entire 24-page presentation. The significance of this presentation is that it explained to franchise operators how the TANDA system would apply the classifications, pay rates and terms and conditions of employment for a franchise operator’s employees under the Award, noting that for DBS Stores this would be automated through TANDA. For non-DBS Stores, the presentation provided instructions as to how to input the relevant information. The final slide, titled “Support”, is reproduced below:

7.4.3.10    Classifying Staff (non-DBS Stores) in TANDA

385    The applicant relied on the entire document. To my mind the significance of the presentation is that it explained to franchise operators of non-DBS Stores how the TANDA system was to be used in relation to the Award entitlements of their employees in such stores.

7.4.3.11    Whether the TANDA Training Materials were read by franchise operators

386    Again, it is convenient to now address Domino’s submission to the effect that, although it admitted that it uploaded these documents to DOTTI, the applicant did not establish that franchise operators read them.

387    Domino’s pleaded that:

(a)    the My Domino’s and TANDA Training Presentation was downloaded by approximately 8% of all primary franchisees and secondary contacts;

(b)    the TANDA - Bookkeeper Webinar was downloaded by approximately 3% of all primary franchisees and secondary contacts;

(c)    the TANDA Help Guide was downloaded by approximately 5% of all primary franchisees and secondary contacts;

(d)    TANDA - New Instructions for the Sales Report was downloaded by approximately 2% of all primary franchisees and secondary contacts;

(e)    the TANDA Software Policy was downloaded by approximately 1% of all primary franchisees and secondary contacts;

(f)    the TANDA Information Kit was downloaded by approximately 2% of all primary franchisees and secondary contacts;

(g)    the TANDA Timesheet Approvals Policy was downloaded by approximately less than 1% of all primary franchisees and secondary contacts;

(h)    Reclassifying Team Members on TANDA was downloaded by approximately less than 1% of all primary franchisees and secondary contacts;

(i)    the TANDA Fast Food Industry Award 2010 Presentation was downloaded by approximately less than 1% of all primary franchisees and secondary contacts; and

(j)    Classifying Staff (non-DBS Stores) in TANDA was downloaded by approximately less than 1% of all primary franchisees and secondary contacts.

388    For the reasons I have explained, that is not probative of whether franchise operators read the documents. The documents could be read by franchise operators, and the webinar viewed, in a web browser.

389    Further, for the reasons I now turn to explain, I consider it to be more likely than not that all franchise operators who were provided with access to these documents during the period from 21 November 2016 to the end of the Relevant Period, read them. The following matters are material to my view:

(a)    Domino’s provided those documents to its franchise operators on DOTTI on the dates specified, and it left them available to franchise operators on DOTTI until the end of the Relevant Period. Most franchise operators are likely to think that Domino’s would not upload training documents for them unless it thought they were important. The fact that few franchise operators may have downloaded the documents says nothing about how many read the documents, because they could be read in a web browser;

(b)    Domino’s uploaded the TANDA Training Materials to DOTTI and left them available on DOTTI in circumstances where it was progressively rolling out TANDA to all franchise operators from late December 2016, and use of TANDA by franchise operators was to be compulsory from July 2017. The introduction of TANDA constituted a significant change in the operating software for franchise operators, and it was important to many aspects of the operation of a Franchise Store. In the circumstances, franchise operators are likely to have seen the TANDA Training Materials as important and necessary reading;

(c)    any additional training directed by Domino’s was mandatory (although it is not clear whether this training was mandatory);

(d)    the TANDA Software Policy and the TANDA Timesheet Approvals Policy were titled “Company Policy”, and on their face, they were important to franchise operators because their sub-franchise agreements required them to comply with all Domino’s policies and directions;

(e)    the TANDA Timesheet Approvals Policy was important to franchise operators on the face of the document because it set out mandatory processes for the daily and weekly approval of timesheets in TANDA; and

(f)    the TANDA Fast Food Industry Award Presentation concerned the operation of TANDA in relation to the Award and changes to the applicable pay rates for employees which flowed from the Award, which were important for franchise operators to understand.

390    That inference does not apply to Dominoids in relation to the applicant’s individual case, as it ceased to operate the North Caboolture Store in August 2016. The inference does apply to MC Pizza in relation to the applicant’s individual case, as it was operating the North Caboolture Store during this period.

7.4.4    The Pay Rate Notices

391    The applicant alleged that Domino’s regularly provided Pay Rate Notices to franchise operators, in which it set out the applicable pay rates for Delivery Drivers and In-Store Workers from time to time. It did so by uploading such notices to DOTTI and making them available to franchise operators, and/or by directly emailing the Pay Rate Notices to franchise operators.

392    First, the applicant alleged (2FASOC [29C]) that during the Relevant Period, Domino’s regularly sent Pay Rate Notices by email to the email addresses of the primary franchisees, which stated the applicable wage rates for Delivery Drivers and In-Store Workers. As earlier noted, Domino’s email distribution list to franchise operators contained the email addresses of all primary franchisees but occasionally, if requested, a franchise operator’s secondary contacts were added to the distribution list.

393    It is alleged that Domino’s sent 15 Pay Rate Notices to franchise operators regarding the applicable wage rates for Delivery Drivers and In-Store Workers between 24 June 2013 and 14 December 2017, as follows:

(a)    two on 24 June 2013, relating to the Delivery Driver and In-Store Worker wage rates respectively to apply from 1 July 2013;

(b)    two on 27 June 2014, relating to the Delivery Driver and In-Store Worker wage rates to apply from 1 July 2014;

(c)    two on 26 June 2015, relating to the Delivery Driver and In-Store Worker wage rates to apply from 1 July 2015;

(d)    two on 8 July 2016, relating to the Delivery Driver and In-Store Worker wage rates to apply from 1 July and 1 August 2016 respectively;

(e)    one on 28 November 2016, relating to the In-Store Worker wage rates to apply from 1 January 2017;

(f)    two on 30 June 2017, relating to the Delivery Driver and In-Store Worker wage rates to apply from 1 July 2017;

(g)    two on 27 October 2017, relating to the Delivery Driver and In-Store Worker wage rates to apply from 1 December 2017;

(h)    one on 13 December 2017, relating to the In-Store Worker wage rates to apply from 1 July 2015, 1 July 2016 and 1 July 2017; and

(i)    one on 14 December 2017, relating to the In-Store Worker wage rates to apply from 1 July 2017.

(collectively, the Pay Rate Notices by email).

394    Second, the applicant alleged (2FASOC [29B(k)]) that on 30 June 2017 Domino’s uploaded to DOTTI and made available to all target groups (including franchise operators), until the end of the Relevant Period, the following two documents:

(a)    a document titled “Confidential: Domino’s Pizza Enterprises Driver Pay Rates to apply from 1 July 2017” dated 30 June 2017 (Delivery Driver pay rates to apply from 1 July 2017); and

(b)    a document titled “Confidential: Domino’s Pizza Enterprises Instore Pay Rates to apply from 1 July 2017” dated 30 June 2017 (In-Store Worker pay rates to apply from 1 July 2017).

(collectively, the Pay Rate Notices on DOTTI).

395    Domino’s admitted the allegations in respect of all of these documents. Again, there is no dispute as to the provision of the documents to franchise operators.

396    I infer that Domino’s provided these documents to all franchise operators in the period from the date they were either directly emailed to franchise operators or uploaded to DOTTI for franchise operators through to the end of the Relevant Period.

397    This inference applies to Dominoids in relation to the applicant’s individual case, as it operated the North Caboolture Store from 17 December 2012 to 28 August 2016, and other stores from earlier dates. The inference also applies to MC Pizza as it operated one or more Franchise Stores during the Relevant Period, including the North Caboolture Store from 29 August 2016 until the end of the Relevant Period. In any event, Domino’s admitted that it provided those documents to Dominoids and MC Pizza.

398    I now turn to set out those parts of the Pay Rate Notices upon which the parties relied.

7.4.4.1    The Pay Rate Notices by email

399    These documents had many similarities. Domino’s admitted that the Pay Rate Notices for Delivery Drivers and In-Store Workers for the Relevant Period invariably described the rates as the “applicable” rates or the rates that were “to apply”.

7.4.4.1.1    Pay Rates to apply from 1 July 2013

400    The evidence shows that Domino’s sent two documents to all franchise operators, under cover of an email dated 24 June 2013, setting out the National Driver and In-Store Worker wage rates to apply from 1 July 2013. The covering email relevantly stated:

Good afternoon

Attached are the new minimum national wage rates for both in-stores and drivers due to take effect on 01 July 2013. These new rates take into account the recent 2.6% national wage case decision by the Fair Work Commission earlier this month.

Please note that the increase can be absorbed into any rate that you are currently paying that is higher than these new rates. Eg. Drivers that are currently on $18.92 per hour will remain on $18.92 per hour if the new prescribed rate is less than $18.92.

(Emphasis in original.)

401    The applicant relied upon the following parts of the attached documents.

402    The first document was headed “National Drivers’ Wage Rates from 1 July 2013 - NATIONAL SUMMARY”. Beneath that heading a table (reproduced below) set out the applicable minimum wage rates for casual and permanent drivers by store location, age, and length of service (where applicable).

403    The notice also specified three delivery allowances payable to Delivery Drivers applicable to all Domino’s Stores, which increased with the distance travelled from the store. Those allowances did not vary with location, age, or length of service.

404    The second document concerned the wage rates for In-Store Workers and was headed “To apply from 1 July 2013 and allowing for 2.6% increase to minimum wage announced in June 2013”. Beneath that heading was a series of tables applicable to Domino’s Stores in each state and territory (reproduced below):

7.4.4.1.2    Pay Rates to apply from 1 July 2014

405    On 27 June 2014, Domino’s sent two documents to franchise operators, via an email to all franchise operators styled in the form of a “Fast Facts” flyer, with hyperlinks to the new national Delivery Driver and In-Store Worker wage rates to apply from 1 July 2014. The applicant relied upon the following parts of the documents.

406    Page 2 of the flyer contained a text box with hyperlinks which stated:

New wage rates from 1 July

New wage rates will take effect from 1 July 2014 to 30 June 2015.

Click here to view Domino’s new national in-store wage rates.

Click here to view Domino’s new national driver’s wage rates.

(Emphasis in original.)

407    If the franchise operator clicked the hyperlink for the new national In-Store Worker wage rates, he or she was taken to a document with the title “Confidential, National Domino’s In-Store Wage Rates to Apply from 1 July 2014 to 30 June 2015”. Under that, the new wage rates were presented in tables, by states and territories, depending upon whether the workers were permanent or casual (as reproduced below).

408    If the franchise operator clicked the hyperlink for the new national Delivery Driver wage rates, he or she was taken to a document with the title “Confidential, National Domino’s Drivers’ Wage Rates to Apply from 1 July 2014 to 30 June 2015”, which set out the new wage rates in the same format as in the Pay Rate Notices for 1 July 2013, but with higher rates and delivery allowances. Above the table, it included some information about “Makeup deliveries” and stipulated differential rates for drivers using company vehicles and private vehicles, which themselves made reference to applicable rates in the table.

7.4.4.1.3    Pay Rates to apply from 1 July 2015

409    On 26 June 2015, Domino’s sent two documents to franchise operators via an email to all franchise operators, styled in the form of a “Fast Facts” flyer. It included hyperlinks to the new national Delivery Driver and In-Store Worker wage rates to apply from 1 July 2015. The applicant relied upon the following parts of the documents.

410    Pages 1-2 of the email flyer contained a text box with hyperlinks that stated:

Employee relations update - Wage rates from 1 July

New wage rates will take effect from 1 July 2015.

View the new national in-store wage rates here and view the new national driver’s wage rates here as negotiated with the SDA Union effective 1 July 2015 for all Domino’s employees.

Click here to view the updated location allowances for Alice Springs, WA and NT also effective 1 July 2015.

Please take note of the special clauses at the top of the driver rates.

(Emphasis in original.)

411    The hyperlinks took the reader to new national Delivery Driver and In-Store Worker wage rates to apply from 1 July 2015, which set out the new wage rates in the same format as in the Pay Rate Notices for 1 July 2014, but with higher rates and allowances.

7.4.4.1.4    Pay Rates to apply from 1 July 2016 and 1 August 2016

412    On 8 July 2016, Domino’s sent two documents to franchise operators, under cover of an email to all franchise operators styled in the form of a “Fast Facts” flyer, with hyperlinks to the new national Delivery Driver and In-Store Worker wage rates to apply from 1 July 2016 and 1 August 2016 respectively. The applicant relied upon the following parts of the documents.

413    Page 1 of the email flyer contained a text box with hyperlinks which stated:

Interim wage conditions and rate charts

We are pleased to advise today that the SDA have agreed to support an interim pay increase proposal while we await the finalisation of Domino’s new enterprise agreement.

During this time, the following wage conditions will be applicable:

•    All Drivers will be paid the same base hourly rate, regardless of whether they are using a company or private vehicle (junior rates still applicable)

•    Drivers using a private vehicle will still be entitled to a delivery allowance

•    The ‘Temporary Transitional Enterprise Agreement Negotiation Allowance’ will be payable to all drivers, in addition to their base hourly rate. This allowance will remain in place until Domino’s has finalised the new enterprise agreement with the SDA

•    The minimum wage increase has also been applied to base hourly rates for both drivers and [In-Store Workers]

The new driver rates and enterprise agreement allowance will be applicable as of 1 August 2016, with existing (2015) rates payable until then. The Instore rates are effective as of 1 July 2016.

Click here to view the National Instore Wage Rates

Click here to view the National Driver Wage Rates

(Emphasis in original.)

414    The hyperlinks took the reader to new national Delivery Driver and In-Store Worker wage rates to apply from 1 July 2016 and 1 August 2016 respectively, which set out both new national Delivery Driver and In-Store Worker wage rates in the same format as for the In-Store Pay Rate Notices for 1 July 2014 and 1 July 2015 but with higher rates and allowances.

7.4.4.1.5    Pay Rates to apply from 1 January 2017

415    On 28 November 2016, Domino’s sent a document to franchise operators, via an email to all franchise operators styled in the form of a “Fast Facts” flyer, with hyperlinks to the new national In-Store Worker wage rates to apply from 1 January 2017. Page 1-2 of the email flyer contained a text box with hyperlinks that stated:

Important

1 Jan 2017

Sunday loading and wage rate

Please read below important information about the Sunday Loading pay rate that will apply from January 1, 2017 and how it will work with other pay rates.

If you have any further questions, please contact wages@Domino’s.com.au

•    The Sunday loading only applies to shifts that start on the Sunday

•    The Sunday loading will apply to the entire shift.

•    The Sunday loading applies to Drivers, Instores and Shift Runners both Casual and Permanent.

•    If a public holiday falls on a Sunday, only the public holiday penalty will apply instead of Sunday loading.

•    If an employee falls into overtime on a Sunday, only the overtime penalty applies instead of the Sunday Loading.

•    Payment for annual leave or sick leave taken on a Sunday when it is a rostered day, does not attract the Sunday Loading.

Instore Wage Rates 1 Jan 2017

Driver Wage Rates 1 Jan 2017

(Emphasis in original.)

416    Although the email provided a hyperlink to wage rates for Delivery Drivers from 1 July 2017, the applicant’s submissions focused only on the new In-Store Worker wage rates. The hyperlink took the reader to new national In-Store wage rates to apply from 1 January 2017, and the document set out wage rate tables for In-Store Workers split into two groups: “Queensland & Western Australia”, and “All Other States and Territories”. The three tables in each group presented wage rates according to Level 1, Level 2, and Level 3. Each table further divided rates according to age, and the applicable “Base Hourly Rate”, “Base Casual Hourly Rate”, and “Sunday Loading”.

7.4.4.1.6    Pay Rates to apply from 1 July 2017

417    On 30 June 2017, Domino’s sent two documents via email to all franchise operators styled in the form of a “Fast Facts” flyer, with hyperlinks to the new Delivery Driver and In-Store Worker wage rates to apply from 1 July 2017. The applicant relied upon the following parts of the documents.

418    Page 1-2 of the email flyer contained a text box with hyperlinks which stated:

New Wage Rates in TANDA

Wage rates will be increasing this coming week.

Please note that the new rates apply to the first full pay periods which commences Monday 3 July 2017. Stores will not see the new rates in TANDA until mid-week and as such the rostered labour amount will be incorrect. This is only temporary until the new rates are backdates to apply from Monday.

Stores using TANDA for labour calculations in the sales sheet will also be affected by the delay in rate appearing.

•    Driver wage rates can be found HERE

•    Instore wage rates can be found HERE

If you are not with DBS, you are not required to action anything with TANDA unless you have custom rates set up for team members. However, please ensure that these new wage rates are provided to your bookkeeper.

Please contact the Employee Relations Department should you have any questions regarding the wage rate increase.

419    Domino’s also made those Delivery Driver and In-Store Worker wage rates available to franchise operators on DOTTI (see above).

420    The hyperlinks took the reader to documents that tabulated the new national Delivery Driver and In-Store Worker wage rates to apply from 1 July 2017.

7.4.4.1.7    Pay Rates to apply from 1 December 2017

421    On 27 October 2017, Domino’s sent two documents via an email to all franchise operators, with hyperlinks to the new Delivery Driver and In-Store Worker wage rates to apply from 1 December 2017. The applicant relied upon the following parts of the documents.

422    The email said:

Good afternoon franchisees,

We’re currently in negotiations for a new EBA that will see adjusted entitlements for our employees.

The below entitlements are a transitional step for the business and from the first pay period following 1 December 2017 evening & late night penalties for all Level 1 & 2 employees (permanent & casual) will apply.

Similar to TEENA and Sunday Loading, it is a requirement that all Franchisees provide employees with these evening & late night penalties which are as follows:

•    10% loading for work performed between 10:00pm - 12:00am where a shift begins on Monday to Friday (inclusive);

•    15% loading for work performed between 12:00am - 06:00am where a shift begins on Monday to Friday (inclusive);

The updates wage rates with these additional penalties can be found at the links below:

•    Driver Wage Rates - 1 December 2017

•    Instore Wage Rates - 1 December 2017

Please note we are currently working with TANDA to have the necessary changes implemented within the system prior to the 1 December commencement date. We will keep you updates on progress with this change.

423    The hyperlinks took the reader to:

(a)    a document in which In-Store Worker wage rates were tabulated into Level 1, 2 and 3, by age, by reference to each state or territory, and by reference to “Base Hourly Rate”, “Base Casual Hourly Rate”, “Sunday Loading”, “Evening Penalty” and “Late Night Penalty”; and

(b)    a document in which Delivery Driver wage rates were tabulated by reference to each state or territory, by age, and by reference to “Base Hourly Rate”, “TTEAN Allowance”, “Sunday Loading”, “Evening Penalty” and “Late Night Penalty”, together with three rates for delivery allowances.

7.4.4.1.8    Pay Rates to apply retrospectively from 1 July 2015, 1 July 2016 and 1 July 2017

424    On 13 December 2017, Domino’s sent an email to all franchise operators with a hyperlink to In-Store Worker wage rates to be applied retrospectively from 1 July 2015, 1 July 2016 and 1 July 2017 for specified categories of In-Store Workers. The applicant relied upon the following parts of the documents.

425    The email relevantly said:

Good afternoon franchisees,

As part of our ongoing Enterprise Agreement negotiations we have been continually reviewing the store positions that exist in our business and the applicable wage classifications that are applied to those positions.

Recently it was identified that the wage classification being applied to some management positions differed between our current EBA and the provisions being provided for under the Fast Food Award. The key factor that has caused this difference is the varying in classifications across the two employment instruments.

After a detailed review of this matter it has been determined that where an employee falls within the Level 2 classification under the Fast Food Award they are entitled to be paid the applicable Level 2 wage rate as prescribed by the Award.

…

Employees that typically fall within the Level 2 classification are Manager in Training and Assistant Managers.

The level 2 wage rate under the Award is slightly higher compared to the Level 2 wage rate under the EBA.

Please find updated wage rates along with previous rates from 2015 and 2016 HERE.

It is strongly advised that you apply this wage rate retrospectively to ensure you are meeting all of your employment law obligations as per Fair Work Act 2009. Please contact the Employee Relations Department for additional wage rates that are not included in the above link.

For DBS Franchisees, applicable changes to the level 2 wage rates will be carried out by DBS and take effect as of pay period ending 17 December 2017.

The set-off clause in our EBA can continue to be used where employees have been paid above EBA entitlements. For example, if you have paid bonuses to Level 2 Managers you can use these additional payments to off-set the higher Level 2 rate that is outlined above.

As always our Employee Relations team is available to answer any questions you have on 1800 810 999 or wage.assistance@Domino’s.com.au.

