Federal Court of Australia

Fair Work Ombudsman v Woolworths Group Limited (Remaining Issues) [2026] FCA 1229

ORDERS

THE COURT ORDERS THAT:

1.    Woolworths file and serve a submission of up to 15 pages in length (which is not to contain any tables or to attach any documents) within 14 days of these reasons dealing with the following topics:

(a)    where it says the evidence is located which proves that any of the Calculation Employees made agreements for the purposes of cl 31.2 of the Award (limited to five pages);

(b)    where it says the evidence is located which proves that any of the Calculation Employees did overtime hours which were not reasonably required (limited to five pages); and

(c)    where it says the evidence is located which proves that any of the Calculation Employees made an agreement within the meaning of cll 31.2(b), 29.3 and 28.14(f)(ii) (limited to five pages).

2.    The FWO file any response limited to 15 pages in the same form within a further 14 days.

3.    Save for those affected by orders 1 and 2, the parties confer with a view to formulating the appropriate declarations within 21 days.

4.    The matter be listed for case management on Thursday 1 October 2026.

5.    The matter may be relisted on 3 days’ notice.

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

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for case management on Thursday 1 October 2026.

2.    The parties confer with a view to formulating the appropriate declarations within 21 days.

3.    The matter may be relisted on 3 days’ notice.

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

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for case management on Thursday 1 October 2026.

2.    The matter may be relisted on 3 days’ notice.

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

ORDERS

THE COURT ORDERS THAT:

1.     The matter be listed for case management on Thursday 1 October 2026.

2.    The parties confer with a view to formulating the appropriate declarations within 21 days.

3.    The matter may be relisted on 3 days’ notice.

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

REASONS FOR JUDGMENT

PERRAM J:

1    I published reasons in this proceeding on 5 September 2025: Fair Work Ombudsman v Woolworths Group Ltd; Fair Work Ombudsman v Coles Supermarkets Australia Pty Ltd; Baker v Woolworths Group Ltd; Pabalan v Coles Supermarkets Australia Pty Ltd [2025] FCA 1092; 343 IR 340. It is convenient to refer to the trial reasons as the Liability Reasons (or ‘J’). In the Liability Reasons, a range of issues were determined which related to the payments due to employees of both supermarkets who filled store-based management positions, i.e., counter heads. Those issues were determined in four separate proceedings: a regulatory action brought by the Fair Work Ombudsman (the ‘FWO’) against each supermarket and two parallel class actions. The four cases were heard at the same time.

2    The only orders made at the time the Liability Reasons were delivered was that the matters be listed for case management on 27 October 2025. Agreement on the form of orders was not able to be reached by that date, and the matter was stood over to 20 March 2026 for further directions. Both before and after the directions hearing on 20 March 2026 the parties exchanged extensive written submissions about the form of relief. Submissions on remaining issues and declarations were filed on 16 March, 18 March, 2 April, 15 May and 22 May 2026. I then ordered the parties to file submissions on a further issue arising after judgment was reserved, which they did on 29 July, 5 August, and 12 August 2026. In total there were 554 pages of submissions after delivery of the Liability Reasons.

3    These reasons assume familiarity with the Liability Reasons. It is convenient to deal with the four proceedings separately. As in the Liability Reasons, I refer to the four proceedings as ‘FWO v Woolworths’, ‘FWO v Coles’, ‘Baker’ and ‘Pabalan’.

FWO v Woolworths

4    Using the FWO’s nomenclature, the issues which divide the parties may be put in two groups: (a) those which are said to remain for determination and (b) those which constitute the main areas of dispute between the parties which are preventing agreement on the form of the declarations. To these may be added a third issue concerned with the form of the declarations more generally.

5    I will deal with the issues in that order:

A. Remaining Issues

6    There were initially 11 of these issues but, as will be seen, they have narrowed as the parties exchanged submissions.

First Issue: Whether short break penalty should be added to other penalties

7    In the Liability Reasons, it was held that the short break penalty in cl 31.2 of the General Retail Industry Award 2010 (the ‘Award’) should not be construed cumulatively as requiring the imposition of penalties on penalties. Hence, the expression ‘double the rate they would be entitled to’ in cl 31.2(b) was to be construed as ‘double the minimum hourly rate’: J[327]. The FWO now says that there is a residual issue as to whether the short break penalty is to be construed additively, that is to say, whether the penalty rate for which it provides is to be added to any other penalties or entitlements which are also payable for the same hours.