Regards

Tim Van Schyndel

426    The hyperlink took the reader to a document containing a series of tables setting out pay rates for In-Store Workers relevant to franchise operators from 1 July 2015, 1 July 2016 and 1 July 2017, by geographic location, age, and applicable rate, to be applied retrospectively.

7.4.4.1.9    Pay Rates to retrospectively apply from 1 July 2017

427    On 14 December 2017, Domino’s sent an email to all franchise operators with a hyperlink to In-Store Worker wage rates to be applied. The email corrected an error in the email the day before. The applicant relied upon the following parts of the document.

428    The email was substantively the same as the 13 December 2017 email, but contained the following text above the header:

Correction to 2017 L2 casual rates

Franchisees please note, unfortunately there was an error in the 2017 in store wage rate information sent yesterday. We sincerely apologise for any confusion and have corrected the information in the link below.

429    The hyperlink directed franchise operators to a document containing a table with revised In-Store Worker pay rates to be applied retrospectively from 1 July 2017.

7.4.4.2    Pay Rate Notices on DOTTI

430    The evidence shows that on 30 June 2017, Domino’s uploaded documents to DOTTI and made them available to all target groups (including franchise operators) until the end of the Relevant Period. These documents set out the Delivery Driver and In-Store Worker pay rates to apply from 1 July 2017. These were identical to those distributed via email on 30 June 2017 which I identified above.

431    In relation to the document stating the Delivery Driver pay rates to apply from 1 July 2017, the applicant relied upon the following parts of the notice:

CONFIDENTIAL

Domino’s Pizza Enterprises Driver Pay Rates to apply from 1 July 2017

Important Notes

1.     All casual Drivers will be entitled to receive the ‘Temporary Transitional Enterprise Agreement Negotiation Allowance’ (TTEANA) in addition to their hourly rate;

2.     A Driver using a private vehicle will receive a delivery allowance per delivery, in addition to their hourly rate and any other applicable allowances/loadings.

3.     If a shift begins on a Sunday, all hours worked for that shift will receive a 25% ‘Temporary Transitional Enterprise Agreement Negotiation Loading’ (Sunday Loading), in addition to the base rate of pay.

Delivery allowances - All stores

$2.27     For deliveries less than 7 kilometres’ radius from the store (Zone A)

$2.59     For deliveries at a distance of 7 to 10 kilometres’ radius from the store (Zone B)

$2.94     For deliveries at a distance of over 10 kilometres’ radius from the store (Zone C)

432    In relation to the document stating the In-Store Worker pay rates to apply from 1 July 2017, the applicant relied upon the following parts:

CONFIDENTIAL

Domino’s Pizza Enterprises Instore Pay Rates to apply from 1 July 2017

1.    Important Notes for Level 1 & 2 Instores 1. If a shift begins on a Sunday, all hours worked for that shift will receive a 25% ‘Temporary Transitional Enterprise Agreement Negotiation Loading’ (Sunday Loading), in addition to the base rate of pay.

All States

7.4.4.2.1    Whether the Pay Rate Notices were read by franchise operators

433    Again, it is convenient to now address Domino’s arguments to the effect that, although Domino’s admitted that it regularly emailed Pay Rate Notices to franchise operators, and it uploaded some Pay Rate Notices to DOTTI and thereby made them available to franchise operators, the applicant did not establish that franchise operators read those documents.

434    Domino’s pleaded that the Pay Rate Notices on DOTTI were downloaded by very few franchise operators. It alleged that the Delivery Driver pay rates to apply from 1 July 2017 and the In-Store Worker pay rates to apply from 1 July 2017 were downloaded by approximately 14.5% and 15% respectively of all primary franchisees and secondary contacts. It also pleaded that (depending on which Pay Rate Notice by email is referred to) only between approximately 13% and 14% of primary franchisees and secondary contacts viewed those emails.

435    I do not accept those contentions.

436    First, in relation to Domino’s contention regarding the level of downloading of the Pay Rate Notices on DOTTI, as I have explained, the level of downloading is not probative as to whether or not franchise operators read those notices. They could be viewed on the web browser. In any event, Domino’s sent the same information by email to franchise operators.

437    Second, although Domino’s pleaded that only between 13% and 14% of primary franchisees and secondary contacts viewed the Pay Rate Notices by email, it did not adduce any evidence to establish that allegation:

(a)    in relation to the applicant’s personal claim, Domino’s did not adduce any evidence to the effect that Dominoids and MC Pizza did not view the Pay Rate Notices by email; and

(b)    in relation to the Common Questions, Domino’s did not adduce any evidence to the effect that other franchise operators did not view the Pay Rate Notices by email.

438    Third, in my view, where a franchise operator was sent an email by Domino’s in relation to the applicable pay rates for the franchise operator’s employees for the ensuing period, it is more likely than not that the franchise operator read the email and hyperlinked Pay Rate Notice. That is so because:

(a)    the Pay Rate Notices were important on the face of the email, going as they did to the obligation of franchise operators to pay their Delivery Drivers and In-Store Workers the correct pay rates;

(b)    in the context of the relationship between Domino’s and its franchise operators, it is likely that most franchise operators would expect Domino’s to inform them of the correct pay rates, rather than calculating them for themselves;

(c)    absent active research by each franchise operator into the applicable pay rates each year, the Pay Rate Notices regularly provided by Domino’s were the most readily available information regarding the applicable pay rates for Delivery Drivers and In-Store Workers; and

(d)    Ms Wright’s evidence (to which I will later refer in more detail) shows a high degree of uniformity between the pay rates entered into PULSE by franchise operators and the base hourly rates under the Agreements (as amended by the ad hoc arrangements and allowances agreed with the SDA). Her evidence was that 23.6% of the wage values entered by franchise operators into PULSE were within $0.01 of the Agreement rates, and another 18% were within $1 on either side. I accept the applicant’s submission that those minor variations were likely explained by PULSE’s function as an estimator of labour costs, the absence of classification data on part-time and casual status, and the failure to account for applicable allowances. That uniformity is unlikely to have occurred absent most franchise operators reading the Pay Rate Notices.

7.4.5    DBS Documents

439    The applicant alleged that Domino’s provided franchise operators with documents relating to DBS (the DBS Documents), doing so by uploading such documents to DOTTI and thus making them available to franchise operators; by providing those documents to franchise operators who entered into a DBS Agreement; and by providing them to new franchise operators as part of their induction training.

440    First, the applicant alleged that on 25 June 2015 Domino’s uploaded to DOTTI and made available to franchise operators, until on or about 22 September 2017, a document titled “Policy - Bookkeeping Services v 3.1” dated 24 June 2015 (Bookkeeping Services Policy Version 3.1) (2FASOC [29B(d)]).

441    Second, the applicant alleged that since 1 September 2012, Domino’s required all new franchise operators to use DBS for a period of at least 24 months from the date of commencement of their sub-franchise agreement for services including payroll, bookkeeping, accounting and reports (I defined this previously as the DBS Agreement/s) (2FASOC [31(fd)] and [33(a)]).

442    Third, the applicant alleged (2FASOC [29D(d)(i)-(xiii)]) that Domino’s provided PowerPoint slides to new franchise operators, containing several versions of a document titled “Bookkeeping Service - Franchise Orientation Program”, typically in hardcopy format (and not via email or on DOTTI), presented in person during induction training sessions in the approximate periods set out below:

(a)    4 March 2014 and 1 April 2014;

(b)    2 April 2014 and 27 April 2014;

(c)    28 April 2014 and 22 May 2014;

(d)    23 May 2014 and 10 June 2014;

(e)    11 June 2014 and 4 August 2014;

(f)    5 August 2014 and 11 August 2014;

(g)    12 August 2014 and 25 November 2014;

(h)    26 November 2014 and 21 February 2015;

(i)    22 February 2015 and 17 March 2015;

(j)    18 March 2015 and 24 May 2015;

(k)    25 May 2015 and 24 May 2016;

(l)    25 May 2016 and 27 June 2016; and

(m)    28 June 2016 and 28 March 2017.

443    Fourth, the applicant alleged that Domino’s provided PowerPoint slides to new franchise operators, containing several versions of a document titled “Domino’s Bookkeeping Service Business School” (Bookkeeping Service Business School Presentation) (2FASOC [29D(d)(xiv)-(xv)]), typically in hardcopy format (and not via email or on DOTTI), presented in person during induction training sessions in the approximate periods set out below:

(a)    29 March 2017 and 19 September 2017; and

(b)    20 September 2017 until the end of the Relevant Period.

444    Domino’s admitted that it provided the DBS Documents to franchise operators as alleged. There is again no dispute between the parties regarding the provision of these documents to franchise operators.

445    In relation to the DBS Documents I find as follows.

446    In relation to the Bookkeeping Services Policy Version 3.1, it was published on DOTTI and available to all franchise operators in the period between 25 June 2015 and 22 September 2017. Domino’s therefore provided that document to all franchise operators in that part of the Relevant Period. That inference includes Dominoids and MC Pizza as they were franchise operators in that period. In any event, Domino’s admitted that it provided that document to Dominoids and MC Pizza.

447    In relation to DBS Agreements, during the Relevant Period:

(a)    DBS was made available to any existing franchise operator who wished to take up that service. Obviously, any franchise operator which executed a DBS Agreement had been provided with one. Further, I infer by around 30 November 2012 a standard form DBS Agreement was part of the pack of disclosure documents that Domino’s provided to prospective franchise operators. That inference is appropriate because a standard form DBS Agreement was Annexure J to the Pre-2015 Code Disclosure Document that Domino’s provided to Dominoids on or around 30 November 2012. The evidence shows that Ms Smith executed a DBS Agreement in relation to the Beerwah Store on or around 21 November 2014.

(b)    As earlier explained, from 1 September 2012 until the end of the Relevant Period (except during the three-month period from 1 September 2014) use of DBS was compulsory for new franchise operators. I therefore infer that over that period (except for in the three-month period referred to) Domino’s provided all new franchise operators with a DBS Agreement and they executed it.

448    The evidence as to the number of franchise operators who used DBS during the Relevant Period is not precise, but I am satisfied that Domino’s provided DBS Agreements to a substantial cohort of franchise operators. Any franchise operator who was using DBS was required to sign a DBS Agreement and the evidence shows that:

(a)    the percentage of Franchise Stores using DBS increased from approximately 7.50% at the start of the Relevant Period to 33.98% at the end of the Relevant Period;

(b)    there were 313 Franchise Stores that used DBS during the calendar years 2017 to 2019; and

(c)    during the Relevant Period, approximately 46.1% of all Franchise Stores used DBS at some point for some period of time, and 56.6% of workers who worked at least one shift during the Relevant Period worked at a Franchise Store that used DBS.

449    In relation to the Bookkeeping Service - Franchise Orientation Program and the Bookkeeping Service Business School Presentation, I find that from 4 March 2014 until the end of the Relevant Period all new franchise operators were provided with either the Bookkeeping Service - Franchise Orientation Program or the Bookkeeping Service Business School Presentation as part of their induction training. Existing franchise operators as at 14 March 2014 are unlikely to have been provided with either of those documents as they were not new franchise operators who were required to undergo induction training.

450    Dominoids and MC Pizza are unlikely to have been provided with these documents, because, as at 4 March 2014, they were not new franchise operators.

451    I now turn to set out those parts of the DBS Documents upon which the parties relied.

7.4.5.1    Bookkeeping Services Policy

452    An earlier version of the Bookkeeping Services Policy is in evidence, titled “Policy - Bookkeeping Services v 1.0” dated 13 August 2012 (Bookkeeping Services Policy Version 1.0). It stated:

DPE’s Bookkeeping Services

Domino’s Pizza Enterprises Limited (DPE) will provide bookkeeping services … to all new external Sub-Franchisees that sign a Sub-Franchise Agreement on or after 1 September 2012 for a period of 24 months from the Date of Commencement of the applicable Sub-Franchise Agreement…

453    The applicant relied on the following parts of the later Bookkeeping Services Policy Version 3.1.

454    First, the Bookkeeping Services Policy Version 3.1 increased the categories of franchise operator who were required to use DBS. It stated that unless Domino’s “specifically waived in writing” the requirement, franchise operators in the following circumstances were required to use the service for the duration of the sub-franchise agreement:

1.    all new external Sub-Franchisees that sign a Sub-Franchise Agreement on or after 1 September 2012;

2.    all Sub-Franchisees that purchase an additional store once already receiving the Bookkeeping Services from Domino’s;

3.    a Sub-Franchisee with 1 or more existing stores under the same ABN/IRD Number that are not receiving Bookkeeping Services prior to the Effective Date of this Policy but come across to the Bookkeeping Services in accordance with items 4 - 9 of this Policy, all stores operated under the same ABN/IRD Number of the Sub-Franchisee will be required to take on the Bookkeeping Services;

4.    any Sub-Franchisee who, on or after the Effective Date of this Policy, has drawn loan finance with Domino’s;

5.    any Sub-Franchisee who, on or after the Effective Date of this Policy, has entered into an Option Deed with Domino’s;

6.    any Sub-Franchisee that fails to submit, for 4 or more consecutive months, an unaudited balance sheet and unaudited profit and loss for the month within 21 days of the end of each month for the Store (as required by the Sub-Franchise Agreement); or

7.    any Sub-Franchisee that has any of their direct debits to either Domino’s or their food supplier rejected 4 or more times in a consecutive 3 month period;

8.     the Master Franchisee has reason to believe that the Sub-Franchisee has submitted, for two (2) or more consecutive months, a balance sheet or profit and loss for the month which contains amounts which have been materially misrepresented or are intentionally incorrect;

9.    the Master Franchisee becomes aware that the Sub-Franchisee has failed to comply with an obligation under any Australian or New Zealand employment law or the terms provided under any relevant industrial instrument, being the “Bookkeeping Term”.

455    Second, the Bookkeeping Services Policy Version 3.1 stated:

The Bookkeeping Services are subject to the Bookkeeping Services Agreement and include:

1.    Payroll

a.    Use of PULSE payroll system and reporting;

b.    Use of Connx (an employee self-service system);

c.    Processing weekly payroll and providing payslips to employees via Connx;

d.    Preparing bank upload file for payroll payment by the Sub-Franchisee;

e.    Ensuring pay rates are updated according to the applicable Award;

f.    Superannuation/KiwiSaver calculations and reports (excluding payment processing via bank);

g.    Workers compensation calculations (if requested, however excludes payment processing via Bank);

h.    End of Year reports and payment summaries (previously known as group certificates).

(Emphasis added.)

456    Domino’s accepted that each relevant version of the Bookkeeping Services Policy stated that the payroll service available through DBS included ensuring that “pay rates are updated according to the applicable Award”, with “the Award” being understood as a reference to the relevant enterprise agreement.

7.4.5.2    DBS Agreements

457    Both parties also relied on clauses of the DBS Agreements themselves. The applicant relied on the following clauses:

1.    BOOKKEEPING TERM

…

1.3    The parties acknowledge and agree that the Bookkeeping Services will apply in respect of the Sub-Franchisee’s operations at the Stores listed in Schedule 1 and any other Domino’s store managed, owned or operated by the Sub- Franchisee on or after the date of this Agreement.

…

2    Bookeeping Services

2.1    The Bookkeeping Services to be provided by Domino’s to the Sub-Franchisee will include:

2.1.1    PAYROLL

(a)    Use of PULSE payroll system and reporting;

(b)    Use of Connx (an employee self- service system);

(c)    Process weekly payroll and provision of payslips to employees via Connx;

(d)    Prepare bank upload file for payroll payment by the Sub-Franchisee;

(e)    Ensure pay rates are updated according to the applicable Award;

(f)    Superannuation calculations and reports;

(g)    WorkCover calculations (if requested);

(h)    End of Year reports and payment summaries (group certificates).

…

3    PAYMENT

3.1    The Sub-Franchisee shall pay to Domino’s the following fees:

(a)    $165 plus GST per week per Store (“Bookkeeping Fee”) commencing on the Date of Commencement;

(b)    an Initial Set-Up Fee contained in Schedule 1;

(c)    a once-off software fee of $120 plus GST (per ABN used by the Sub-Franchisee) (“Software Fee”) paid upon the Date of Commencement; and

(d)    an annual software maintenance and support fee of $30 plus GST (per ABN used by the Sub-Franchisee) (“Annual Software Maintenance Fee”) charged in July of each year.

…

16    REPRESENTATIONS AND WARRANTIES AND INDEMNITIES

16.1    Domino’s represents and warrants to the Sub-Franchisee that:

…

16.1.2    it has the necessary skills, experience and resources and is properly qualified to complete the Bookkeeping Services to a professional standard;

16.1.3    the services to be provided under this Agreement are fit for their intended purpose in accordance with generally accepted accounting practices and principles. Domino’s acknowledges that all services provided will be of professional and workmanlike quality and will be provided within a reasonable time.

…

SCHEDULE 1

…

(Emphasis added in cl 2.1.1.)

458    Domino’s relied on two further clauses in the DBS Agreements:

16.6    To the maximum extent permitted by law, all other terms and warranties expressed or implied by any legislation, common law, equity or otherwise in connection to the supply of the Bookkeeping Services are expressly excluded.

16.7        Domino’s does not provide any legal or accounting services, opinions or advice in respect of the Bookkeeping Services or the results of the performance of the Bookkeeping Services.

7.4.5.3    Bookkeeping Service - Franchise Orientation Program

459    The relevant content of the Bookkeeping Service - Franchise Orientation Program, and the Bookkeeping Service Business School Presentation, did not take things much further than the description of “Bookkeeping Services” in cl 2 of the standard form DBS Agreements which I have extracted above.

460    The applicant relied upon the following parts of the Bookkeeping Service - Franchise Orientation Program:

(a)    Slide 2:

DBS - Domino’s Bookkeeping service

Mandatory service for all new franchisees

Available to existing franchisees upon request

Payroll and Bookkeeping functions

(Emphasis in original.)

(b)    Slide 2 also included the following annotation beneath the slide:

Facilitator to say: The aim of the service is to use the existing business knowledge of the team to make your job easier and allow you to concentrate on running and building your new business.

(c)    Slide 3:

Weekly payroll up to ABA file stage - franchise then uploads file to bank

Pay rate reviews in accordance with the award and government guidelines

ConnX - employee self-service system. Payslips, payment summaries, etc

Monthly superannuation and deduction reports

PAYG Payment summaries and reporting

(Emphasis added.)

(d)    It is common ground between the parties that the reference to “award” would have been understood by franchise operators as a reference to the relevant enterprise agreement.

(e)    Slide 20 (which did not appear in every version):

Homework

Login to DOTTI and complete the associated module.

(Emphasis in original.)

7.4.5.4    Bookkeeping Service Business School Presentation

461    The applicant relied upon the following part of the Domino’s Bookkeeping Service Business School Presentation on Slide 2:

The DBS Services include:

•    Weekly payroll processing up to ABA file stage - franchisee then uploads ABA file to the bank

•    Pay rate reviews in accordance with the award and government guidelines

•    Monthly superannuation and deduction reports

•    Preparation of monthly financial accounts

•    Upload monthly Profit and Loss statement to the Domino’s portal

•    Preparation and lodgement of quarterly BAS and/or monthly IAS

•    Preparation of PAYG Payment Summaries - reporting and lodging the annual payment summaries directly with the ATO

(Emphasis added.)

7.4.5.5    Whether it is likely that franchise operators read the DBS Documents

462    In relation to the Bookkeeping Services Policy, Domino’s submitted, in effect, that it is unlikely that many franchise operators read it. In support of that contention it alleged that only 1% of all primary franchisees and secondary contacts downloaded the Bookkeeping Services Policy. For the reasons I have explained, that evidence is not probative as to whether franchise operators read the document. The document could be read by franchise operators on the web browser.

463    Further, Domino’s argued that only those franchise operators who used DBS during the alleged period were likely to have read the DBS Documents. I accept that. In my view it is more likely than not that only franchise operators who used DBS during the Relevant Period, or who were interested in using DBS, would have bothered reading the DBS Documents. That subset of franchise operators is, however, substantial. As I have said, Mr Potter testified that there were 313 Franchise Stores that used DBS during the calendar years 2017 to 2019. Ms Wright testified that, during the Relevant Period, approximately 46.1% of all Franchise Stores used DBS at some point for some period of time, and that 56.6% of workers who worked at least one shift during the Relevant Period worked at a Franchise Store that used DBS.

464    Having regard to the fact that:

(a)    from March 2014 until the end of the Relevant Period, Domino’s provided hard copies of either the Bookkeeping Service - Franchise Orientation Program or the Bookkeeping Service Business School Presentation to new franchise operators as part of their induction training;

(b)    from 1 September 2012 until the end of the Relevant Period (except for a three-month period) new franchise operators not related to an existing franchise operator were required to use DBS;

(c)    on the face of the documents, those presentations were important to franchise operators as they comprised training materials in relation to DBS that they were required to use; and

(d)    induction training was compulsory and from May 2014 attendance was recorded,

it is appropriate to infer that all new franchise operators (apart from those who joined during the three-month period from 1 September 2014) from 4 March 2014 until 28 March 2017 read the Bookkeeping Service - Franchise Orientation Program; all new franchise operators from 29 March 2017 until the end of the Relevant Period read the Bookkeeping Service Business School Presentation; and all of those persons read and executed a DBS Agreement.

465    That inference applies to Dominoids since it used DBS, and it does not apply to MC Pizza since it did not use DBS at any point.

7.5    Conclusion

466    To recap, I find that during the Relevant Period, Domino’s provided:

(a)    the following documents to prospective franchise operators, doing so in standard or generic form:

(i)    the Franchise Information to all prospective franchise operators;

(ii)    of the Franchise Agreement Documents:

(A)    sub-franchise agreements to all prospective franchise operators. By definition, every franchise operator entered into a sub-franchise agreement; and

(B)    Business Sale and Purchase Agreements and Store Asset Rental Management Deeds to some prospective franchise operators;

(iii)    the Franchise Disclosure Documents to all prospective franchise operators; and

(b)    each category of documents comprising the Compliance Information to franchise operators during the life of their sub-franchise agreements, doing so in standard or generic form.

I reiterate that neither the Business Sale and Purchase Agreements nor the Store Asset Rental Management Deeds are important in the case.

467    Domino’s submissions only went to whether it provided those documents to some franchise operators rather than to all of them. In relation to the Compliance Information, I find that during the Relevant Period, Domino’s provided each of the documents comprising the Compliance Information to either all franchise operators or to a substantial cohort of them. I am satisfied that Domino’s provided the most important documents in the case, being the sub-franchise agreements, Domino’s policy documents, the Fair Work Training Presentation, the Workplace Laws Training Manual, the TANDA Training Materials and the Pay Rate Notices to all franchise operators, and that Domino’s provided the DBS Documents to those using DBS, which comprised a different proportion of the franchise operators at different times, but was a large cohort numerically.

468    I am therefore satisfied that Domino’s engaged in the conduct that the applicant alleged conveyed the Franchise Representations or, alternatively, the Franchise Opinion Representations.

469    I found little force in the various attempts by Domino’s to downplay the significance of the documents that it provided to franchise operators.

470    First, as previously noted, in relation to those documents and training modules that it uploaded to DOTTI, Domino’s submitted that only those franchise operators who were in existence at the time and downloaded the document or viewed it could be treated as having received it. I do not accept that. Once uploaded to DOTTI by Domino’s those documents could be viewed by franchise operators who later joined the Domino’s network. Thus, in my view it provided those documents to all franchise operators from the date it uploaded them.

471    Second, as previously noted, Domino’s submitted that many of the relevant documents that it had uploaded to DOTTI were downloaded by very few franchise operators, and that there were many documents that neither Dominoids nor MC Pizza downloaded. I do not accept that. As I have said, Domino’s did not adduce any evidence as to the documents downloaded by Dominoids or MC Pizza or as to the documents downloaded from DOTTI by franchise operators in general. Its submission was left without supporting evidence. In any event, the submission went nowhere because the applicant gave unchallenged evidence that documents could be viewed on DOTTI without downloading them.

472    Third, in relation to the TANDA Training Materials that it uploaded to DOTTI, Domino’s submitted that many of the documents would only be relevant to those franchise operators who were in operation from some time in the first half of 2017. I accept that, but that is still a substantial cohort of franchise operators. In its answers to interrogatories Domino’s stated that, as at 9 April 2017, there were 580 Franchise Stores in Australia, and by the end of the Relevant Period there were 621 such stores. I infer that from early 2017 until the end of the Relevant Period, the TANDA Training Materials were highly relevant to franchise operators, and likely to be read by them once provided because use of TANDA was to be compulsory from 1 July 2017.

473    Fourth, in relation to documents that Domino’s sent by email to franchise operators (notably the Fair Work Training Presentation and the Workplace Laws Training Manual, emailed on 2 May 2012, and the series of Pay Rate Notices emailed from June 2013 until June 2017), Domino’s submitted that only those franchise operators who were in existence at the time the email was sent could possibly have received it. I accept that, but that comprises all franchise operators at the points in time that Domino’s sent those documents. Domino’s sent the Pay Rate Notices to all franchise operators regularly throughout the Relevant Period.

474    Fifth, Domino’s submitted that whether franchise operators then read those emails was another question. It said in submissions that it would seek to deploy evidence in relation to whether the franchise operators read the emails (i.e., computer evidence that shows whether an email was read). However, in relation to the applicant’s personal claim, Domino’s did not adduce any such evidence to show that Dominoids and MC Pizza did not read those emails. In relation to the Common Questions, Domino’s did not adduce any such evidence to show that any franchise operator during the Relevant Period did not read those emails. Thus, there is no evidence that any franchise operator did not read the relevant emails. For the reasons I have explained, I consider it appropriate to infer that all franchise operators who received those emails read them.

475    Sixth, in relation to the documents Domino’s provided to new franchise operators during their induction or other training (either in hardcopy or otherwise), Domino’s submitted that only those franchise operators who were both new at that time and in receipt of such training after the document was published could have received the document. I accept that, but that group comprises a substantial cohort of franchise operators. Domino’s answers to interrogatories show that there were 421 Franchise Stores in Australia as at 30 June 2013 and 621 Franchise Stores by the end of the Relevant Period. Taking into account that, in that period, some stores were likely to have ceased to operate and some of the additional stores are likely to have been operated by existing franchise operators, it is reasonable to infer that approximately 200 franchise operators received induction training during the Relevant Period.

476    I am satisfied that Domino’s engaged in the conduct alleged to give rise to the Franchise Representations and the Franchise Opinion Representations. The answers to the relevant Common Questions are as follows.

7.5.1    Common Question 1

477    Common Question 1 asked the following:

Did Domino’s provide to some or all Prospective Franchise Operators or Franchise Operators:

(a)    The Franchise Information 2FASOC [28]

(b)    The Franchise Agreement Documents 2FASOC [28B]

(c)    The Franchise Disclosure Documents 2FASOC [28C]

(d)    The Compliance Information 2FASOC [29], [29A], [29B], [29C] and [29D]

(e)    The Disclosure Documents AD [28A]

together, “the Pleaded Information”.

478    For the reasons I have explained, the answer to each of Common Questions 1(a) to (e) is “yes”.

7.5.2    Common Question 1A

479    Common Question 1A asked:

If the answer to any part of question 1 is “yes”, which parts of the Pleaded Information were provided to:

(a)    all Franchise Operators; or

(b)    any of the categories of Franchise Operators identified by the Applicant’s in response to Order 2 of the orders of Justice Murphy made 29 August 2022,

in the Relevant Period.

480    I now turn to answer this Common Question in relation to each type of “Pleaded Information”.

7.5.2.1    The Franchise Information

481    I find that during the Relevant Period, Domino’s provided:

(a)    the Franchise Information to all prospective franchise operators (including franchise operators renewing or extending the term or scope of a sub-franchise agreement);

(b)    the Franchise Agreement Documents as follows:

(i)    sub-franchise agreements to all prospective franchise operators (including all franchise operators renewing or extending the term or scope of a sub-franchise agreement), doing so in uniform or generic terms;

(ii)    Business Sale and Purchase Agreements to those prospective franchise operators and franchise operators who entered into such an agreement (including franchise operators who appear in the Store Transaction Records in each instance in which the relevant transaction was a species of “store sale”); and

(iii)    Store Asset Rental Management Deeds to those prospective franchise operators and franchise operators who entered into such an agreement (which included each instance in which the Store Transaction Records state that the relevant transaction was a “management deed”);

(c)    the Franchise Disclosure Documents (and the Disclosure Documents) in substantially the same terms to all prospective franchise operators (including franchise operators renewing or extending the term or scope of a sub-franchise agreement); and

(d)    the Compliance Information to franchise operators as detailed above, which may be summarised as follows:

(i)    in relation to the Fair Work Training Presentation, and the Workplace Laws Training Manual which Domino’s sent by email to all franchise operators on 2 May 2012 (2FASOC [29D(a)]), Domino’s provided those documents to, and they were accessible by, all existing franchise operators at that time;

(ii)    in relation to the materials that Domino’s uploaded to DOTTI, being:

(A)    the Fair Work Laws: Franchisee Orientation Program uploaded on 28 October 2014;

(B)    the Fair Work Training Presentation uploaded on 2 May 2012, and on an unknown date as a training module; and

(C)    the Workplace Laws Training Manual uploaded on 2 May 2012,

(iii)    Domino’s made those documents available to, and they were accessible by, all franchise operators from the date that they were each uploaded until the end of the Relevant Period.

(iv)    in relation to the materials that Domino’s provided to all new franchise operators who attended compulsory induction training, Domino’s provided those documents to new franchise operators in the following periods:

(A)    the Fair Work Training Presentation and the Workplace Laws Training Manual in the period from 2 May 2012 to the end of the Relevant Period;

(B)    the Fair Work Laws: Franchisee Orientation Program in the period from 20 May 2014 to the end of the Relevant Period; and

(C)    the Industrial Relations Facts Presentation in the period from 8 September 2016 to the end of the Relevant Period;

(v)    in relation to the Pay Rate Notices that Domino’s sent to all franchise operators by email from June 2013 to June 2017, Domino’s provided those documents to, and they were accessible by, all franchise operators during that period;

(vi)    in relation to the TANDA Training Materials that Domino’s uploaded to DOTTI on various dates, Domino’s made those documents available to, and they were accessible by, all franchise operators from the date that they were each uploaded until the end of the Relevant Period;

(vii)    in relation to the Employment Law Compliance Policy Version 1.2 that Domino’s uploaded to DOTTI on 8 October 2015, Domino’s made that document available to, and it was accessible by, all franchise operators from that date until 18 July 2017; and

(viii)    in relation to the DBS Documents:

(A)    Domino’s uploaded the Bookkeeping Services Policy Version 3.1 to DOTTI on 25 June 2015, and thereby made it available to and accessible by all franchise operators from that date until 22 September 2017;

(B)    Domino’s provided the Bookkeeping Service - Franchise Orientation Program to all new franchise operators undergoing induction training from 4 March 2014 until 28 March 2017; and

(C)    Domino’s gave the Bookkeeping Service Business School Presentation to all new franchise operators undergoing induction training from 29 March 2017 until the end of the Relevant Period.

482    I conclude that Domino’s provided the Pleaded Information to franchise operators and prospective franchise operators. It was not necessary for the applicant to call evidence from any individual franchise operator to show that they read the particular document relied upon. The relevant conduct of providing the documents occurred when Domino’s disseminated those documents to franchise operators in a manner that would be expected to bring the document to their attention: Dover at [105] (O’Bryan J). I am satisfied that by making the relevant documents available to franchise operators on DOTTI, by sending the relevant documents to franchise operators by email, and by providing the relevant documents to new franchise operators as part of their induction training, Domino’s was communicating with its franchise operators in a way that it expected would bring the documents to their attention.

483    In any event, for the reasons I have explained, in respect of each category of document I infer that those franchise operators to whom the relevant documents:

(a)    were made available by Domino’s on DOTTI;

(b)    were sent by Domino’s by email; and

(c)    were provided by Domino’s as part of induction training,

were more likely than not to have read those documents.

7.5.3    Common Question 2

484    Common Question 2 asked as follows:

Did any of the Pleaded Information provided contain a disclaimer of the type alleged at AD [30.2.5], [48.3.1]? To the extent that a disclaimer was provided, what was its effect?

485    I find that the Pleaded Information contained the following disclaimers:

(a)    The Pre-2015 Code Disclosure Document included the following statement on the opening page under the heading “Statement”:

…You should make your own enquiries about the Sub-Franchise and about the business of the Sub-Franchise.

The Master Franchisee strongly recommends that you have the Sub-Franchise Agreement explained to you by a lawyer experienced in franchising and also that you obtain independent accounting and business advice on the sub-franchise proposition from an accountant

(Emphasis in original.)

(b)    The 2015 Code Disclosure Document included the following statement on the opening page under the heading “Statement”:

You should make your own enquiries about the Sub-Franchise and about the business of the Sub-Franchise.

You should get independent legal, accounting and business advice before signing the Sub-Franchise Agreement.

(c)    The Fair Work Training Presentation said the following on slide 36:

If you require further information from the Fair Work Ombudsman, you can contact the Fair Work Infoline on 13 13 94 or visit www.fairwork.gov.au

(Emphasis in original.)

(d)    The Fair Work Training Presentation and the Workplace Laws Training Manual each contained a disclaimer in the following terms:

The content of this document is intended as a guide only and in no way constitutes legal advice on behalf of [Domino’s]. When making any decisions regarding employees, advice should be sought from Fair Work Australia, the Fair Work Ombudsman, or an independent legal advisor.

(e)    The Employment Law Compliance Policy Version 1.2 contained the following statements:

It is the Sub-Franchisee’s sole responsibility to inform themselves of, and comply with, their legal obligations in connection with the employment of team members.

(f)    and

This Policy is not intended as legal advice. Sub-Franchisees must obtain their own legal, accounting and business advice in connection with the operation of their stores and it is their sole responsibility to maintain compliance with all applicable laws.

(g)    Clause 2.3.1 of the Domino’s Pizza Code of Conduct contained the following statement:

2.3.1    Know the laws and policies that apply to your work

You must have a working knowledge and apply the laws, policies, industrial entitlements and relevant State or Territory road and traffic regulations that apply to your work, including the Code of Conduct.

Managers have a special responsibility to assist employees to understand relevant legislation or policies including specific legal requirements.

All employees are entitled to have access to legislation, policies and industrial instruments such as awards that apply to their work.

(Emphasis in original.)

486    I will deal with the effect of those alleged disclaimers when considering whether the alleged representations were conveyed.

8.    THE CONDUCT ALLEGED TO CONVEY THE FRANCHISE CONDUCT IMPLIED REPRESENTATIONS, OR ALTERNATIVELY THE CONDUCT OPINION IMPLIED REPRESENTATIONS

487    The applicant alleged, and Domino’s admitted, that during the Relevant Period it engaged in conduct defined previously as the Franchise Conduct. The Franchise Conduct comprises three categories of conduct (2FASOC [34]):

(a)    providing the centralised Payroll Services (2FASOC [33]) through DBS to franchise operators via a contractual arrangement with those franchise operators who used it;

(b)    configuring a payroll system (which included the Payroll Services and other computer systems) that calculated employee entitlement rates and conditions by reference to the relevant Agreements and not by reference to the Award; and

(c)    Compliance and Audit Activities (2FASOC [32]), in which, amongst other things, if the activities identified that employees were not being paid in accordance with the Agreements, franchise operators were told that the employees needed to be so paid.

488    It is alleged that by engaging in the Franchise Conduct, Domino’s conveyed three implied representations of fact to franchise operators (which I call the Franchise Conduct Implied Representations) and in the alternative, conveyed three implied representations of opinion to franchise operators (which I call the Conduct Opinion Implied Representations).

489    I now turn to set out the Franchise Conduct (which Domino’s essentially admitted).

8.1    Compliance and Audit Activities

490    The applicant alleged (2FASOC [32]):

Since no later than December 2011, and in the course of managing the Domino’s Business, Domino’s engaged in conduct in relation to the performance of compliance and audit activities (the Compliance and Audit Activities).

Particulars

1.    Since no later than December 2011, Domino’s undertook compliance activities pursuant to the terms of two compliance deeds into which Domino’s entered with the FWO in 2011 and 2014 respectively.

2.    The compliance activities included conducting audits and reporting on the results of those audits in relation to wages and allowances paid to Delivery Drivers and In-Store Workers employed to perform work in Corporate Stores and in Franchise Stores.

3.    The compliance audits were predicated upon the basis that the rates of pay required to be paid and the terms and conditions of employment required to be afforded to Delivery Drivers and In-Store Workers employed by all Corporate Stores and Franchise Stores were derived from the Agreements.

4.    Since no later than July 2013, Domino’s provided Compliance Information to Prospective Franchise Operators and Franchise Operators, and the particulars to paragraph 29 are included.

491    Domino’s admitted those allegations (AD [32]).

492    Domino’s said that the Compliance and Audit Activities were part of Domino’s Business’ Internal Existing Employment Systems (AD [32]). It stated (AD [27S]) that since at least April 2012, it had configured and operated the internal employment affairs of its business, including its operating procedures, training, software systems and audits, on the basis that the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers in both Corporate Stores and Franchise Stores were governed by the terms of the Agreements (as adjusted).

493    The applicant further alleged (2FASOC [32A]) that during the Relevant Period Domino’s conducted audits of franchise operators, and where an audit established that employees were not being paid in accordance with the relevant Agreements, Domino’s told those franchise operators that those employees should have been paid in accordance with the relevant Agreements (adjusted as agreed with the SDA), and never stated that the franchise operators ought to have paid those employees in accordance with the Award.

494    Domino’s admitted that it had made statements to that effect (AD [32A.1]).

495    Accordingly, I find that during the Relevant Period Domino’s engaged in the Compliance and Audit Activities as alleged.

8.2    The Payroll Services and configuring the Payroll Services and computer systems

496    The applicant alleged (2FASOC [33]):

At all material times during the Relevant Period, and in the course of managing the Domino’s Business, Domino’s engaged in conduct in relation to provision of:

(a)    centralised payroll services through the bookkeeping service, DBS; and

(b)    services for delivery tracking, roster construction, employee time and attendance and the interpretation of industrial instrument entitlements, including TANDA, Pulse, Payroll Award Interpreter (being a system used prior to the introduction of TANDA to calculate the award applicable to each employee and each shift) and GPS Tracker (being a delivery tracking system),

(the Payroll Services).

Particulars

1.    At all material times during the Relevant Period, Domino’s provided Franchise Operators with access to centralised payroll services hosted, operated or made available by Domino’s.

2.    The centralised payroll service contained a method of ascertaining the applicable rates of pay and terms and conditions of employment required to be afforded to Delivery Drivers and In-Store Workers and a method for calculating the amounts of pay and the periods of leave or other benefits required to be paid or afforded to those Delivery Drivers and In-Store Workers in each pay period.

3.    The rates of pay and terms of conditions of employment upon which calculations were made by the centralised payroll service were derived from and configured around the requirements of the Agreements.

4.    Since 1 September 2012, Domino’s required all new Franchise Operators to use DBS for a period of at least 24 months from the date of commencement of the applicable sub-franchise agreement for services including payroll, bookkeeping, accounting and reports. The payroll services provided by DBS included processing the weekly payroll, provision of payslips to employees, preparing the bank upload file for payroll payment to the Franchise Operator, and ensuring pay rates were updated according to the applicable award. DBS performed functions including calculating the wages to be paid to In-Store Workers and Delivery Drivers, and determining the terms and conditions to be afforded, to In-Store Workers and Delivery Drivers.

5.    Since no later than 1 July 2017, Domino’s required all Franchise Operators to use an electronic rostering, attendance and time system known as TANDA which was configured around the requirements of the Agreements.

I assume that the reference to the “applicable award” in particular (4) is a typographical error, and it was intended to state, “the applicable Agreement”.

497    Domino’s admitted providing the Payroll Services (AD [33]). Domino’s also admitted that, during the Relevant Period, the Payroll Services it provided to those franchise operators who used DBS were configured to calculate the amounts to be paid to employees in accordance with the Agreements (as adjusted), subject to the Deemed Base Rate that had been approved by the FWO (AD [33.5]). The “Deemed Base Rate” means the base rate of pay required to be paid by Domino’s and by franchise operators to Delivery Drivers and In-Store Workers under the Award or to those to whom the Award did not apply but a WR Agreement did.

498    In making the admission at AD [33], Domino’s referred to and relied on AD [31.10] and [31.11] in which:

(a)    in relation to DBS, Domino’s said that:

(i)    since about 1 September 2012, as part of Domino’s Business’ Internal Existing Employment Systems, new franchise operators not related to another existing franchise operator were required to use DBS for a period of 24 months;

(ii)    existing franchise operators were permitted to engage DBS to provide payroll services, as part of Domino’s Business’ Internal Existing Employment Systems;

(iii)    DBS offered payroll services that included processing the weekly payroll, the provision of payslips to employees, and the preparation of bank upload files for franchise operators; and

(iv)    DBS had been configured to calculate amounts to be paid to employees in accordance with the Agreements and those agreed rates, but subject to the Deemed Base Rate that had been approved by the FWO; and

(b)    in relation to TANDA, it said that:

(i)    TANDA was part of Domino’s Business’ Internal Existing Employment Systems and was able to be used by franchise operators from about 2016;

(ii)    from 1 July 2017, those franchise operators who had engaged DBS to provide payroll services were also required to use TANDA;

(iii)    TANDA constructed rosters and recorded employee time and attendance; and

(iv)    during the Relevant Period, TANDA had been configured to calculate amounts to be paid to an employee in accordance with the Agreements and those agreed rates, but subject to the Deemed Base Rate that had been approved by the FWO.