8    Whether the short break penalty should be construed cumulatively was Issue No. 4 at trial. The relevant pleadings were the FWO’s further amended statement of claim (‘FASOC’) at §31 and Woolworths’ further amended defence (‘FAD’) at §31. FASOC §31 is in these terms:

As a matter of construction, if the Entitlement to Breaks between Work Periods is not complied with, the rate the employee is entitled to be paid under the Retail Award, clause 31.2(b), is double the rate of pay that would otherwise be payable to the employee, including double any overtime or penalty rates, where applicable (Double the Rate of Pay).

9    FAD §31 is in these terms:

In answer to paragraph 31, the respondents:

a.    deny paragraph 31; and

b.    say further, that if the Entitlement to Breaks between Work Periods is not complied with, clause 31.2(b), properly construed, requires the employer to pay the employee double the rate prescribed by clause 17 of the Retail Award (or clause 18 of the Retail Award in the case of junior employees), in addition to any shift penalties or overtime payments that the employee is otherwise entitled to be paid for the hours worked (the Short Break Penalty); and

c.    say further that, to the extent that the applicant’s claim alleges that clause 31.2(b) requires the employer to pay the employee double any overtime or penalty rates, it amounts to the payment of a penalty on a penalty and is not compensable on a proper construction of the Retail Award.

10    The situation on the pleadings is therefore that the FWO alleged the short break penalty was cumulative which was denied by Woolworths who alleged that it was additive. Issue No 4 was in these terms:

Does the phrase “double the rate of pay they would be entitled to” in clause 31.2(b) of the Retail Award mean an employee is to be paid:

a.    double the rate prescribed by clause 17 of the Retail Award (or clause 18 of the Retail Award in the case of junior employees) in addition to any shift penalties or overtime payments that the employee is otherwise entitled to be paid for the hours worked; or

b.    double their rate of pay, including double any separately applicable overtime or penalty rates?

11    The FWO’s submissions at trial advanced its cumulative approach. In its written submissions at trial, Woolworths denied the FWO’s cumulative approach but did not advance the additive approach which it had pleaded. In Woolworths’ closing address, Dr Higgins SC said this at T1375.6-12:

So we essentially contend that 31.2(b) provides for a payment in the nature of an allowance paid in addition to penalty rates and overtime that an employee is otherwise entitled to be paid for the hours of work. But the difference between us and the Ombudsman, which your Honour will appreciate, is that any shift penalties or overtime payments are not thereby doubled. The underlying rate is doubled and super added is any penalty rate, etcetera.

12    Although this is not a full-throated assertion of the additive approach, it may be accepted that it was sufficient to raise it. However, after judgment was reserved, Woolworths resiled from its additive construction: Woolworths’ submissions dated 24 May 2024 at [22]. In the same paragraph, it floated an amendment to FAD §31 which would remove its assertion that the penalty was additive.

13    The situation at the end of the trial was that there was a pleaded issue raised by Woolworths as to whether the short break penalty was additive, but it abandoned that contention in its submission dated 24 May 2024. No issue that the penalty was additive was thereafter raised by the FWO.

14    In the Liability Reasons the FWO’s pleaded case that the short break penalty was cumulative was rejected. At J[301] Woolworths’ additive approach was noted but not resolved. It was not resolved because the additive approach was not being asserted by either party.

15    Having lost the cumulative approach to the short break penalty, the FWO now seeks to assert the additive approach. This was not part of its case at trial and was not advanced by any party after Woolworths abandoned the additive approach in its submissions of 24 May 2024. For it to be an issue in the proceeding it would be necessary for the FWO to amend FASOC §31. Whilst the additive issue has the appearance of being open on the pleadings because of FAD §31, in fact, that defence was abandoned.

16    By the end of the trial there was therefore no issue about the additive approach. However, after judgment was reserved, Woolworths advanced the submission that where there were multiple applicable penalty rates, it was obliged to pay the highest applicable penalty. It did so by adopting an oral submission which was made to that effect by Coles in FWO v Coles in response to a question asked by me. Woolworths did so in its written submission dated 24 May 2024 at [7] and [21]-[22] concerned with the Application by The Australian Retailers Association [2024] FWCFB 251 (Hatcher J, Clancy DP and Matheson C) (the ‘Double Time Variation Decision’).

17    There had been no such issue during the trial or raised on the pleadings. For that reason, I did not deal with it in the Liability Reasons.

18    However, it is apparent from the parties’ competing declarations concerning Calculation Employee 33, that there is an actual dispute as to whether his entitlements are to be approached on the basis of the additive approach (which is FWO’s proposed declaration 5) or the highest rate approach (which is Woolworths’ proposed declaration 5).