499    The applicant further alleged (2FASOC [33A]):

As part of Domino’s conduct in providing the Payroll Services

(a)    in relation to DBS, Domino’s stated to franchise operators in the Bookkeeping Services Agreement that:

(i)    “Domino’s represents and warrants to the sub-franchisee that: it has the necessary skills, experience and resources and is properly qualified to complete the Bookkeeping Services to a professional standard”; and

(ii)    “Domino’s represents and warrants to the sub-franchisee that: The services to be provided under this Agreement are fit for their intended purpose in accordance with generally accepted accounting practices and principles. Domino’s acknowledges that all services provided will be of professional and workmanlike quality and will be provided within a reasonable time”; and

(b)    in relation to TANDA, during the delivery by Domino’s of training to Franchise Operators which included:

(i)    the delivery of the “TANDA - Bookkeeper Webinar” dated 13 December 2016, a representative of TANDA stated to Franchise Operators (at 11.40-13.00mins) that “so what TANDA basically does, it’s worked with Domino’s to build up the award rules that apply to Domino’s users or employees at this stage, we’ve crafted those rules, we’ve built them into the TANDA system and they will therefore apply for every employee depending on their circumstances, so that includes higher duties, so a driver that might be acting as an In-Store, it includes overtime...and certainly we have other allowances and things built into that”;

(ii)    the provision to Franchise Operators of a “TANDA Information Kit” dated May 2017, Domino’s stated to Franchise Operators (at page 8) that TANDA has the Domino’s award details pre-loaded, and overtime and public holiday rates will automatically be applied to roster calculations and timesheets;

(iii)    the provision to Franchise Operators of a “Policy - TANDA Software Implementation” document dated 18 May 2017, Domino’s stated to Franchise Operators that “…every store in Australia and New Zealand will be required to have the program up and running by 1 July 2017… The installation of the TANDA workforce management program will assist DPE and its Franchisees achieve better compliance with employee entitlements”; and

(iv)    the delivery of the “TANDA Timesheet Webinar” dated 24 May 2017, Domino’s stated to Franchise Operators (at 6.05mins) that “Payroll will be managing all the payroll side of things for you in TANDA, so the pay rates and all that kind of stuff. Just be aware that payrates don’t come from Pulse, they actually come from our payroll system.”

500    Domino’s admitted 2FASOC [33A(a)] above in relation to DBS (AD [33A]), save that it relied on cl 16.7 of the DBS Agreements (reproduced above), that provided that:

Domino’s does not provide any legal or accounting services, opinions or advice in respect of the Bookkeeping Services or the results of the performance of the Bookkeeping Services.

Domino’s admitted 2FASOC [33A(b)] above in relation to TANDA.

501    Finally, the applicant alleged that the Payroll Services and each of the computer systems that operated during the Relevant Period calculated the rates of pay and conditions of employment of Delivery Drivers and In-Store Workers by reference to the relevant Agreements (as adjusted) plus additional payments, and not by reference to the Award (2FASOC [33B]). Domino’s admitted that (AD [33B]).

502    Accordingly, I find that Domino’s provided the Payroll Services and configured the Payroll Services and computer systems as alleged.

9.    THE FRANCHISE REPRESENTATIONS

503    I have found that, during the Relevant Period, Domino’s engaged in the conduct alleged to have conveyed the Franchise Representations to franchise operators (or alternatively the Franchise Opinion Representations). I now turn to determine whether that conduct, as found, conveyed one or more of the alleged Franchise Representations, being representations of fact. I later deal with the alleged representations of opinion.

10.    WHETHER DOMINO’S CONDUCT CONVEYED THE FRANCHISE REPRESENTATIONS

10.1    The Franchise Representations

504    The alleged Franchise Representations are as follows (2FASOC [30]):

From not later than April 2012, Domino’s represented by providing the Franchise Information, the Franchise Agreement Documents, the Franchise Disclosure Documents, and Compliance Information to Franchise Operators and to Prospective Franchise Operators, that:

(aa)    the terms and conditions of all Domino’s employees were governed by two enterprise bargaining agreements, the first of which provided the conditions for Delivery Drivers, and the second of which provided the conditions for In-Store Workers;

(a)    one or more of the Agreements (as affected by the Agreed Base Rate Increases and the Deemed Base Rates) was binding upon all Franchise Operators with respect to the rates of pay required to be paid, and the terms and conditions of employment required to be afforded, to all Delivery Drivers and In-Store Workers employed by Franchise Operators to perform work in Franchise Stores;

(b)    one or more of the Agreements (as affected by the Agreed Base Rate Increases and/or the Deemed Base Rates) applied to each of the Franchise Operators with respect to the rates of pay required to be paid, and the terms and conditions of employment required to be afforded, to all Delivery Drivers and In-Store Workers employed by Franchise Operators to perform work in Franchise Stores;

(c)    the Agreements (as affected by the Agreed Base Rate Increases and/or the Deemed Base Rates) contained the rates of pay required to be paid, and the terms and conditions of employment required to be afforded, to all Delivery Drivers and In-Store Workers employed to perform work by Franchise Operators in Franchise Stores;

(d)    the rates required to be paid, and the terms and conditions of employment required to be afforded to, all Delivery Drivers and In-Store Workers employed to perform work in Franchise Stores were the same as those required to be paid and afforded to Delivery Drivers and In-Store Workers employed to perform work in Corporate Stores; and/or

(e)    it was lawful to pay Delivery Drivers and In-Store Workers employed to perform work in Franchise Stores, the rates of pay, and to afford them the terms and conditions of employment, set out in the Agreements (as affected by the Agreed Base Rate Increases and/or the Deemed Base Rates),

(together and severally the Franchise Representations).

505    As is apparent, there is little difference between the six alleged representations of fact.

10.2    Domino’s submissions

506    Domino’s submissions in relation to whether its impugned conduct conveyed the Franchise Representations were unclear, and it ultimately contended that it was impossible for the Court to answer Common Questions 3, 4 and 5. In large part, the lack of clarity in its submissions seemed to arise because it (erroneously) approached the question as to whether its impugned conduct conveyed the alleged representations by reference to what its conduct was likely to have conveyed to Dominoids and MC Pizza, rather than by reference to what its conduct was likely to have conveyed to an ordinary or reasonable member of the franchise operator class.

507    Domino’s made the following submissions, restricted to Dominoids or MC Pizza, regarding the relevant facts and context in light of which, on its argument, it falls to be determined whether its conduct conveyed the alleged Franchise Representations (or Franchise Opinion Representations). I treat these submissions as relevant to the task of determining whether it is likely that Domino’s impugned conduct conveyed the Franchise Representations to the ordinary or reasonable franchise operator.

508    Domino’s submitted in relation to Dominoids, and I accept, that Ms Smith was an experienced franchise operator. The evidence shows that she had worked at Domino’s Stores since she was 14. She had worked in many different stores, and she operated four Franchise Stores by the age of 23. She was ambitious and had always wanted to be a manager. She believed training was the most important factor in running a successful store and she attended “plenty of education classes and seminars”. Ms Smith would have had responsibility for a significant number of employees across her four stores. For example, in the period from June 2015 to August 2016, Dominoids had 134 employees working at the North Caboolture Store (as I infer, mostly part-time employees), with a total salary and wages bill of $564,814. In the single pay period ending 25 October 2015, a total of 44 employees were paid wages for work the previous week. Those matters, and the fact that Ms Smith purchased the North Caboolture Store from Domino’s on 18 December 2012 for $425,000 and that by 29 August 2016, the store’s value had increased to $999,686, indicate that she had a good level of commercial nous and business acumen.

509    Domino’s relied upon a series of factual matters in relation to Dominoids and Ms Smith, each of which I accept.

(a)    First, that Ms Smith received the Fair Work Training Presentation which contained:

(i)    38 PowerPoint slides that set out a range of employment-related information, including information about the FW Act, leave entitlements, record-keeping, payslips, termination, and agreement-making

(ii)    Slide 32, which said:

The terms and conditions of Domino’s Employees are governed by two Enterprise Bargaining Agreements (EBA). The 2001 agreement provides the conditions for Drivers, and the 2009 agreement for In-stores and Managers

(iii)    Slides 33 to 35, which set out information regarding the transitioning of wage rates to the Award in 2014, depending on whether an enterprise agreement applies to a particular Domino’s business;

(iv)    Slide 36, which explained that the role of the FWO included educating employers about ensuring compliance with workplace laws. It said that where appropriate the FWO would commence proceedings against employers for breaches of workplace laws. The slide then said:

If you require further information from the Fair Work Ombudsman, you can contact the Fair Work Infoline on 13 13 94 or visit www.fairwork.gov.au.

(Emphasis in original.)

(v)    A disclaimer in the following terms, on the final slide:

The content of this document is intended as a guide only and in no way constitutes legal advice on behalf of Domino’s Pizza Enterprises Limited. When making any decisions regarding employees, advice should be sought from Fair Work Australia, the Fair Work Ombudsman, or an independent legal advisor.

(vi)    The presentation did not define the 2001 or the 2009 Agreements and did not provide an explanation of the terms and conditions to be found in either Agreement, nor the circumstances in which an enterprise agreement might apply to a Domino’s Store.

(b)    Second, that Ms Smith received the Workplace Laws Training Manual, which was 74-pages long contained:

(i)    A range of employment-related information, including information about the FW Act, leave, record-keeping, termination, consultation, dispute resolution and privacy.

(ii)    The same information as set out in slides 32 to 35 of the Fair Work Training Presentation, including the statement that:

The terms and conditions of Domino’s Employees are governed by two Enterprise Bargaining Agreements (EBA). The 2001 agreement provides the conditions for Drivers, and the 2009 agreement for Instores [Workers] and Managers.

(iii)    The following additional statement:

On 1 January 2014 wages rates will be no less than the Modern Award. The terms and conditions of the employees will continue to be dictated by the 2001/09 EBAs until a party decides to either terminate or renegotiate one of the agreements…

(iv)    The following statements in relation to minimum wages:

From 1 January 2010, modern awards replaced most existing awards and transitional pay scales, and contain the minimum terms and conditions for employees in particular industries and occupations. While modern awards contain minimum wages, some modern awards have transitional arrangements in place, under which the wage-related components may be phased in over five years.

Employers should check their relevant modern award(s) to determine if transitional arrangements apply. If there are no transitional arrangement, the modern award pay rates applied from 1 January 2010….

For further information on modern awards, including who is covered by a modern award and the appropriate transitional arrangements, please go to www.fairwork.gov.au.

(v)    Examples providing information about the obligations on an employer if an award applies to the employer. For example, the section entitled: “Which dispute resolution procedure applies to me or my business?” states:

If there is no enterprise agreement in the workplace or an enterprise agreement does not cover the employees involved in the dispute, the procedure outlined in the modern award that applies to the employer and employee should be followed.

(vi)    A disclaimer on its front cover in the same terms as the Fair Work Training Presentation.

(c)    Third, that when Ms Smith was a prospective franchise operator in relation to the North Caboolture Store in December 2012, she was provided with a Pre-2015 Code Disclosure Document, which told her that:

The Master Franchisee strongly recommends that you have the Sub-Franchise Agreement explained to you by a lawyer experienced in franchising and also that you obtain independent accounting and business advice on the sub-franchise proposition from an accountant/business advisor experienced in franchising before signing the Sub-Franchise Agreement.

(Emphasis in original.)

(d)    Fourth, that when Dominoids entered into a sub-franchise agreement for the North Caboolture Store, Dominoids certified and acknowledged that it had been “strongly advised” by Domino’s to obtain independent legal, accounting and business advice in relation to the franchise documentation. Dominoids did not obtain that advice, but it was already operating the Beerwah Store at that time.

(e)    Fifth, that Ms Smith was operating the North Caboolture Store when the Employment Law Compliance Policy Version 1 was first published, which required franchise operators to “comply with all applicable Australian employment laws in connection with the operation of their stores” and said that they “must: … pay all employees at a rate not less than the minimum rates provided for under the applicable Domino’s Enterprise Bargaining Agreement (EBA) (where applicable to the employee)”. It relied on the fact that the policy included the following express disclaimers:

It is the Sub-Franchisee’s sole responsibility to inform themselves of, and comply with, their legal obligations in connection with the employment of team members

(f)    And:

This Policy is not intended as legal advice. Sub-Franchisees must obtain their own legal, accounting and business advice in connection with the operation of their stores and it is their sole responsibility to maintain compliance with all applicable laws

(g)    Sixth, that through the Domino’s Pizza Code of Conduct, Dominoids was told the following:

2.3.1    Know the laws and policies that apply to your work

You must have a working knowledge and apply the laws, policies, industrial entitlements and relevant State or Territory road and traffic regulations that apply to your work, including the Code of Conduct.

Managers have a special responsibility to assist employees to understand relevant legislation or policies including specific legal requirements.

All employees are entitled to have access to legislation, policies and industrial instruments such as awards that apply to their work.

510    Domino’s submitted that the Fair Work Training Presentation covered some complex topics, and that the Workplace Laws Training Manual contained information on topics of even greater complexity, and that the information provided was “basic and pitched at a high level”, which suggested to the franchise operator recipients that they were expected to make further inquiries and seek their own further advice. It said that that suggestion was confirmed by the express terms of the disclaimer in both documents, which stated they were intended as a guide only, in no way constituted legal advice by Domino’s, and that before making any decisions regarding its employees the franchise operator should seek advice from the regulator or an independent adviser.

511    Domino’s made similar submissions in relation to MC Pizza and/or Mr Glynn, Domino’s submitted and I accept that Mr Glynn is or was an experienced franchise operator. He started working in a Domino’s Store as a junior pizza maker. He worked for and was trained by Mr Meij (who went on to become Domino’s CEO), including by working as a Delivery Driver and a Store Manager. He was ambitious and he held many positions within Domino’s including Regional Manager and State Manager. He was named Regional Manager of the Year three times and was also the State Manager of the Year.

512    Together with Mr Benson, Mr Glynn operated three Franchise Stores in the Relevant Period, purchasing his first store (Burpengary) in 2008, and he had led his stores to achieve record sales. He was the winner of the Big Red award for the highest average weekly units sold amongst multi-unit franchisees. He would have had responsibility for a large number of employees across his three stores. For example, in the 2016/17 financial year, MC Pizza had 88 employees (as I infer, mostly part-time and/or casual) at the North Caboolture Store and a total annual salary and wages bill of $527,376. In the 2017 calendar year the North Caboolture Store had sales of $2,131,083, and paid wages of $441,518; the Morayfield Store had sales of $2,473,296 and paid wages of $483,434; and the Burpengary Store had sales of $2,330,248 and paid wages of $447,563. In my view he is likely to have had a high level of intelligence and commercial acumen or nous.

513    Domino’s relied on a series of factual matters, each of which I accept.

(a)    First, that Mr Glynn was a franchise operator when Domino’s sent out the June 2009 Australian Franchisee Email. It is therefore likely that he was told that Domino’s had received written confirmation that the 2005 Agreement covered franchisees that had not registered their own agreement, whereas some workplace inspectors had initially formed a different view.

(b)    Second, that Mr Glynn’s entity (High Energy Pizza Pty Ltd) was named in the 2009 Agreement, and he must have known that MC Pizza was not named in any Agreement.

(c)    Third, that Mr Glynn received the Fair Work Training Presentation and the Workplace Laws Training Manual. Domino’s made the same submissions about the effect of those documents as it did in relation to Ms Smith.

(d)    Fourth, that Mr Glynn was a franchise operator when the Employment Law Compliance Policy was first published. Domino’s made the same submissions about the effect of those documents as it did in relation to Ms Smith.

(e)    Fifth, that when MC Pizza was considering entering into a sub-franchise agreement, it was provided with a 2015 Code Disclosure Document which said:

You should make your own enquiries about the Sub-Franchise and about the business of the Sub-Franchise.

You should get independent legal, accounting and business advice before signing the Sub-Franchise Agreement.

(f)    Sixth, that when entering into a sub-franchise agreement MC Pizza certified that it had been advised by Domino’s to obtain independent legal, accounting and business advice in relation to the franchise documentation. MC Pizza did obtain independent legal advice.

(g)    Seventh, as with Dominoids, that through the Domino’s Pizza Code of Conduct, MC Pizza was told that it was required to have a working knowledge of industrial entitlements.

514    Domino’s made several admissions as to what its provision of several Compliance Information documents told Dominoids and MC Pizza. It admitted that:

(a)    It provided Dominoids and MC Pizza with the Fair Work Training Presentation and the Workplace Laws Training Manual on or around 2 May 2012, and that by doing so it told Dominoids and MC Pizza the following:

(i)    “The terms and conditions of Domino’s Employees are governed by two Enterprise Bargaining Agreements. The 2001 agreement provides the conditions for Drivers, and the 2009 agreement for In-stores and Managers”;

(ii)    “From 1 January 2014, all wage rates would be no less than the Modern Award”; and

(iii)    “The terms and conditions of the employees will continue to be dictated by the 2001/09 EBAs until a party decides to either terminate or renegotiate one of the agreements”.

(b)    It subsequently sent emails to both Dominoids and MC Pizza that set out the annual rates of pay for Delivery Drivers and In-Store Workers, that the emails invariably described as the “applicable” rates or rates that were “to apply”.

(c)    Clause 2.4.2 of the sub-franchise agreement it executed with Dominoids provided that Dominoids:

Must comply with the terms and conditions of any enterprise bargaining agreement or other workplace agreement to which the Master Franchisee is a party in respect of its corporate store employees.

(d)    Clause 2.4.2 of the sub-franchise agreement it executed with MC Pizza provided that MC Pizza:

Must comply with any Australian employment laws and regulations and the terms provided under any relevant industrial instrument.

(the Admitted Statements).

515    Domino’s then turned to make its (erroneous) argument that, in the circumstances of the present case, the Court’s task in determining whether the impugned conduct conveyed the alleged representations should be by reference to what each individual franchise operator was likely to understand from that conduct. It denied that the Court’s task was to determine whether Domino’s conduct conveyed the alleged representations by reference to what the conduct was likely to convey to the hypothetical ordinary or reasonable member of the target audience. I have previously rejected Domino’s submissions in that regard and I will not set them out again.

516    In relation to franchise operators more generally, and the answers to the Common Questions, Domino’s submitted that it was necessary for the Court to examine the whole of the relevant facts and conduct in context, including the provision of the disclaimers. It contended that it was not possible to perform such an analysis for other franchise operators, because the Court does not know:

(a)    what document was received by any other franchise operator, or when that document was received;

(b)    the background or knowledge of any other franchise operator; and

(c)    what else was said to a franchise operator by Domino’s or others, nor does it know what enquiries a franchise operator made of another franchise operator, directly or via the Franchise Advisory Council.

Further, it does not know if any franchise operator was legally represented in the Relevant Period, and does not know what communications passed between Domino’s and the franchise operator’s legal advisers. Nor does the Court know if franchise operators had any interactions with the FWO.

10.2.1    Representations of opinion?

517    Domino’s denied that its provision of the Pleaded Information conveyed the Franchise Representations or the Franchise Opinion Representations to Dominoids or MC Pizza (AD [30.3.3], [30A.2.2]-[30A.2.3]), but it contended that, having regard to the subject matter of the representations (which it characterised as being conclusions of law), its statements were about “inherently contestable” matters and could only have been statements or representations of opinion rather than fact.

518    Domino’s accepted the applicant’s statement of the applicable principles for determining whether a statement is one of fact or opinion as “broadly uncontroversial”, subject to three matters:

(a)    That the Court should be cautious in relying upon the decision in Middleton, because that decision concerned statements made by an insurance broker about the cover provided by an insurance policy. Domino’s contended that it has long been accepted statements by insurance companies about the cover provided by their own policies will, wherever possible, be construed as statements of fact: citing KR Handley et al, Spencer Bower and Handley: Actionable Misrepresentation (LexisNexis, 5th ed, 2014) at [2.27].