19    Regardless of the state of the pleadings, the framing of relief has uncovered the existence of a controversy as to whether multiple penalty rates for Calculation Employee 33 are to be assessed on an additive or highest rate basis. As the two approaches are true alternatives, I ordered the parties to file short submissions on which approach should be accepted on 21 July 2026.

20    I prefer the highest rate approach. When a particular hour of work triggers more than one penalty rate, the employer is confronted with simultaneous payment obligations. In the same way that the payment of a contractual salary entitlement discharges the monetary obligation to pay a minimum rate under an award, so too payment of the highest penalty rate discharges each of the other monetary obligations arising from provisions providing for that hour a lower penalty rate.

Second issue: Whether short break penalty applies where two shifts commence on the same day

21    The relevant words in cl 31.2(a) are these: ‘the completion of work on one day and the commencement of work on the next day’.

22    The FWO submits that the relevant words in cl 31.2(a) have a particular effect on Calculation Employee 34. However, it eschews articulating an explicit construction of the words used in cl 31.2(a). Instead, it points to the position of Calculation Employee 34 who worked as follows:

(a)    he commenced work at 9.45am on 13 November 2018 and finished work at 3.59pm that same day (‘first shift’, of 6 hours and 14 minutes);

(b)    he then recommenced work 6 hours and 36 minutes later at 10.35pm on 13 November 2018 and finished work at 3.36am on 14 November 2018 (‘second shift’, of 5 hours and 1 minute); and

(c)    he recommenced work 6 hours and 41 minutes later at 10.17am on 14 November 2018 and finished work at 5.06pm that same day (‘third shift’, of 6 hours and 49 minutes).

23    The FWO says that the hours worked from midnight to 3.36am on 14 November 2018 in the second shift were worked on the ‘next day’ compared to the first shift. This may be accepted. However, the FWO then submits that Calculation Employee 34 commenced work at midnight on 14 November 2018, that is to say, he commenced work half-way through his shift. On this basis, the FWO submits that the employee did not have a 12-hour break between the end of the first shift and the beginning of the second.

24    The effect of this approach is that cl 31.2(a) applies to shifts within the same day. I reject the argument for two reasons. First, Calculation Employee 34 did not commence work at midnight on 14 November 2018 since he had already commenced work at 10.35pm the night before. A single shift cannot be commenced twice which is to say that the word ‘commence’ in cl 31.2(a) means ‘commence’.

25    Secondly, the FWO’s approach leads to a result which causes the short break penalty to be applied to shifts which begin on the same day. That outcome is textually inconsistent with the words ‘the completion of work on one day and the commencement of work on the next day’ which should be construed as meaning what they say.

26    There does not appear to be a pleaded issue relating to this question, but the parties did put the issue before me at trial as Issue 11. The Liability Reasons did not deal with Issue 11. Since the parties are united in the view that the issue should be decided and since it affects the position of Calculation Employee 34 the matter should be determined in the manner indicated.

Third issue: Whether agreements were made for the purposes of the short break penalty under cl 31.2

27    In the Liability Reasons I concluded that for there to be an agreement under cl 31.2(c) it was necessary for the objective circumstances to show that the employee was aware of the entitlement and agreed to forego it: J[192] and [201]. Further, it was held that Woolworths bore the burden of proving that such an agreement had been reached: J[201]. It was also held that the bare fact that an employee agreed to a roster with a 10-hour break between shifts did not prove that there had been an agreement under cl 31.2(c): J[194].

28    On this basis, the FWO submitted that Woolworths had failed to discharge its burden of showing that any of the Calculation Employees had made agreements for the purposes of cl 31.2(c).

29    Woolworths is prepared to concede that it did not establish agreements for a subset of the Calculation Employees it identifies in its proposed declarations. But it resists the wider proposition that agreements had not been proved for the other Calculation Employees. It instanced the position of Calculation Employee 19, Ms Doeblein, who said under cross-examination that she had understood that she was entitled to a break of 12 hours between shifts. However, this does not prove that she was aware that by agreeing to a shorter break she was giving away an entitlement to be paid a penalty rate. Woolworths’ submission impermissibly elides her entitlement to a 12-hour break between shifts with the entitlement to be paid at a penalty rate if that 12-hour break was not given. That an employee was aware of the former says nothing about their awareness of the latter. That being so, Ms Doeblien’s statement in her cross-examination does not show that she agreed to give up her entitlement to be paid the short break penalty.

30    Woolworths went on to develop a submission that determining the position of particular employees was a Tier 3 issue which would require extensive submissions in light of the evidence. In reply, the FWO submitted that the whole point of identifying the Calculation Employees was to permit precisely that to occur, citing Fair Work Ombudsman v Woolworths Group Ltd (Case Management) [2022] FCA 376 at [5].

31    The scope of the initial trial was delimited by order 1 made on 25 July 2022 which was in these terms:

Further to the judgment in Fair Work Ombudsman v Woolworths Group Limited (The Calculation Employees) [2022] FCA 203, the employees who will be the subject of the Initial Judgment (as that term is defined in the Originating Application) be confined to the following 32 employees as identified by number in Schedule A to the Further Redacted Amended Statement of Claim filed on 4 February 2022, namely, employees numbered 3, 5, 7, 9, 10, 11, 16, 19, 22-26, 28, 30, 33-35, 40-42, 45, 53, 55, 57, 58, 60, 63, 66, 67, 69 and 70, with issues of liability and issues as to the principles and methodology applicable to the quantification of any compensation owing to any of the Calculation Employees to be determined in respect of those 32 employees by the Initial Judgment (save for calculating the actual amount of any compensation owing to any Calculation Employee).

32    All factual issues concerning Tier 3, apart from quantification, were therefore part of the initial trial. The FWO’s submission should, therefore, be accepted.

33    However, it is also fair to say that the parties’ adherence to the role of the Calculation Employees was patchy due to the sheer number of issues they raised and the additional complexity created by concatenating those issues on to each other. Woolworths did not make submissions about what the position of the calculation employees would be in the case that it was found to bear the onus of proof and that the FWO’s construction of the short break penalty with respect to employee agreements was correct (which occurred).

34    It would be possible to take the position that the parties made extensive submissions about these employees and for their positions to be resolved by reference to those submissions. However, their submissions though long are not very enlightening, and it is convenient from my perspective to take up Woolworths’ suggestion.

35    Woolworths should produce a short written submission within 14 days of no more than five pages in length. For each Calculation Employee that it says made an agreement under cl 31.2(c) the submission should identify the evidence upon which it relies to prove that fact. It need not address the credit of any witness as the parties have already made detailed submissions about that. There should be no annexures, tables, aides-memoire, summary documents, schedules, lists of issues or the like. The only point of the submission is to facilitate an examination of the evidence which is said to be relevant. The FWO may have 5 pages in response on the same basis.

36    This will permit the making of findings of fact about each Calculation Employee who is said to have made such an agreement. In the meantime, it is appropriate to make the declarations sought by Woolworths in relation to the employees where it already concedes that it cannot discharge its burden, subject to any changes to those declarations necessary to give effect to other parts of these reasons. On receipt of the parties’ submissions, further findings will then be made, and the parties can revisit the declaratory relief at that point.

Fourth Issue: Whether Woolworths has failed to discharge the burden of proving that all overtime hours worked by the Calculation Employees were not reasonably required

37    In the Liability Reasons at [380] it was found that overtime pay under cl 29.2(a) is not payable for hours worked that were not reasonably required, and Woolworths bears the burden of proving that the work was not reasonably required in any particular case. In relation to some of the Calculation Employees, Woolworths accepts that it has not discharged that burden. Declaratory relief should be granted in relation to those employees, subject to any other amendments to those declarations needed to give effect to these reasons. For the balance of the Calculation Employees, the problem is essentially the same as that which arises in relation to the third issue. The same approach should be taken. Woolworths should file written submissions within 14 days not exceeding five pages, identifying the evidence which shows that each Calculation Employee worked overtime hours which were not reasonably required. The FWO should provide a similar submission in response within 14 days.

Fifth Issue: Treatment of rostered hours worked on a day when overtime is applied to hours worked at the start of a shift

38    In its reply submissions, the FWO submitted at [3(a)] that this was no longer an issue which needed to be resolved. This was because Woolworths had submitted at [104] that the parties were in agreement about the issue. Woolworths submitted that making its proposed declaration 47 would clarify the position. In its reply submissions, the FWO said that Woolworths’ proposed Declaration 47 should not be made because ‘Calculation Employee 5 (Renee Backhouse) became entitled to overtime by reason of working in excess of her rostered hours at 3.09pm on 5 March 2018’.

39    It is thus not correct that there is no issue about this issue. There is a live issue as to whether Woolworths’ proposed declaration 47 should be made. It is in these terms:

For the purposes of cl. 29.2(f) of the Retail Award, the hours worked by Calculation Employee 5 [Renee Backhouse ID #181676] between 6.09am and 7am on Monday 5 March 2018 attracted overtime under cl. 29.2(a) of the Retail Award because those hours fell outside the span of hours in clause 27.2 of the Retail Award. However, the hours worked by Calculation Employee 5 between 7am and 4pm on 5 March 2018 did not attract overtime.