(b)    That French CJ’s description (in Campbell at [32]) of an opinion as “a statement of ‘judgment or belief of something as probable, though not certain or established’” was in a part of the judgment which concerned statements of general principle and “[i]t is not to be understood as prescribing necessary conditions for what conduct, which is said to contravene s 18 of the [ACL], is an ‘opinion’”: see Norton Property Group Pty Ltd v Ozzy States Pty Ltd [2020] NSWCA 23 at [96] (Leeming JA). I accept that.

(c)    That the applicant’s statement of the applicable principles is “relatively uncontroversial” in the context of statements as to the existence of a fact capable of empirical or scientific proof, but such statements should be differentiated from the statements or representations in the present case, which comprise statements or conclusions of law.

519    Domino’s first two points are not significant in the present case, but its third point is. Domino’s argued that its impugned conduct “conveyed an opinion about the law, our belief as to what the correct answer was” and that its conduct was “therefore not actionable per se”. It noted that Heydon on Contract, Thomson Reuters, 2019 (at [14.280]) states that “the traditional view is that, in general, statements of legal opinion, like other statements of opinion, are not statements of fact and hence not representations”.

520    In this regard, Domino’s relied on Inn Leisure Industries Pty Ltd v McCloy Pty Ltd [1991] FCA 30; 28 FCR 151 at 165, where French J (as his Honour then was) said that the “application of a statute to known facts” fell into the category of cases where “the matter asserted is only a matter of opinion on law, and what has been said is no more than a representation of the fact that the person to whom the opinion is attributed actually holds it”. His Honour said:

Where there is no more than a statement of the result obtained by applying the provisions of the statute to the circumstances of the particular case, there is no representation of fact.

521    It also relied on the statements by Heydon J in Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 at [94], where the High Court considered the effect of representations by Fortescue Mining Ltd to the Australian Stock Exchange through a media release including a statement that the company had “entered into a binding contract” with three Chinese-owned companies (CREC) to build, finance and transfer a railway, port and mine project. ASIC brought a proceeding alleging that the representations constituted misleading or deceptive conduct and its principal complaint concerned the announcement that FMG had a “binding contract” with CREC, when on ASIC’s case their framework agreement was not legally binding. Justice Heydon said (at [94]):

The ASX announcement was not expressly stated in the language of opinion, but what it said about the CREC agreement being a “binding contract” was identifiable as an opinion. The binding quality of an alleged contract is an inherently controversial matter of professional judgment. It is distinct from the historical facts that negotiation occurred and a written agreement was signed. In its early days, the Full Court of the Federal Court, in a judgment to which Bowen CJ was party, said:

An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing.

His Honour’s reference was to Global Sportsman at 88 (Bowen CJ, Lockhart and Fitzgerald JJ).

522    Domino’s submitted that, although in Forrest at [33] the plurality (French CJ, Gummow, Hayne and Kiefel JJ) described the characterisation of representations as either representations of fact or of opinion or of fact or law as being ultimately unprofitable, the “more recent authorities have rather analysed the question by reference to the meaning being conveyed to be rather either one of ‘fact’ or one of the ‘belief’ held by the maker as to the truth of the statement”: citing Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; 101 NSWLR 658 at [2], [17]-[22], [27]-[29], [30] (Bell ACJ, as his Honour then was), Macfarlan JA at [41], [73], [79], Barrett JA at [91]. It contended that the more recent approach is to be preferred because, as Bell ACJ observed in Ireland (at [22]), in “many statements made in everyday life and commerce… matters will often be expressed as objectively the case whereas, in reality, they will (and can only) be statements as to a belief or a judgment”.

523    Domino’s relied heavily on the decision of the New South Wales Court of Appeal in Norton. In that case a property developer (the Principal) entered into an agency agreement with a real estate agent, which entitled the agent to a “buying fee” of 2.2% of the purchase price of certain contiguous properties, if the agent introduced a vendor to the developer and the developer entered into a “contract for the purchase of that property”. The agent introduced some owners of the relevant properties to the developer and the developer entered into option agreements with those owners and paid them option fees. The agent (through his representative) sought payment of buying fees from the developer, including by oral representations, email correspondence and the rendering of invoices to the developer, and the developer paid $200,000 in buying fees to the agent.

524    Ultimately, the options to purchase those properties were not exercised, and the developer sued the agent to recover the buying fees, including on the basis that the agent’s representative engaged in misleading and deceptive conduct as to the developer’s obligation to pay those fees. Justice Leeming (with whom Payne and White JJA relevantly agreed) held that the agent’s conduct in seeking payment of the buying fees was not misleading or deceptive conduct.

525    Justice Leeming explained his reasons for rejecting the claim of misleading or deceptive conduct (at [89]), as follows:

The claimed entitlement to fees was necessarily a statement of legal conclusion, as to the Agent’s entitlement under the Contract. Contrary to submissions made by the Principal, it did not matter whether [the agent’s representative] said, for example, “All we are asking is for our fees that are due and nothing more”, or words to that effect which were repeated on a number of occasions, or else rendered an invoice. All are statements of a legal conclusion of an entitlement to a contractual right. It is immaterial that [the agent’s representative] did not expressly say that his opinion or his position was that the fees were payable. The prohibition in s 18 does not turn on the form of the words used. It turns on the nature of the impugned conduct.

526    At [90] his Honour cited the remarks of Heydon J in Forrest (at [94] as extracted above), and went on to say (at [93]):

The position was that an experienced property developer and a real estate agent were in dispute as to the legal effect of a contract they had entered into by completing a standard form which was not directed to attempts to obtain options from a multitude of landowners. Whether and if so when any entitlement to commission arose was a question of law, based on the legal effect of the contract on undisputed facts. I see no basis for construing what [the agent’s representative] said and wrote as other than his opinion that the fees were due and payable.

527    His Honour then said the following (at [97]-[100]):

[97]    As was said in JD Heydon, Heydon on Contract (Thomson Reuters 2019) at [14.260], “A statement about a topic which is inherently disputable, open to disagreement or not based on certain knowledge is likely to be an opinion.” [The Agent’s] statements, unequivocally asserting a present right to be paid, made and repeated when it was known that the parties were in dispute, were opinions as to the legal entitlement, which could only be resolved definitively by a court.

[98]    As the joint judgment in Forrest observed at [33], it may not ultimately be profitable to classify a statement by reference to whether it is “fact” or “opinion” or a combination of both. The question is whether there was a contravention of s 18. In the circumstances giving rise to this appeal, where the underlying conduct was undisputed (entry into written contract between the parties, and the obtaining of option agreements), the assertions that the buyers fee was payable could not be understood as anything more than the Agent’s view of the construction of the Buyers Agency Agreement.

[99]    There was no suggestion that [the agent’s representative] did not genuinely believe in a construction of the agreement that entitled his company to be paid on the execution of an option agreement. As the parties’ submissions in this appeal well illustrate, the contract which they had entered into amply supported reasonably held divergent views.

[100]    It follows that the conduct was not misleading or deceptive or likely to mislead or deceive…

528    Domino’s asserted that its statements in the Pleaded Information about the applicability of the Agreements to the pay rates and conditions of franchise operators’ employees were undeniably statements of legal conclusion. More specifically, it said that they were statements about how the law applied to facts known to both parties. It submitted that whether an industrial instrument applies to an employer or employee is an inherently controversial matter of professional judgment, and that these proceedings self-evidently demonstrate how and why that is so. It contended that is the end of the necessary inquiry in the circumstances of the present case.

529    Domino’s then made the following further submissions:

(a)    The form of a statement is not determinative of whether it contains representations of fact or of opinion, but it is relevant that the Fair Work Laws Training Materials Domino’s provided to franchise operators contained disclaimers in clear terms (as earlier extracted).

(b)    It is necessary to consider the character of the particular conduct, bearing in mind what matters of fact the representor and representee knew about the other, as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known. That is no more than an acknowledgement that any characterisation of the statements as either representations of fact or opinion must be undertaken having regard to all the surrounding circumstances.

(c)    It is important to examine the knowledge or sophistication of the target audience. Domino’s relied on the remarks of Bell ACJ in Ireland (at [32]), where his Honour approved the statement in Colin Lockhart, The Law of Misleading or Deceptive Conduct (LexisNexis Australia, 5th ed, 2019) at [4.43], that “[o]rdinarily, the more informed the target audience regarding the subject of the impugned remarks, the more willing the court will be to construe the statements as opinions” or, as his Honour added, as “reasonably held beliefs”. It argued that the more intelligent and commercially sophisticated the target audience is - particularly in relation to the subject matter of the representation - the more likely it is that the representation will be considered to be a matter of opinion. In this context, Domino’s reiterated its contentions about the knowledge and commercial sophistication of Dominoids through Ms Smith, and of MC Pizza through Mr Glynn. As I have said, I broadly accept Domino’s submissions as to the likely knowledge and sophistication of those two franchise operators, but the necessary inquiry must be conducted through the prism of the ordinary or reasonable franchise operator.

(d)    That the nature of the transaction, including its character, complexity and importance for the parties are all relevant. Domino’s argued that the greater the value, importance and complexity of the transaction, the more likely it is that a representation will be considered to be opinion only (citing Butcher at [45], [50] and Ireland at [72]). In this regard, Domino’s argued in relation to cl 2.4.2 of the sub-franchise agreement that the fact that it was mandatory for franchise operators to comply with “the terms and conditions of any enterprise bargaining agreement or other workplace agreement to which [Domino’s] is a party in respect of its corporate store employees” does not show that the impugned statements were representations of fact. It submitted that the fact that the obligation to comply came with consequences for a failure to do so does not assist because the same was true in Norton. It said that the failure to pay the buying fees in that case, which were due under the agency agreement between the developer and the agent, would amount to a breach of a contractual obligation to which damages and interest would apply.

530    Domino’s argued that cl 2.4.2 of the sub-franchise agreements is nothing more than the undertaking of an obligation by the franchise operator, and nothing can be represented by that. For that, it relied on the remarks of Weinberg, Whelan and Santamaria JJA in RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd [2017] VSCA 50 at [64]-[65]:

[64]    Subject to what we say in the next paragraph, where the representation is said to appear in a contract, it will be necessary to examine all the terms of the contract to see if the allegation that there is a representation is made good. Where, as is usually the case, a claim for loss and damages is made by reason of a breach of the statutory norm, the fact that the conduct forms part of a contract will raise particular issues when causation (reliance) is to be proved. This is particularly so when persons who are not parties to the contract claim to have relied upon some representation that arises from the contract. Causation and loss and damage would be difficult issues which would depend on the facts of each case.

[65]    On the other hand, it may be that, properly construed, a provision of a contract is not a representation but nothing more than the undertaking of an obligation. In that eventuality, there can be no misleading conduct. This is because nothing is ‘represented’ other than that an obligation has been undertaken, which is self-evidently true.

531    Domino’s also submitted that it would be an error for the Court to characterise cl 2.4.2 otherwise than in the context of the whole of the conduct alleged against Domino’s having regard to all of the circumstances. It said that the inquiry includes having regard to the state of knowledge of the franchise operator at the time it is called on to comply with the obligations under that clause; that being when the franchise operator pays its employees.

10.3    Consideration

532    The inquiry required by s 18 of the ACL is objective. It is directed to the effect or tendency of the conduct on the class of persons to whom it is directed or who are likely to be affected by it. That inquiry does not depend upon the subjective intention of the respondent, although evidence of intention may, in an appropriate case, assist in characterising the conduct. What matters is the impression conveyed by the conduct in all the circumstances.

533    Conduct for the purposes of s 18 is not confined to express statements. It extends to the totality of what is said and done, and may include the making available of information, the provision of documents and materials, the operation of systems, and the maintenance of practices within a commercial framework. The Court is not confined to identifying particular words or representations in isolation but must consider the impugned conduct in its full commercial and factual context.

534    It follows that where, as in this case, the impugned conduct is said to arise from a combination of documents, communications and systems, the proper approach is to assess the cumulative effect of those matters. The question is whether, viewed as a whole, the conduct conveys a representation or has a tendency to lead a person or class of persons into error. That may occur notwithstanding that individual elements of the conduct, taken in isolation, are accurate or unobjectionable.

535    Those principles are of particular significance in the present case. The question is whether Domino’s conduct, viewed as a whole and in its practical operation, conveyed a representation as to the applicable pay rates and terms and conditions of employment for Delivery Drivers and In-Store Workers employed in Franchise Stores. The assessment is to be undertaken having regard to all of the circumstances, including the nature of the parties’ relationship, the standardised and centrally maintained framework within which franchise operators operated, and the manner in which information was disseminated and applied within that framework.

536    The six alleged Franchise Representations and Franchise Opinion Representations must be considered together and separately, and the thrust of each of them is similar. In the alternative, it is alleged that the essence of the alleged representations of opinion is that Domino’s held an opinion to that effect, and that it had reasonable grounds for those opinions.

537    I should note that the Franchise Representations are each so similar that if Domino’s conduct conveyed one of them, it is likely to have conveyed each of them. But it is not necessary for the applicant to establish that Domino’s conduct conveyed each of the six Franchise Representations; it is enough for the applicant to establish that its conduct conveyed one of them.

538    Importantly, Domino’s admitted (AD [30.2.1]) that since about 2012 it had provided to franchise operators, or made available to them, various documents “which included statements to the effect alleged in [2FASOC] 30(aa)”. Then, in closing written submissions it conceded that by its provision of the Fair Work Training Presentation and the Workplace Laws Training Manual to Dominoids and MC Pizza on and from 2 May 2012, it conveyed to those franchise operators the following Admitted Statements:

(a)    “The terms and conditions of Domino’s Employees are governed by two Enterprise Bargaining Agreements. The 2001 agreement provides the conditions for Drivers, and the 2009 agreement for In-stores and Managers”;

(b)    “From 1 January 2014, all wage rates would be no less than the Modern Award”; and

(c)    “The terms and conditions of the employees will continue to be dictated by the 2001/09 EBAs until a party decides to either terminate or renegotiate one of the agreements”.

(Emphasis added.)

539    Those admissions were drawn almost verbatim from the Fair Work Training Presentation and the Workplace Laws Training Manual, and they closely follow the terms of the Franchise Representation pleaded in 2FASOC [30(aa)].

10.3.1    The overarching problem with Domino’s submissions

540    In broad terms, Domino’s contended that the documents it provided to franchise operators constituting the Pleaded Information were no more than sources of information, and that it was for franchise operators to form their own view as to the applicable legal position in relation to the pay rates and terms and conditions of employment of the Delivery Drivers and In-Store Workers they employed. It also treated the materials it provided as disparate elements which could not properly be aggregated and contended that its conduct did not convey any uniform representations to franchise operators, such that any conclusion as to the representations conveyed would involve impermissible generalisation across the class. Those submissions cannot be accepted.

541    The overarching problem with Domino’s argument is that it did not adequately engage with the character of the impugned conduct as a structured and centrally administered system, within which the pleaded documents, systems and compliance activities were not presented as optional or merely informative but as part of a framework provided by Domino’s, which was intended to guide the pay rates and terms and conditions of employment of franchise operators’ employees across the Domino’s network. Nor did Domino’s arguments accord with the established principle that the conduct must be assessed as a whole, and that where different elements of conduct operated together and were mutually reinforcing it is necessary to consider them together.

542    The impugned conduct was not confined to discrete statements but comprised a combination of documents, systems and practices which operated together in a coherent and mutually reinforcing way. The salient parts of the Pleaded Information articulated the position said to apply to franchise operators in relation to the applicable industrial instrument, and the pay rates and terms and conditions of employment of their employees, and did so in express terms as part of a series of documents governing their participation in the franchise network and in training materials and policy documents. That was reinforced through the centrally configured Payroll Systems, including PAI, DBS and TANDA, which calculated the pay and entitlements for those franchise operators using DBS on the default footing that the Agreements applied, and did so in a manner which was standardised across the network. Then, Domino’s Compliance and Audit Activities in the course of ongoing operations reinforced that position, by assessing franchise operators’ compliance with their obligations to their employees by reference to the pay rates and terms and conditions of employment in the Agreements, and by requiring franchise operators’ adherence to the Agreements.

543    These elements were not independent or unrelated. Rather, they formed part of a pattern of conduct in which each element confirmed and reinforced the others. In that context, it would be artificial, and contrary to the authorities, to isolate individual elements of the conduct and to assess them in isolation, because to do so would be to ignore the reality of how the system operated and how it would be understood by those subject to it. The proper approach is to consider the conduct as a whole, and to ask what message it conveyed when viewed in its full context. Domino’s submitted that the applicant’s case impermissibly disaggregated conduct into separate representations. However, the identification of representations is a means of analysing the effect of the conduct; it does not involve fragmenting the conduct, which is to be assessed as a whole.

544    Further, as previously noted, Domino’s submission that no class-wide conclusion can be drawn is not supported by the evidence, which demonstrates that the conduct was standardised and system-wide and directed to franchise operators as a class. The evidence does not provide any material basis for concluding that the effect of the conduct varied in any relevant respect across that class. That is not to suggest that every franchise operator was provided precisely the same information by Domino’s, but I am satisfied that the conduct was class-wide and conveyed the alleged representations to the ordinary or reasonable franchise operator.

10.3.2    Whether representations of fact or of opinion/belief?

545    Domino’s described the applicant’s statement of the applicable principles for determining whether a statement is one of fact or of opinion as “broadly uncontroversial” subject to its contentions outlined above (including its overarching argument that the principles are not apposite in relation to statements involving a conclusion of law, which it said are “almost inevitably” statements of opinion). I do not accept the thrust of Domino’s submissions. In my view the applicant’s statement of the applicable principles was apt, which I have relied on below.

546    Where conduct alleged to give rise to false or misleading representations is directed to a class of persons, the characterisation of a statement as one of fact on the one hand, or of belief/opinion on the other hand, is to be viewed from the perspective of the ordinary or reasonable member of the target audience to whom the conduct or statement is directed (as opposed to from the perspective of the maker of the representation): Campomar at [102].

547    The authorities show that whether a statement is one of opinion or fact depends on all the relevant circumstances: Middleton at [22]-[23] (McLure JA, with whom Murray AJA agreed at [92]; see also Buss JA at [80]); see also Grainger v Williams [2009] WASCA 60 at [135] (McLure JA). In Campbell at [32], in describing the general principles applicable to misleading or deceptive conduct, French CJ described the question as being “to ask what kind of statement was made”, distinguishing between a statement of fact made on the basis that its truth was known to its maker and a statement of opinion, being a statement of “judgment or belief of something as probable, though not certain or established”.

548    In Middleton (at [22]-[23]) McLure JA explained as follows:

[22]    Whether or not a statement is one of fact or opinion depends upon all the relevant circumstances known to the representee, including the form in which the statement is made and the personal knowledge or likely personal knowledge of the person making the statement. The subject matter of the statement may also be relevant but is not necessarily determinative. Further, a person may make a statement of fact about what he or she merely believes as opinion. For example, a statement as to the value of property or the nature of its tenure may be in such form and made in such circumstances as to be a statement of fact not opinion: Spencer Bower, Turner and Handley, Actionable Misrepresentation 4th ed [31], [32] and the authorities there cited.

[23]    Thus, an unqualified assertion by a person who has, or is reasonably expected to have, personal knowledge of a matter may be a statement of fact not opinion. So too, a statement as to the content or general effect of a document, including a legal document, has been held to be a representation of fact: Spencer Bower, Turner and Handley at [43], [44] and the authorities there cited.

549    Buss JA similarly explained (at [80]):

[80]    The form of a statement does not determine whether it is of fact or opinion. Rather, what is important is the sense in which the statement is reasonably understood. For example, a statement which appears to assert facts without qualification may nevertheless be merely of opinion if made in circumstances in which the recipient must be taken to know that the maker of the statement has inadequate knowledge or information in relation to the facts apparently asserted. Where, however, the facts are not known equally to both parties, a statement by the party with the better knowledge, which is in form an opinion, may convey a representation that the party making the statement has reasonable grounds for the opinion. See Smith v Land and House Property Corporation (1884) 28 Ch D 7, 15 (Bowen LJ). Thus, whether a statement is or conveys a representation of fact or opinion depends upon all of the relevant circumstances, including the facts known to the recipient or representee, the form and subject matter of the statement, and the actual and likely personal knowledge of the maker of the statement or representor.

550    Thus, whether conduct conveys a representation of fact or opinion depends on all the relevant circumstances, including the facts known to the recipient, the form and subject matter of the representation and the actual or likely personal knowledge of the representor. But the perception of the maker’s intention by the person or class of persons exposed to the conduct will generally be the significant matter. That is, ordinarily the question as to whether a representation is one of fact or one of opinion/belief falls to be determined by looking to the person or class of persons to whom the conduct was directed and (in the case of representations to a class) asking whether the ordinary or reasonable member of the target audience would understand the statement to be one of fact or of opinion: Tobacco Institute of Australia v Australian Federation of Consumer Organisations (1992) 38 FCR 1 at 46-7 (Hill J) and see also 26-7 (Foster J), approved in Dover at [110].

551    Even so, as explained by the plurality in Forrest at [33], it may be “ultimately unprofitable” to attempt to classify representations according to:

…some taxonomy, no matter whether that taxonomy adopts as its relevant classes fact and opinion, fact and law, or some mixture of these classes. It is necessary instead to examine more closely and identify more precisely what it is that the impugned statements conveyed to their audience.

The important questions to determine are precisely what the conduct is likely to have conveyed to the target audience, and whether that conduct was misleading or deceptive or likely to mislead or deceive the target audience.

10.3.3    The express statements

552    The Court’s consideration of the impugned conduct is not to be confined to Domino’s express statements; it must extend to the totality of what was said and done. Even so, it is central to my conclusion that Domino’s impugned conduct conveyed the Franchise Representations, and that through the Fair Work Training Presentation and the Workplace Laws Training Manual (and later the Fair Work Laws: Franchisee Orientation Program) Domino’s expressly told franchise operators the Admitted Statements, that:

(a)    “The terms and conditions of Domino’s Employees are governed by two Enterprise Bargaining Agreements (EBA). The 2001 agreement provides the conditions for Drivers, and the 2009 agreement for In-stores and Managers”;

(b)    “The wage rates for [In-Store Workers] are provided by the 2009 EBA which was negotiated with the Union under the Fair Work Act. The rates were agreed and certified by Fair Work Australia”; and

(c)    “On 1 January 2014 wage rates will be no less than the Modern Award. The terms and conditions of the employees will continue to be dictated by the 2001/09 EBAs until a party decides to either terminate or renegotiate one of the agreements”.

(Emphasis added.)

553    Domino’s provided the Fair Work Training Presentation and the Workplace Laws Training Manual to all franchise operators by uploading them to DOTTI on 2 May 2012 and thereby making them available to all franchise operators from that date until the end of the Relevant Period; by emailing them to all existing franchise operators on 2 May 2012; by providing them to all new franchise operators from 2 May 2012 as part of their compulsory induction training; and, in respect of the Fair Work Training Presentation, by uploading it to DOTTI as a training module from an unknown date until the end of the Relevant Period.

554    Subsequently, the Fair Work Laws: Franchisee Orientation Program expressly told franchise operators the same information as the Fair Work Training Presentation. Domino’s provided that document to all new franchise operators as part of their compulsory induction training from 20 May 2014 until the end of the Relevant Period, and by uploading it to DOTTI on 28 October 2014 and thereby making it available to all franchise operators from that date until the end of the Relevant Period.

555    Then, the Industrial Relations Facts Presentation expressly told franchise operators:

The SDA - Domino’s Pizza Agreement has minimum wage rates for team members which must be adhered to.

(Emphasis added.)

That presentation was provided to all new franchise operators as part of their induction training from 8 September 2016 until the end of the Relevant Period. It told franchise operators how they could access the national wage rates for franchise operators’ employees on DOTTI (and Domino’s admitted that the national wage rates that it there set out were derived from the Agreements). It stated the hourly wage rate for Delivery Drivers, and their hourly Temporary Transitional Enterprise Agreement Negotiation Allowance (TTENA), which Domino’s had negotiated with the SDA.

556    It also said that the “Domino’s Industrial Relations Team” investigated, amongst other things, employee concerns regarding underpayment of wages; and warned that:

Non-compliance with IR laws can result in large penalty fines and negative media coverage about

The recent 7Eleven controversy was an example of this.

If you have any doubts about how your current system is working then please contact the Industrial Relations team for assistance.

Alternatively, you may wish to consider getting the Domino’s Bookkeeping Service to handle all your payroll and your IR paperwork.

(Emphasis added.)

Domino’s provided that document to all new franchise operators as part of their compulsory induction training from 8 September 2016 until the end of the Relevant Period.

557    Over the Relevant Period, the Employment Law Compliance Policy Versions 1, 1.1 and 1.2 (which were relevantly similar in terms) expressly told franchise operators that they must “pay all employees at a rate not less than the minimum rates provided for under the applicable Domino’s Enterprise Bargaining Agreement (EBA) (where applicable to the employee)” (emphasis in original). Domino’s provided those policies to franchise operators by uploading them to DOTTI on or around 17 April 2014, 28 May 2014 and 8 October 2015, thereby making the policy available to franchise operators from April 2014 until the end of the Relevant Period. Pursuant to their sub-franchise agreements, compliance with those policies was mandatory for all franchise operators.

558    Finally, over the period from 2013 to 2017 Domino’s regularly emailed Pay Rate Notices to all franchise operators, which notices set out the rates of pay for all Delivery Drivers and In-Store Workers for the ensuing periods; and Domino’s invariably described the specified pay rates as the “applicable” rates or the rates that were “to apply”.

559    Domino’s documents stated, in express terms, that the rates of pay and terms and conditions of employment of Delivery Drivers and In-Store Workers in all Domino’s Stores were “governed by”, “provided for” or “dictated by” the Agreements; that they applied to franchise operators; and that the Agreements (as adjusted by agreement with the SDA) supplied the rates of pay and conditions required to be afforded. The documents did so not as a matter of tentative or contingent expression but as part of the framework within which franchise operators were expected to conduct their operations.

560    That message was then reinforced by the operation of the Payroll Systems, which (for franchise operators that used DBS) were configured on the default footing that the applicable wage rates and terms and conditions of employment were those derived from the Agreements (as adjusted by agreement with the SDA) and which produced outcomes consistent with the Agreements, thereby conveying that the pay rates and conditions derived from the Agreements were those which were to be applied in practice. Then, the Compliance and Audit Activities further reinforced that position by assessing franchise operators’ compliance with their obligations to their employees by reference to the Agreements and requiring adherence to the Agreements, thereby conveying that compliance with the Agreements was the measure of compliance with applicable industrial obligations.

561    Taken together, these matters conveyed, in a consistent and mutually reinforcing way, that the Agreements constituted the relevant and operative legal framework governing employment within Franchise Stores, and that adherence to that framework - including through the use of the systems provided - would result in compliance with applicable industrial laws. That conclusion arises not from any single statement or document, but from the cumulative effect of the conduct as a whole.

562    Domino’s made those express statements in the course of the provision of formal documentation and compliance-related material, including material required to be provided in connection with entry into, and participation in, the franchise system. It made them in circumstances where it assumed a central role in supplying information to its franchise operators as to their employment obligations. In those circumstances, the ordinary or reasonable franchise operator was likely to understand the statements as conveying that the legal position was as stated, and not as merely expressing a view as to what that position might be. Where a party provides information or guidance in circumstances where it is reasonable to expect that the recipient will rely upon that information in ordering their affairs, statements as to legal rights and obligations are apt to be understood as conveying assertions as to the existence and content of those rights and obligations, rather than as the mere expression of a view.

563    Domino’s statements in the salient documents were unambiguous, conclusory and cast in mandatory language. They were nothing like statements of opinion. Why would franchise operators understand them as mere statements of opinion when Domino’s told them in clear terms that the rates of pay and terms and conditions of employment of Delivery Drivers and In-Store Workers in all Domino’s Stores were “governed by”, “provided for” or “dictated by” the Agreements, and did so in circumstances where Domino’s told franchise operators there were serious consequences for franchise operators if they did not comply with the applicable industrial instruments? And why would franchise operators understand them as mere statements of opinion when Domino’s regularly sent them Pay Rate Notices telling them the minimum rates that were payable and configured its Payroll Systems to pay those rates?

564    The question is not what Domino’s intended to convey by its conduct. Conduct may convey a representation which is misleading or deceptive without an intention on the part of the representor to mislead or deceive. The important question is what the target audience was likely to understand to be conveyed by Domino’s conduct, and where a representation is made in terms apt to create a particular mental impression in the person or class of persons exposed to the conduct, and is intended to do so, it may properly be inferred that it has had that effect: Gould v Vaggelas at 237-8.

565    Here, Domino’s unambiguous and conclusory statements cast in terms of franchise operators’ mandatory obligations under the Agreements, and its statements regarding the consequences for failure to comply with their obligations, were apt to leave franchise operators with the impression that the Agreements governed the terms and conditions of employment of all Delivery Drivers and In-Store Workers employed by franchise operators, and that the rates of pay provided for in the Agreements (as adjusted by agreement with the SDA, and as affected by the Agreed Base Rate Increases and/or the Deemed Base Rates) were the ones which it was lawful to pay their employees. It is relevant that some of the most important documents were training documents that Domino’s accepted reflected its opinion at the time. Those documents were intended to convey the impression that the Agreements applied, and it is only a small step to infer that they had the intended effect. Those statements were likely to be understood by the reasonable franchise operator as statements about a state of affairs the truth of which was “known to its maker” (Campbell at [32]); that is, as statements of fact.

566    Using the first two Franchise Representations as an example, the express statements in the salient documents point strongly to a finding that they are likely to have conveyed, to the ordinary or reasonable franchise operator, representations of fact that:

(a)    the terms and conditions of all Domino’s employees were governed by two enterprise bargaining agreements, the first of which provided the conditions for Delivery Drivers, and the second of which provided the conditions for In-Store Workers (2FASOC [30(aa)]); and/or

(b)    one or more of those agreements (as affected by the Agreed Base Rate Increases and the Deemed Base Rates of which I infer franchise operators were aware) was or were binding upon all franchise operators with respect to the rates of pay required to be paid, and the terms and conditions of employment required to be afforded, to all Delivery Drivers and In-Store Workers employed by franchise operators to perform work in Franchise Stores (2FASOC [30(a)]).

The same applies to the other Franchise Representations.

10.3.4    Reading the documents as a whole, including the disclaimers

567    But before proceeding to any such conclusion it is, of course, necessary to understand what was conveyed by reference to the relevant documents understood as a whole and in context, including by having regard to any qualifications or disclaimers in the documents.

568    Domino’s made submissions regarding the disclaimers in relation to the documents provided to Dominoids and MC Pizza. I treat those submissions as relevant, but the issue falls to be decided by reference to the likely effect of the impugned conduct on the ordinary or reasonable franchise operator (rather than by reference only to those two franchise operators).

569    In relation to disclaimers, Domino’s relied on the remarks of the plurality in Butcher (at [39]), where their Honours said:

In applying those principles, it is important that the agent’s conduct be viewed as a whole. It is not right to characterise the problem as one of analysing the effect of its “conduct” divorced from “disclaimers” about that “conduct” and divorced from other circumstances which might qualify its character. Everything relevant the agent did up to the time when the purchasers contracted to buy the Rednal land must be taken into account. It is also important to remember that the relevant question must not be reduced to a crude inquiry: “Did the agent realise the purchasers were relying on the diagram?” To do that would be impermissibly to dilute the strict liability which s 52 imposes.

570    It also relied on the remarks of French CJ in Campbell (at [29]), where his Honour said:

A person accused of engaging in misleading or deceptive conduct may claim that its effects were negated by a contemporaneous disclaimer by that person, or a subsequent disclaimer of reliance by the person allegedly affected by the conduct. The contemporaneous disclaimer by the person engaging in the impugned conduct is likely to go to the characterisation of the conduct. A subsequent declaration of non-reliance by a person said to have been affected by the conduct is more likely to be relevant to the question of causation.

(Domino’s emphasis, citation omitted.)

571    Those statements of principle are uncontentious. In broad terms, the question as to the effectiveness of the qualifications or disclaimers is whether they were likely to have had the effect of erasing or neutralising what is alleged to be misleading or likely to mislead in the impugned conduct: Downey at [83]; Benlist at 51,590. Ultimately, the question is one of overall assessment of the publication or communication in the context it was made: ACCC v TPG (FC) at [25].

572    Domino’s contended that the asserted qualifications and disclaimers neutralised the alleged misleading effect of its statements, and it had the evidentiary onus to show that those qualifications and disclaimers meant that the alleged representations were not conveyed: GlaxoSmithKline at [33(3)].

10.3.4.1    The Pre-2015 and 2015 Code Disclosure Documents

573    Commencing with the Pre-2015 and 2015 Code Disclosure Documents that Domino’s provided to all prospective franchise operators, the Pre-2015 Code Disclosure Document said:

…You should make your own enquiries about the Sub-Franchise and about the business of the Sub-Franchise.

The Master Franchisee strongly recommends that you have the Sub-Franchise Agreement explained to you by a lawyer experienced in franchising and also that you obtain independent accounting and business advice on the sub-franchise proposition from an accountant/business advisor experienced in franchising before signing the Sub-Franchise Agreement.

(Emphasis added.)

574    The 2015 Code Disclosure Document said:

You should make your own enquiries about the Sub-Franchise and about the business of the Sub-Franchise.

You should get independent legal, accounting and business advice before signing the Sub-Franchise Agreement.

575    As Domino’s submitted, those passages told prospective franchise operators that they should make their own enquiries about the Domino’s franchise they were considering entering into, and that they should obtain legal advice from a lawyer experienced in franchising and also business and accounting advice. Those qualifications were reasonably prominent and likely to be seen by franchise operators.

576    Those qualifications, however, said nothing to disclaim or disown the express statements in the Fair Work Laws Training Materials and/or the Employment Law Compliance Policy. They exhorted franchise operators to get appropriate legal and business advice before entering into their sub-franchise agreements, which agreements said nothing about the applicable industrial instruments or the applicable pay rates for franchise operators’ employees. They did not in any way cut away or neutralise any representations that Domino’s conduct otherwise conveyed to the ordinary or reasonable franchise operator.

10.3.4.2    The Fair Work Training Presentation and Workplace Laws Training Manual

577    Domino’s submitted that these training materials were “pitched at a basic and high-level” which suggested that franchise operators were expected to make further inquiries and seek their own further advice, which was supported by the express disclaimer. The disclaimers in each of those documents stated:

The content of this document is intended as a guide only and in no way constitutes legal advice on behalf of [Domino’s]. When making any decisions regarding employees, advice should be sought from Fair Work Australia, the Fair Work Ombudsman, or an independent legal advisor.

578    I accept that those training documents did not capture all the complexities of the regulatory framework or application of the Agreements in relation to the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers, and in that sense they can be described as “high-level”. I also accept that the documents expressly stated that they were only a guide and not legal advice, and that franchise operators should seek their own advice.

579    I do not, however, accept that those disclaimers operated to qualify or materially cut away any representations that Domino’s conduct otherwise conveyed to the ordinary or reasonable franchise operator.

580    First, the disclaimer in the Fair Work Training Presentation was on the last page of a 38-page PowerPoint presentation. It was far from prominent in the presentation and unlikely to be noticed by many members of the franchise operator class. The disclaimer in the Workplace Laws Training Manual was, though, on the cover page and it was likely to be noticed.

581    Second, and importantly, the disclaimers in both documents were not situated nearby or associated with any of the express statements relied on by the applicant, and they related to the entirety of the documents. If they were to have a qualifying or disclaiming effect, it was across the entirety of the information provided in those training materials. The question as to whether the disclaimers cut away or neutralised the representations that I consider were otherwise conveyed by Domino’s conduct involves an assessment of the entirety of the impugned conduct having regard to all the relevant circumstances: ACCC v TPG (FC) at [25] (Wigney, O’Bryan and Jackson JJ) citing Australian Competition and Consumer Commission v Valve Corp (No 3) [2016] FCA 196; 337 ALR 647 (ACCC v Valve) at [214] (Edelman J).

582    In my view, to the extent that the ordinary or reasonable franchise operator noticed the disclaimers, he or she was likely to know that Domino’s had:

(a)    taken considerable time and effort to create those detailed training materials to guide franchise operators;

(b)    uploaded those training materials to DOTTI, and also sent them directly to franchise operators under the cover of an email which reminded them of the importance of the documents;

(c)    uploaded the Fair Work Training Presentation to DOTTI as a mandatory training module; and

(d)    provided that or similar training to all new franchise operators from that date forward.

583    Having regard to those matters, the ordinary or reasonable franchise operator is unlikely to have understood those generic disclaimers - which were not situated nearby nor associated with the express statements about the applicability and governing nature of the Agreements - to mean that Domino’s was disowning or disclaiming the correctness of what it had said about that. He or she is more likely to have understood those generic disclaimers as just boilerplate, or as going to the level of reliance that he or she should place on Domino’s statements in that regard.

584    Third, even accepting Domino’s disclaimer that those documents were just a “guide”, the disclaimers did not disavow or disown the accuracy of the “guide” that Domino’s provided. The unambiguous and conclusory statements in those documents, cast in mandatory language, conveyed that the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers employed in Domino’s Stores were “governed by”, “provided by” or “dictated by” the Agreements, which set “minimum rates” which “must be adhered to”, and that franchise operators must pay their employees rates of pay “not less than the minimum rates” under the Agreements. And Domino’s followed up those publications by regularly providing Pay Rate Notices to franchise operators which told them the “minimum rates” or which rates “applied” or were “applicable”.

585    Fourth, as the applicant submitted, Domino’s statements that it provided the information only as a guide and not as legal advice spoke to the purpose to which franchise operators should put the information, rather than as to its quality or accuracy. Properly understood, the disclaimers were statements that franchise operators should not rely upon the information and should check it for themselves by getting their own advice. The disclaimers were as to the reliance that franchise operators should place upon the information Domino’s provided.

586    The distinction between a disclaimer as to accuracy and a disclaimer as to reliance was considered in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13 at [2934]-[2935]. There, Elliott J said, and I agree:

A disclaimer as to accuracy goes towards whether the conduct complained of can be considered misleading or deceptive. The question for resolution is whether, considering the whole of the conduct including the existence and wording of any disclaimer, the conduct in question is misleading.

By contrast, ordinarily “no reliance” clauses are particularly relevant when considering causation. The question to be answered is whether a "no reliance" clause agreed to by a person receiving information is evidence that that party in fact did not rely on representations made by the other…It suffices to say for present purposes that, generally speaking, no reliance clauses would not alter the conduct (or the proper characterisation of the conduct) engaged in, such as the making of a representation,. but rather they may be relevant to whether any loss suffered was “because of” the relevant conduct.

(Citations omitted.)

587    Domino’s denied that the distinction drawn in Cargill (No 28) was applicable in the present case. It denied that its disclaimers were “no reliance” clauses because they did not constitute a clause in which a franchise operator agreed that it was not relying on the information contained therein. That contention eluded the point. I accept that Domino’s disclaimers did not constitute a “no reliance” clause in a contractual agreement (as in Cargill (No 28)), but in my view the disclaimers nevertheless went to the extent to which franchise operators should rely on the information, not as to its correctness or accuracy.

10.3.4.3    Employment Law Compliance Policy Versions 1, 1.1 and 1.2

588    The same can be said of Domino’s statements in the Employment Law Compliance Policy which said that franchise operators were required to “comply with all applicable Australian employment laws in connection with the operation of their stores” and “must…pay all employees at a rate not less than the minimum rates provided for under the applicable Domino’s Enterprise Bargaining Agreement (EBA) (where applicable to the employee)” (emphasis in original). The policy included the following qualification or disclaimer that:

(a)    it is the “sole responsibility” of the franchise operators “to inform themselves of, and comply with, their legal obligations in connection with the employment of team members”; and

(b)    the policy “is not intended as legal advice” and franchise operators “must obtain their own legal, accounting and business advice in connection with the operation of their stores and it is their sole responsibility to maintain compliance with all applicable laws”.

589    Again, those statements did not disclaim or disown the accuracy of the Compliance Information that Domino’s provided to franchise operators. Instead, through that qualification or disclaimer Domino’s told franchise operators that it was not providing legal advice to them, and that they should satisfy themselves as to their obligations and get their own independent legal, accounting and business advice.

590    First, that qualification or disclaimer was not directed specifically to the Agreements. It referred to the more generic statement that they “must…pay all employees at a rate not less than the minimum rates provided for under the applicable Domino’s Enterprise Bargaining Agreement” (emphasis in original). It said nothing about which industrial agreement applied, or whether the Agreements applied.

591    Second, that qualification or disclaimer again went to the reliance which franchise operators should place on its representations, and it did not disclaim or disown the correctness or accuracy of its statements in the Fair Work Laws Training Materials.

10.3.4.4    Domino’s Pizza Code of Conduct

592    The qualification or disclaimer in cl 2.3.1 of the Domino’s Pizza Code of Conduct stated:

Managers have a special responsibility to assist employees to understand relevant legislation or policies including specific legal requirements.

All employees are entitled to have access to legislation, policies and industrial instruments such as awards that apply to their work.

593    Again, that said nothing to disclaim or disavow the correctness of the Domino’s express statements that the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers employed at Domino’s Stores were “governed by”, “provided by” or “dictated by” the Agreements. Instead, it went to the extent of the reliance by franchise operators on the information Domino’s had provided. It required franchise operators to have a “working knowledge” and to apply the “industrial entitlements” that related to their store. In my view it is likely that the reasonable franchise operator would treat the information in the Fair Work Laws Training Materials as contributing to his or her “working knowledge” of the industrial entitlements of his or her employees, and those materials conveyed the alleged Franchise Representations.

594    For the reasons explained above, I do not consider the qualifications or disclaimers in the relevant documents operate to neutralise any of the alleged representations otherwise conveyed by Domino’s conduct.

10.3.5    The operation of the sub-franchise agreements

595    It is material to my finding that Domino’s impugned conduct conveyed the Franchise Representations that franchise operators were contractually bound by their sub-franchise agreements, and that through that contract Domino’s had reserved to itself a superior role in relation to setting the terms and conditions of employment of employees in all Domino’s Stores. The contractual relationship between Domino’s and its franchise operators was important in a number of ways.

596    First, the standard form sub-franchise agreements told franchise operators, in effect, that Domino’s was in charge in relation to setting the rates of pay and terms and conditions for franchise operators’ employees. Pursuant to cl 2.4.3 of the sub-franchise agreements, all franchise operators were obliged to request and authorise Domino’s:

(a)    to act in relation to any letters of demand and logs of claim made by any relevant union or employee representative on the franchise operator and in any proceedings in the AIRC which deal with the making of a dispute finding in relation to the letter of demand and log of claim; and

(b)    to act as agent for and on behalf of and in the name of the franchise operator in making an agreement with any relevant union and in having the agreement certified by the AIRC.

Thus, franchise operators were not contractually entitled to any role in negotiating any industrial agreement that applied to them and their employees.

597    Second, the sub-franchise agreements bound franchise operators to comply with the terms of any enterprise agreement or workplace agreement which Domino’s had entered into or was bound by:

(a)    The sub-franchise agreement that Dominoids executed on 17 December 2012 contained cl 2.4.2, which provided that it:

Must comply with the terms and conditions of any enterprise bargaining agreement or other workplace agreement to which the Master Franchisee is a party in respect of its corporate store employees.

(Emphasis added.)

(b)    This form of cl 2.4.2 was in use until at least 23 December 2014.

(c)    The sub-franchise agreement that MC Pizza executed on 10 October 2016 contained cl 2.4.2 in a slightly modified form, which provided that:

You must comply with any Australian employment laws and regulations and the terms provided under any relevant industrial instrument.

(Emphasis added.)

598    Third, the requirement for franchise operators to pay their employees the pay rates under the Agreements was reinforced by the Employment Law Compliance Policy Versions 1, 1.1 and 1.2 which expressly told franchise operators that they must “pay all employees at a rate not less than the minimum rates provided for under the applicable Domino’s Enterprise Bargaining Agreement (EBA) (where applicable to the employee)” (emphasis in original). Under the generic sub-franchise agreements, franchise operators were required to comply with that policy, at risk of termination of their franchise.

599    Compliance with those policies was reinforced by cl 16.5.2 of the sub-franchise agreements, which provided:

You will conduct the Sub Franchised Operation in accordance with the Operating Manual as modified by the Master Franchisee from time to time and the mandatory specifications, standards and operating procedures and rules prescribed from time to time by the Master Franchisee. You acknowledge that compliance with the Operating Manual, specifications, standards, operating procedures and rules is an essential and fundamental term of this Agreement.

(Emphasis added.)

600    The obligations of franchise operators to comply with Domino’s “Operating Manual” were not limited to food preparation procedures or similar operational matters. Clause 1.36 of the sub-franchise agreements defined the “Operating Manual” to include “the rules prescribed from time to time by Domino’s or the Master Franchisee, and information relative [sic] to the operation of the Store”. Clause 19.2.14 (cl 19.2.15 in the Dominoids sub-franchise agreement) allowed Domino’s to terminate the sub-franchise agreement if a franchise operator failed to comply with the Operating Manual or any specification, standard or operating procedure.

601    By the ordinary meaning of its words, cl 2.4.2 of the sub-franchise agreements (whichever of the two forms of that clause) was a statement of fact expressed in mandatory terms. It told franchise operators that they were required to comply with the terms and conditions of any applicable enterprise agreement or other workplace agreement to which Domino’s was a party in respect of its Corporate Store employees or (in the later form of cl 2.4.2) with any “relevant” industrial instrument.

602    As the applicant submitted, the nature of the relevant clauses of the sub-franchise agreements, and their emphasis on the requirement for franchise operators to conduct their franchise according to Domino’s directions, had the effect that any information of a regulatory or operational kind communicated by Domino’s to the reasonable franchise operator was likely to be understood as constituting a mandatory obligation with which franchise operators were not just recommended, but required, to comply. And the understanding of the ordinary or reasonable franchise operator as to the mandatory nature of the requirement to pay the pay rates under the Agreements could only have been reinforced by Domino’s regular provision of Pay Rate Notices which specified the “applicable rates” for the ensuing period.

603    That was the context in which Domino’s made express statements to the effect that the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers employed in Domino’s Stores were “governed by”, “provided by” or “dictated by” the Agreements, which provided “minimum rates” that “must be adhered to”, and that franchise operators must pay their employees rates of pay “not less than the minimum rates” under the Agreements. And they were reinforced by the Pay Rate Notices that Domino’s regularly sent to franchise operators which told them the rates which were the “minimum rates” or which rates “applied” or were “applicable”. Domino’s statements, understood in the context of the sub-franchise agreements, point strongly to a finding that they were likely to have conveyed each of the Franchise Representations to the ordinary or reasonable franchise operator. Again, having regard to that unambiguous and conclusory language, reinforced by the fact that Domino’s knew (and told the franchise operators) there were serious consequences for franchise operators if they did not comply, why would the ordinary or reasonable franchise operator understand them as mere statements of Domino’s opinion or belief?

604    The mandatory obligation under cl 2.4.2 (and in the various versions of the Employment Law Compliance Policy) for franchise operators to comply with the terms and conditions of any enterprise agreement or other workplace agreement to which Domino’s was a party in respect of its Corporate Store employees or any “relevant industrial instrument”, provides strong contextual support for the conclusion that the reasonable franchise operator would understand Domino’s statements as conveying each of the pleaded Franchise Representations.

605    Domino’s argument that cl 2.4.2 was not the type of clause which attracted the operation of s 18 of the ACL missed the point. That clause had the same effect as the Employment Law Compliance Policy, which was part of the Compliance Information. Together with that policy, it reinforced the conclusory and mandatory language of the Fair Work Laws Training Materials, and expressly told franchise operators that compliance with the Agreements was mandatory. I consider cl 2.4.2 must be treated as part of the context in which Domino’s conduct conveyed the alleged Franchise Representations.

10.3.6    The training nature of the documents

606    Another important contextual matter is that Domino’s provided the Fair Work Laws Training Materials (the Fair Work Training Presentation, Workplace Laws Training Manual and Fair Work Laws: Franchisee Orientation Program) to franchise operators as part of their training. The relevant point of that was to educate or train them in relation to their obligations to their employees under the Agreements. Again, that was the context in which Domino’s told franchise operators, in plain terms, that the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers employed in Domino’s Stores were “governed by”, “provided by” or “dictated by” the Agreements, which provided “minimum rates” which “must be adhered to”, and that franchise operators must pay their employees rates of pay “not less than the minimum rates” under the Agreements.

607    It is material too that Domino’s held itself out to franchise operators as having the industrial relations expertise to advise on their industrial relations concerns. For example:

(a)    the June 2009 Australian Franchisee Email told franchise operators that if they were approached by a workplace inspector from the FWO they should ask the Inspector to speak directly to Mr Gil Muir of Employer Services, Domino’s industrial relations consultant;

(b)    the May 2012 Fair Work Training Presentation invited franchise operators to contact Domino’s Industrial Relations Advisor, Mr Tim Van Schyndel, if they needed more information about some of the matters addressed in that training presentation;

(c)    the May and October 2014 Fair Work Laws: Franchisee Orientation Program invited franchise operators to contact Mr Van Schyndel if they needed more information about some of the matters addressed in that training presentation; and

(d)    the September 2016 Industrial Relations Facts Presentation told franchise operators that the “Domino’s Industrial Relations Team” investigated employee concerns regarding underpayment of wages; and said “[i]f you have any doubts about how your current system is working then please contact the Industrial Relations team for assistance”.

608    It is likely that, during the Relevant Period, the ordinary or reasonable franchise operator would have understood or known that Domino’s was a large and sophisticated multinational franchisor with its own industrial relations team; that it was a party to the Agreements to which the Fair Work Laws Training Materials referred; that (having regard to cl 2.4.3 of the sub-franchise agreements) it negotiated the relevant Agreements; and it was likely to know what was lawful to pay its own employees. The ordinary or reasonable franchise operator is also likely to have understood that Domino’s would not provide the Fair Work Laws Training Materials, which concerned important obligations, to its franchise operators unless it thought those materials were factually correct.

609    Domino’s statements in the Fair Work Laws Training Materials were intended to educate franchise operators to understand that the Agreements regulated the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers in Domino’s Stores, and they were apt to do so. In circumstances where Domino’s statements in the Fair Work Laws Training Materials were intended to educate franchise operators as to their obligation to comply with the Agreements, it is a small step to infer that Domino’s conduct actually conveyed representations to that effect to franchise operators: Gould v Vaggelas at 237-8. This too points strongly towards a finding that the reasonable franchise operator is likely to have understood Domino’s conduct as conveying the pleaded Franchise Representations.

10.3.7    The relative size, sophistication and knowledge of Domino’s and its franchise operators

610    The applicant submitted that Domino’s was a large and commercially sophisticated franchisor, and that the ordinary or reasonable franchise operator was smaller and less commercially sophisticated. Domino’s did not contend otherwise. The evidence shows that Domino’s was a large and sophisticated publicly listed multinational franchisor. Its revenue from royalties, franchise service and supplier fees was $326 million in the financial year ending 1 July 2018. It had its own industrial relations team, and it held itself out to Australian franchise operators as having the industrial relations expertise to advise on their industrial relations concerns. It occupied a superior position to franchise operators in relation to the negotiation of enterprise agreements and other industrial instruments. And the evidence indicates that the Agreements and the adjustments to the agreements were negotiated by Domino’s with the SDA, not by individual franchise operators.

611    The franchise operators were, in contrast, smaller and less sophisticated. The applicant submitted, based on calculations from Store Transaction Records which Domino’s did not contradict, that during the Relevant Period, approximately 56% of franchise operators operated a single store; about 78% operated one or two stores; about 7% of franchise operators operated 3 stores; and about 4% of franchise operators operated 4 stores; and about 19 franchise operators operated more than 10 stores. In FY16, the average annual profit of a Franchise Store was approximately $137,000. In FY17, after paying all wages, average franchisee EBITDA was approximately $241,000 and the average EBITDA per store was approximately $134,000.

612    It is appropriate to infer that Domino’s had, or had access to, a substantially greater body of knowledge, experience or expertise than franchise operators in relation to the applicability of the Agreements to the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers in Domino’s Stores. It is also appropriate to infer that many franchise operators are likely to have understood that Domino’s knew substantially more about the applicability of the Agreements than they did. They would think or know that Domino’s senior officers and industrial relations advisors were involved in the negotiation of the Agreements and that Domino’s was a respondent to the Agreements whereas a large number of franchise operators were not. Domino’s told franchise operators that it had an industrial relations team, and it invited them to contact its team for advice about employment-related issues.

613    That stands in contrast to the likely knowledge of many franchise operators (and the ordinary or reasonable franchise operator). Many franchise operators were running small-to-medium sized businesses, were unlikely to have in-house industrial relations advice and were unlikely to spend money on obtaining legal or industrial relations advice regarding the applicability of the Agreements. That was particularly so when:

(a)    Domino’s told them in unambiguous and conclusory terms that the Agreements governed the pay rates and conditions of employment of Delivery Drivers and In-Store Workers in Domino’s Stores; and

(b)    franchise operators would expect Domino’s would know what industrial instruments applied to the Delivery Drivers and In-Store Workers in its employ, when it was a party to those instruments and it was a large and sophisticated company with an in-house industrial relations team.

10.3.8    The Payroll Services and Compliance and Audit Activities

614    Another relevant part of the surrounding circumstances is that Domino’s express statements in the Pleaded Information were made in the context of its other (essentially) admitted Franchise Conduct. I later deal with this question and for the present it suffices to note that I consider that:

(a)    Domino’s provision of Payroll Services (as defined), including DBS, PAI and TANDA to franchise operators through the Relevant Period, and its actions in configuring DBS, PAI and TANDA with default settings that reflected the pay rates and terms and conditions of employment in the Agreements, such that in DBS Stores, Delivery Drivers and In-Store Workers were automatically paid the pay rates and terms and conditions of employment in the Agreements; and

(b)    Domino’s engaging in the Compliance and Audit Activities (as defined) from 2012 throughout the Relevant Period, in which it audited Franchise Stores in relation to wages and allowances paid to Delivery Drivers and In-Store Workers, which audits were predicated on the basis that the pay rates and terms and conditions of employment required to be provided to Delivery Drivers and In-Store Workers employed in Franchise Stores were derived from the Agreements (as adjusted),

can only have operated to confirm the Franchise Representations to the ordinary or reasonable franchise operator. That conduct conveyed an implied representation that the minimum rates of pay and terms and conditions of employment of Delivery Drivers and In-Store Workers that could lawfully be paid and afforded were those contained in the Agreements; and/or the rates of pay and terms and conditions of employment utilised in the Payroll Services which were derived from the Agreements (as relevantly adjusted). That is another part of the relevant context.

10.3.9    The characteristics, knowledge or sophistication of the target audience

615    The likely characteristics, knowledge or sophistication of the target audience of the impugned conduct is another part of the context in which Domino’s conduct must be considered. The evidence shows that the number of Franchise Stores varied across the Relevant Period from a low point of approximately 421 Franchise Stores to a high point of 623 Franchise Stores, and I infer that the number of franchise operators similarly varied over time (but taking into account that some franchise operators operated more than one store).

616    Domino’s did not make submissions directed to the likely characteristics, knowledge or sophistication of the ordinary or reasonable franchise operator. Instead, for the reasons previously explained, it elected to limit its submissions to the knowledge and sophistication of Dominoids and MC Pizza. I treat those submissions as relevant to this issue, but it is not appropriate to decide whether any of the alleged representations were likely to have been conveyed just by reference to Dominoids and MC Pizza. That must be considered through the prism of the ordinary or reasonable franchise operator. As previously noted, I broadly accept Domino’s submissions regarding the likely level of knowledge and sophistication of Dominoids and MC Pizza. Neither was likely to be unsophisticated.

617    The applicant submitted that small, single-store franchise operators were potentially unsophisticated. For the reasons I now explain, I do not accept that it is appropriate to impute commercial naïveté or a lack of sophistication to the ordinary or reasonable franchise operator.

618    The class of franchise operators to which Domino’s conduct was directed is likely to have included people with a range of levels of intelligence, commercial nous or business acumen. But in my view, unlike a class comprising the public at large the class was unlikely to include persons who were commercially ingenuous, naïve or unsophisticated. Taking a person who operated a single Franchise Store as an exemplar of the bottom end of the likely range in acumen or sophistication, that person had to have sufficient initiative, commercial nous and business acumen to purchase a Domino’s franchise for what was often a substantial sum (e.g., the North Caboolture Store for $425,000) and to run that business. It is unlikely that he or she would be unintelligent, or completely lacking in commercial nous or sophistication. At the other end of the range of likely intelligence or commercial sophistication, I consider it likely that those franchise operators who owned and operated multiple Franchise Stores would have relatively high levels of intelligence, commercial nous and business acumen.

619    As the applicant submitted, I accept that there are likely to be differences between the members of the class of franchise operators in terms of the number of stores operated, earnings, intelligence, experience in business or lack of experience, age, educational background, commercial sophistication and the like, but I do not consider any of those differences are of a nature that they are capable of converting the representations made by Domino’s into mere expressions of opinion to any members of the class.

620    All franchise operators had signed a sub-franchise agreement which obliged them to comply with Domino’s directions and policies, and all were bound to comply with the most current version of the Employment Law Compliance Policy. All received the documents in the same form without any individualised amendments, and all of them were likely to have understood Domino’s statements to them in relation to the application of the Agreements and the applicable wage rates as conveying matters of fact not mere opinions about which reasonable minds may differ.

621    I consider it appropriate to impute a reasonable level of intelligence and business acumen to the ordinary or reasonable franchise operator. Even so, having regard to Domino’s conduct overall, for the reasons explained above, I consider it to be substantially more likely than not that the ordinary or reasonable franchise operator would understand Domino’s impugned conduct as conveying each of the pleaded Franchise Representations.

10.3.10    Whether the application of the Agreements was an “inherently contestable matter”

622    Domino’s sought to rely on the knowledge or sophistication of Dominoids and MC Pizza as showing that they were likely to have understood Domino’s statements in the Compliance Information as merely expressing its opinion/belief on the “inherently contestable” matter of whether the Agreements applied to the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers, rather than stating those matters as a fact. It argued that whether an industrial instrument applies to an employer or employee is “an inherently controversial matter of professional judgment”, and that these proceedings self-evidently demonstrate how and why that is so.

623    That submission has numerous shortcomings, and I do not accept it.

624    First, the question as to whether the alleged representations were conveyed, does not fall to be decided by reference to what the impugned conduct was likely to convey to Dominoids and MC Pizza. The authorities are clear that it must be decided by reference to what was likely to have been conveyed to the ordinary or reasonable franchise operator.

625    Second, I accept that “ordinarily, the more informed the target audience regarding the subject of the impugned remarks, the more willing the court will be to construe the statements as opinions”: Ireland at [32]. And I would not describe the ordinary or reasonable franchise operator as commercially unsophisticated, naïve or lacking business acumen. But I do not accept Domino’s contention that the factual matters relevant to the Franchise Representations were equally known to Domino’s and its franchise operators. For the reasons previously explained, in terms of their respective knowledge, experience or expertise in relation to the applicability of the Agreements, in my view there is likely to be a significant disparity between Domino’s and the ordinary or reasonable franchise operator.

626    Third, Domino’s contention that the application of an industrial agreement to identified categories of employees is “an inherently controversial matter of professional judgment” is just an assertion. Whether an industrial agreement applies to identified classes of employees may or may not be genuinely contestable depending on the particular circumstances. A determination that that was so requires evidence. It was Domino’s contention that the application of the Agreements to the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers in Franchise Stores was inherently contestable and it had the evidentiary onus to establish that. It did not adduce any evidence to show that. There is little in the evidence to indicate that franchise operators in general, or a substantial cohort of them, thought that the application of the Agreements to the pay rates and terms and conditions of employment of Delivery Drivers and In-Store Workers during the Relevant Period was somehow genuinely contestable. There is no evidence as to what franchise operators thought, and the evidence in relation to Domino’s shows that throughout the Relevant Period it consistently maintained, both internally and externally, that the Agreements were the governing industrial instruments.

627    It is true that in 2009 several workplace inspectors with the WO undertook investigations of alleged underpayments and expressed preliminary views that the 2005 Agreement did not apply to Franchise Stores that were not named respondents to that Agreement. But the evidence shows that, on each occasion, through discussions and correspondence, Domino’s persuaded the workplace inspector away from that preliminary view. On each occasion the workplace inspectors abandoned that view relatively speedily and without commencing a prosecution. The fact that they expressed that view in relation to underpayment claims against several franchise operators does not show that the application of the Agreements to franchise operators’ employees was “an inherently controversial matter of professional judgment”. Amongst other things, the question is what Domino’s impugned conduct is likely to have conveyed to franchise operators, and most of them would have had no idea about the interactions between the WO and the few franchise operators about whom complaints were made.

628    Further, to the extent that anyone may have thought that the application of the 2005 Agreement to franchise operators’ employees was contestable, so far as Domino’s and franchise operators were concerned any such controversy was put to bed by 21 June 2009. On that date Domino’s sent the June 2009 Australian Franchisee Email to all franchise operators informing them that the workplace inspectors’ initial views were “incorrect” and confirming to franchise operators that:

After discussion with the Workplace Inspectors, we have now had written confirmation from the Workplace Ombudsman that the [2005 Agreement] DOES cover franchisees where these franchisees haven’t registered their own agreement i.e, if you are paying the same rates of pay for drivers and in stores that DPE’s corporate stores are paying…this is correct and does NOT need to be changed.

After that email, the ordinary or reasonable franchise operator was not likely to understand that the applicability of the Agreements to his or her employees was somehow “inherently contestable”.

629    Further, why would those franchise operators who received the Fair Work Laws Training Materials and the Pay Rate Notices think that the application of the Agreements to their employees was inherently contestable, when Domino’s expressly told them in unambiguous and conclusory terms that it was not? Domino’s did not establish an evidentiary foundation for its argument, and such evidence as there is points away from accepting Domino’s argument.

630    In my view, by reason of Domino’s unambiguous and conclusory statements regarding the applicability of the Agreements, the contractual relationship between Domino’s and franchise operators, the training nature of the documents, the relative size, sophistication and commercial experience of Domino’s (including its in-house industrial relations team) and the fact that Domino’s statements were made in the context of Domino’s provision of the Payroll Services, and its engagement in the Compliance and Audit Activities, it is quite unlikely that franchise operators understood that the applicability of the Agreements was somehow contestable or controversial. Here, to use the words of McLure JA in Middleton (at [23]), there were unqualified assertions by a representor (Domino’s) who had, or was reasonably expected by the representees (the franchise operators) to have expert knowledge of the applicable pay rates and conditions for Delivery Drivers and In-Store Workers in all Domino’s Stores, and expert knowledge of the application of the Agreements to which Domino’s was a party. In those circumstances, its statements regarding the applicability of the Agreements were much more likely to have been understood as statements of fact rather than of opinion/belief.

10.3.11    The authorities Domino’s relied on

631    Domino’s overstated the position when it contended that representations about the law are “almost inevitably” statements of opinion as they involve “inherently contestable” propositions. It is established that an incorrect statement of or about the law can constitute misleading or deceptive conduct: ACCC v Valve.

632    In ACCC v Valve (at [220]-[221]), when setting out the relevant principles in relation to misleading or deceptive conduct, Edelman J explained as follows:

… an incorrect statement of the law can constitute misleading and deceptive conduct. In Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486, the High Court considered the effect of representations by letters to the Australian Stock Exchange Ltd and media releases, including that a company “has entered into a binding contract”. In the joint judgment of French CJ, Gummow, Hayne and Kiefel JJ, their Honours considered, as one possibility, that the representations “conveyed some message about ‘legal enforceability’” (603[32]). Their Honours said that although it was to be doubted whether the statements were statements of “fact”, (at [33])

it is ultimately unprofitable to attempt to classify the statement according to some taxonomy, no matter whether that taxonomy adopts as its relevant classes fact and opinion, fact and law, or some mixture of these classes. It is necessary instead to examine more closely and identify more precisely what it is that the impugned statements conveyed to their audience.

The High Court concluded that the representations, in the context they had been made and to the audience that they were addressed, did not convey “a lawyer’s question” about “what could or would happen in a court if the parties to the agreement fell out at some future time” such as relief that the court might grant. In the circumstances including the intended audience they did not convey a meaning that “the agreements the parties had made were not open to legal challenge in an Australian court”. Rather, they conveyed “a statement of what the parties to the agreements understood that they had done and intended would happen in the future” (604 [37], 606 [43]).

(Emphasis added.)

633    The facts of the case were that the Australian Competition and Consumer Commission (ACCC) alleged that Valve made misleading representations in contravention of s 18 of the ACL. The alleged misleading representations were centrally derived from the contractual terms including the Refund Policy between Valve and consumers who subscribed to use its online games which provided, in absolute terms, that no refunds were available. Justice Edelman held (at [241]) that the message conveyed by the contractual terms to the reasonable Australian consumer was that subscriber fees were “not refundable in whole or in part” under any conditions. His Honour held (at [260]) that having regard to consumer entitlements to refunds under the ACL, the representation that they had no right to a refund constituted misleading or deceptive conduct.

634    The decision in ACCC v Valve is directly contrary to Domino’s submissions that statements comprising conclusions of law are mere representations of opinion and not actionable as misleading or deceptive conduct.

635    Domino’s relied upon the remarks of Heydon J in Forrest (at [94]), to the effect that the announcement that Fortescue had a “binding contract” with CREC was “identifiable as an opinion”, and that “[t]he binding quality of an alleged contract is an inherently controversial matter of professional judgment”. That was not, however, the basis upon which the plurality decided the appeal. The plurality explained that it was “ultimately unprofitable” to attempt to classify the impugned statement as one of fact or opinion, or fact or law, and instead the Court’s task was to closely examine the conduct in light of all surrounding circumstances to identify what the impugned conduct or statements conveyed to the target audience. That is the exercise I have undertaken above by reference to the express words of Domino’s statements and the various surrounding circumstances or contextual matters.

636    In relation to Domino’s reliance on the remarks of French J in Inn Leisure (at 165), his Honour there held that “[w]here there is no more than a statement of the result obtained by applying the provisions of the statute to the circumstances of the particular case, there is no representation of fact”. That statement must, though, be understood in context. The facts of that case were that a boatbuilder sold a luxury launch to a purchaser for a price including $91,484 in sales tax. The purchaser represented to the boatbuilder that based on unspecified advice from an accountant about the applicability of sales tax, having regard to the proposed business uses of the boat, sales tax was not payable. The boatbuilder did not pay sales tax to the government and refunded that proportion of the sale price to the purchaser. Subsequently, the boatbuilder accepted that it was obliged to pay the sales tax on that sale plus a penalty, and it sought to recover the sales tax from the purchaser on grounds including that the purchaser’s representations that sales tax was not applicable constituted misleading or deceptive conduct.

637    The decision does not support Domino’s argument. First, contrary to the central thrust of Domino’s submissions, French J explained (at 167):

Expert advice as to the law may convey the representation that it is based upon an underlying body of knowledge, experience or expertise possessed by the person proffering it or to which that person has access. The situations in which advice, expert or otherwise, as to the law may be misleading or deceptive for the purposes of s 52 [of the TPA] will depend upon the context and circumstances in which it is proffered and the representations implied or expressed that accompany it.

(Emphasis added.)

His Honour did not find that statements as to the law are inevitably statements of opinion, and therefore not actionable as misleading or deceptive conduct. Instead, his Honour’s view broadly aligned with the view expressed many years later in ACCC v Valve, as upheld by the Full Court.

638    Second, the context and circumstances in which the representations in Inn Leisure were made are quite different from the circumstances in the present case, and it is readily distinguishable. Justice French noted (at 167) that the purchaser’s “assertion that the transaction did not attract sales tax was presented as an opinion based upon unspecified advice”. His Honour held that that assertion was “no more than an opinion on advice and that advice had been received” which could therefore not constitute misleading or deceptive conduct. That stands in contrast with Domino’s impugned conduct in which it made unambiguous, and conclusory statements, expressed in mandatory terms, regarding the application of the Agreements to franchise operators’ employees. Those statements made no reference to Domino’s needing or having received any advice (legal or otherwise) nor did Domino’s statements make any suggestion that the application of the Agreements was somehow contestable or that reasonable minds might differ about the application of the Agreements.

639    Third, another difference between Inn Leisure and the present case is that French J recognised (at 167) that the purchaser representee in that case did not have any special knowledge, experience or expertise in relation to the applicability of sales tax to the purchase. Here, as explained above, I consider it likely that Domino’s had, or had access to, a substantially greater body of knowledge, experience or expertise than the hypothetical reasonable franchise operator, in relation to the applicability of the Agreements to the pay rates and conditions of employment of Delivery Drivers and In-Store Workers in Domino’s Stores.

640    Similarly, Domino’s submissions regarding the decision in Norton are overstated. That case does not stand for the proposition that representations concerning “statements of legal conclusion” are necessarily statements of opinion. As Leeming JA noted (at [92]-[93]) the parties to the transaction were “an experienced property developer and a real estate agent”, and both were parties to an extant dispute about the entitlement accruing under the agency agreement at the time that the agent’s representative made the impugned statements asserting that the buying fee was due and payable. In the circumstances of that case, the agent’s representative’s statements could only be properly characterised as his opinion that the agent was entitled to a payment, in circumstances where the agent and the developer were in dispute about that very matter. His Honour made that abundantly clear (at [97]), when he said:

[The agent’s representative’s] statements, unequivocally asserting a present right to be paid, made and repeated when it was known that the parties were in dispute, were opinions as to the legal entitlement, which could only be resolved definitively by a court.

641    His Honour’s approach involved the application of orthodox principles to determine whether the representation was one of opinion or fact, including consideration of the language used and the context in which the representations were made: see Norton at [89] and [96].

642    Further, Norton is plainly distinguishable from the present case. In that case, one party to a contract asserted an entitlement under the contract vis-à-vis the other. As Leeming JA observed (at [93]) “[w]hether and if so when any entitlement to commission arose was a question of law, based on the legal effect of the contract on undisputed facts”. There is no analogy with the circumstances of the present case. Here, there was no extant dispute between Domino’s and its franchise operators about the application of the Agreements, and no evidence that they thought the application of the Agreements was contestable or controversial. Considered in that context and in light of the relationship between the parties, Domino’s unambiguous and conclusory statements about the applicable Agreements and pay rates were neither framed as “mere opinions” nor presented to the franchise operators as matters which were “inherently disputable”.

643    Similar observations can be made about the differences between the facts in Forrest and those in the present case. In Forrest, the question was whether the ASX announcement by Fortescue Mining to the effect that it had “a binding contract” with CREC to build, finance and transfer a railway, port and mine project conveyed a representation that the contract was legally enforceable against the other parties. The majority, French CJ, Gummow, Hayne and Kiefel JJ, did not accept that. Their Honours held that those statements would be understood by the target audience of investors and other members of the business or commercial community as a statement about “what the parties to the agreements understood that they had done and intended would happen in the future”: Forrest at [37] (emphasis in original). Further, and importantly having regard to Domino’s reliance on the reasoning of Heydon J, the plurality did not take the same approach. They expressly declined to undertake the task by classifying the impugned statement as either one of fact or one of opinion: Forrest at [38].

644    The alleged representation in Forrest was also quite different to the alleged representations in the present case. The present case does not involve the potentially nuanced question as to whether a contract is legally enforceable by one party against another. The representations in the present case were made by a large and sophisticated franchisor, with an in-house industrial relations team, about the applicability of the Agreements to the terms and conditions of employment of Delivery Drivers and In-Store Workers in the stores run by its franchise operators. Domino’s did not make its statements to an “external” audience such as the investment or business community. It made the statements to its franchise operators, largely in training documents aimed at educating franchise operators to understand their obligations under the Agreements. And the evidence does not show that either Domino’s or the franchise operators thought that Domino’s statements about the applicability of the Agreements were somehow contestable.

645    Nor were the representations about “what the parties to the Agreements understood that they had done and intended would happen in the future”, as in Forrest (at [37]). There was no such question in the present case. Instead, the position was that Domino’s was substantially larger and more sophisticated than the franchise operators, it was a party to the Agreements, whereas many franchise operators were not. It had an in-house industrial relations team whereas the ordinary or reasonable franchise operator would not, and it told franchise operators in unambiguous and conclusory terms that the Agreements applied. In circumstances where Domino’s could reasonably be expected to know what industrial instruments and pay rates applied to its own employees, it was not expressing an opinion to franchise operators about an uncertain state of affairs. Instead, it was making those statements to franchise operators to assist them to comply with their obligations to their employees, as required by their sub-franchise agreements and various versions of the Employment Law Compliance Policy.

10.4    Common Question 3

646    I am satisfied that by Domino’s providing the Pleaded Information to franchise operators and prospective franchise operators during the Relevant Period, in the context in which it did so, Domino’s made each of the Franchise Representations to franchise operators.

647    Common Question 3 asked as follows:

In all the circumstances, by providing any (or any combination) of the Pleaded Information to Franchise Operators and/or to Prospective Franchise Operators, did Domino’s make the Franchise Representations pleaded at:

(a)    2FASOC [30(aa)]

(b)    2FASOC [30(a)]

(c)    2FASOC [30(b)]

(d)    2FASOC [30(c)]

(e)    2FASOC [30(d)]

(f)    2FASOC [30(e)]

and, if so, what particularised conduct constituted those representations?

648    The answer to each of Common Questions 3(a)-(f) is “yes”. The particularised conduct which constituted those representations is as explained above.

11.    THE FRANCHISE OPINION REPRESENTATIONS

649    I have found that during the Relevant Period Domino’s engaged in the conduct alleged to have conveyed the Franchise Representations to franchise operators.

650    The applicant alleged, in the alternative, that Domino’s impugned conduct conveyed to franchise operators that Domino’s held one or more of six alleged Franchise Opinion Representations, and that it held those opinions on reasonable grounds. I now turn to deal with those questions.

12.    WHETHER DOMINO’S CONDUCT CONVEYED THE FRANCHISE OPINION REPRESENTATIONS

12.1    The Franchise Opinion Representations

651    The alleged Franchise Opinion Representations are as follows (2FASOC [30A]):

Further and alternatively, by providing the Franchise Information, the Franchise Agreement Documents, the Franchise Disclosure Documents, and/or Compliance Information to Franchise Operators and to Prospective Franchise Operators, Domino’s represented that:

(a)    Domino’s held the following opinions:

(i)    the terms and conditions of all Domino’s employees were governed by two enterprise bargaining agreements, the first of which provided the conditions for Delivery Drivers, and the second of which provided the conditions for In-Store Workers;

(ii)    one or more of the Agreements (as affected by the Agreed Base Rate Increases and/or the Deemed Base Rates) was binding upon all Franchise Operators with respect to the rates of pay required to be paid, and the terms and conditions of employment required to be afforded, to all Delivery Drivers and In-Store Workers employed by Franchise Operators to perform work in Franchise Stores;

(iii)    one or more of the Agreements (as affected by the Agreed Base Rate Increases and/or the Deemed Base Rates) applied to each of the Franchise Operators with respect to the rates of pay required to be paid, and the terms and conditions of employment required to be afforded, to all Delivery Drivers and In-Store Workers employed by Franchise Operators to perform work in Franchise Stores;

(iv)    the Agreements (as affected by the Agreed Base Rate Increases and/or Deemed Base Rates) contained the rates of pay required to be paid, and the terms and conditions of employment required to be afforded, to all Delivery Drivers and In-Store Workers employed to perform work by Franchise Operators in Franchise Stores;

(v)    the rates required to be paid, and the terms and conditions of employment required to be afforded to, all Delivery Drivers and In-Store Workers employed to perform work in Franchise Stores were the same as those required to be paid and afforded to Delivery Drivers and In-Store Workers employed to perform work in Corporate Stores;

(vi)    it was lawful to pay Delivery Drivers and In-Store Workers employed to perform work in Franchise Stores, the rates of pay, and to afford them the terms and conditions of employment, set out in the Agreements (as affected by the Agreed Base Rate Increases and/or the Deemed Base Rates)

(the Franchise Opinion);

(b)    Domino’s held the Franchise Opinion based on reasonable grounds,

(together and severally the Franchise Opinion Representations).

652    There is little difference between the six alleged Franchise Opinion Representations in subparagraphs (a)(i)-(vi), which except for being representations of opinion mirror the six alleged representations of fact.

12.2    Domino’s submissions

653    I earlier set out Domino’s submissions as to why its impugned conduct could only have conveyed representations of opinion or belief, doing so in the context of the Franchise Representations. I need not set out those submissions again.

12.3    Whether Domino’s conduct conveyed that it held the Franchise Opinions

654    I concluded that Domino’s impugned conduct conveyed the Franchise Representations, which were representations of fact. It follows that I do not consider that Domino’s conduct conveyed one or more of the Franchise Opinion Representations. But having regard to the possibility that on appeal I am found to have been wrong in so concluding, and that the question as to whether Domino’s conduct conveyed the Franchise Opinion Representations was fully argued, I now turn to consider the applicant’s alternative case.

655    Apart from the statement alleged in 2FASOC [30A(a)(i)], Domino’s denied that by providing the Franchise Information, the Franchise Agreement Documents, the Franchise Disclosure Documents, and/or Compliance Information to franchise operators and prospective franchise operators it represented that it held one or more of the Franchise Opinions pleaded in 2FASOC [30A(a)(ii)-(vi)] (AD [30A.2.2]-[30A.2.3]). But, as previously outlined, it submitted that if its provision of the Pleaded Information conveyed anything, it could only have conveyed representations of opinion.

656    At times, Domino’s seemed to contend (contrary to its Amended Defence) that it held one or more of the Franchise Opinions. For example, in relation to the remarks by Rory in the TANDA - Bookkeeper Webinar (to the effect that it was possible to configure TANDA to reflect the Award if a franchise operator wanted that), it submitted that that was a “significant statement” because it:

…makes plain that [Domino]’s statements about the applicability of the Agreements is - as consistently maintained by [Domino’s] - a guide only. It is [Domino]’s opinion/belief that the Agreements apply.

(Domino’s emphasis.)

657    Domino’s defence also reflected some ambiguity in this regard. For example:

(a)    2FASOC [30A(a)(i)] pleaded that Domino’s held the opinion that:

the terms and conditions of all Domino’s employees were governed by two enterprise bargaining agreements, the first of which provided the conditions for Delivery Drivers, and the second of which provided the conditions for In-Store Workers.

(b)    In response Domino’s pleaded (AD [30A.2.2]) that:

the statements referred to in paragraph 30A(a)(i) were statements of opinion and/or statements of a legal conclusion regarding the legal entitlements as to the rates of pay and terms and conditions of all of the Delivery Drivers and Instore Workers;

(c)    In light of Domino’s admitted express statements, I understood that as an acceptance by Domino’s that it held the alleged opinion, which was framed in the terms of the First Franchise Opinion.

(d)    Although denying that it represented to franchise operators that it held the opinions pleaded in 2FASOC [30A(a)(ii)-(vi)] (the Second to Sixth Franchise Opinions), Domino’s accepted that any such representations - if they were made - were statements of opinion (and/or statements of legal conclusion) regarding the legal entitlements as to the rates of pay and terms and conditions of all Delivery Drivers and In-Store Workers.

(e)    It alleged that at all times during the Relevant Period, it held the opinion that, unless a later Agreement applied, the 2005 Agreement applied to all Delivery Drivers and In-Store Workers employed in the Domino’s business by Domino’s or a franchise operator (the 2005 Agreement Opinion) (AD [27R]).

(f)    It also alleged that, in accordance with the 2005 Agreement Opinion, and by reference to the terms of the Agreements, the agreements made by Domino’s (on its own behalf and on behalf of the franchise operators) with the SDA, its Compliance and Audit Activities and DBS were configured to calculate amounts to be paid to employees in accordance with the Agreements and those agreed rates (but subject to the Deemed Base Rates during the Relevant Period which had been approved by the FWO) (AD [31.10.4]).

658    Each of the six alleged Franchise Opinions is very similar to the others. Domino’s having accepted that it represented to franchise operators that it held the First Franchise Opinion, and having admitted that it held the 2005 Agreement Opinion, and that it configured its Compliance and Audit Activities and DBS to calculate amounts to be paid to employees in accordance with the pay rates and terms and conditions of the Agreements and to reflect its 2005 Agreement Opinion (that the 2005 Agreement applied to all Delivery Drivers and In-Store Workers employed by Domino’s or a franchise operator), I find it hard to see any basis for Domino’s to deny that it represented to franchise operators that it held the Second to Sixth Franchise Opinions. I can see no proper basis to draw a distinction between the First Franchise Opinion and the Second to Sixth Franchise Opinions, when they all have the same thrust.

659    For the reasons I have explained, I found that Domino’s conduct in providing the Franchise Information, the Franchise Agreement Documents, the Franchise Disclosure Documents, and/or Compliance Information to franchise operators and to prospective franchise operators during the Relevant Period was likely to convey each of the Franchise Representations to the reasonable franchise operator. But if I am wrong in that conclusion, for essentially the same reasons I consider that the ordinary or reasonable franchise operator was likely to have understood Domino’s impugned conduct as conveying each of the Franchise Opinion Representations. Putting to one side my reasoning that Domino’s impugned conduct conveyed representations of fact rather than of opinion or belief, the rest of my reasoning applies mutatis mutandis.

12.4    Whether Domino’s represented that it had reasonable grounds for the Franchise Opinion Representations

660    The applicant contended that, if the representations on which he relied are properly to be characterised as representations of opinion, then Domino’s conduct conveyed an implied representation that it had reasonable grounds for those opinions and that Domino’s did not, in fact, hold that opinion on reasonable grounds. The applicant had the onus to establish that Domino’s representations of opinion carried an implied representation that it had reasonable grounds for that opinion: Ireland at [34].