40    The evidence concerning this is in a spreadsheet entitled ‘Summary of Woolworths’ Records: Employees’ Kronos Roster and Clocking data’. Row 5 of the tab for Ms Backhouse reveals that on Monday 5 March 2018 her roster start time was 7am and her rostered finish time was 4pm. She punched-in at 6.09am and punched-out at 4pm.

41    Clause 27.3 of the Award provides that an employee may be rostered up to a maximum of nine ordinary hours per day provided that on one day per week an employee can be rostered for 11 hours. Neither party sought to make anything of the potential for an 11-hour shift in this particular case.

42    The parties agree that by working before 7am Ms Backhouse worked outside the span of hours and was therefore entitled to overtime for 51 minutes under cl 29.2(a). I would agree with this on the assumption that Ms Backhouse started at 6.09am because there was work which reasonably needed to be done and not for reasons of her own convenience.

43    However, the FWO submits she was also entitled to overtime for the 51 minutes after 3.09pm. This was because she was then working outside the nine-hour roster condition in cl 27.3. The thinking behind this is that she began work at 6.09am and that nine hours after that was 3.09pm. By working for another 51 minutes to 4pm, Ms Backhouse therefore worked for 51 minutes outside her nine-hour roster condition.

44    Ms Backhouse is not entitled to overtime both for the 51 minutes before 7am and for the 51 minutes after 3.09pm. On the assumption above that I am willing to make, it is true that the overtime entitlement relating to the span of hours (cl 27.2) was triggered when Ms Backhouse worked from 6.09am to 7.00am. However, the roster condition was that she should be rostered on for nine ordinary hours (cl 27.3). Overtime hours do not count as ordinary hours as the Liability Reasons explain at [510]-[524]. Thus, the FWO’s position that the nine hours are to run from 6.09am, with overtime accruing after 3.09pm cannot be accepted. Those nine hours must be ordinary hours which the time worked before 7am cannot be.

45    In Ms Backhouse’s case, she was rostered on for nine ordinary hours from 7am to 4pm. She in fact worked those ordinary hours. The difficulties in treating an overtime hour as an ordinary hour were explained in the Liability Reasons at [510]-[524]. The FWO’s approach departs from those conclusions. As the Liability Reasons at [524] observe, if this approach to ordinary hours and overtime hours is not taken, one can be confronted with the possibility of the same hour triggering multiple overtime entitlements and leading to double compensation. The FWO’s position illustrates that risk. By impermissibly treating the 51 minutes outside the span of hours as ordinary hours, the FWO’s approach results in Ms Backhouse being paid overtime for 102 minutes even though she only worked for an extra 51 minutes. The Award does not work this way. The FWO’s approach should be rejected.

46    In that circumstance, Woolworths’ proposed declaration 47 should be made.

Sixth Issue: Whether Woolworths failed to discharge the burden of proving that the Calculation Employees made agreements for the purposes of cll. 29.3 and 28.14(f)(ii)

47    From an evidentiary perspective, this issue is the same as for the third issue and the same approach should be taken.

Seventh Issue: Part-time employees

48    The parties are in agreement that there is no issue about part-time employees.

Eighth Issue: Whether the roster week for Calculation Employees commenced on a Monday

49    At trial, the parties agreed that it was the employer who fixed the day on which a roster would commence for the purposes of cl 28.10. The FWO’s submission that the day on which a roster week commenced had to be the same for all employees was rejected: J[455].

50    At trial, the FWO pointed to the statement of agreed facts at [7], [9], and [10] for the proposition that Woolworths’ roster week began on Monday. Woolworths submitted at trial that there were employees whose roster weeks began on Sunday but gave no reference in the evidence for that. But it was held that when the roster week began was a question of fact for each Calculation Employee: J[457]. In reaching that conclusion, the submissions the parties had made about when the roster week began were referenced.

51    This issue appears to be about cl 28.10. The FWO’s proposed declaration is couched in terms of cl 28.10 and Woolworths’ submissions approached the issue on the same footing. However, the FWO’s submissions appear to be directed at cl 28.1. Clause 28.1 provides for four different weekly rostering cycles with an option to include others by agreement. The four cycles are weekly (38 hours), fortnightly (76 hours), three-weekly (114 hours) and four-weekly (152 hours). Clause 28.10, by contrast, is concerned with the number of the days in each week that ordinary hours are to be worked (generally five). Although it is likely that the FWO’s submission is mistakenly misdirected at cl 28.1 when it is really about cl 28.10 (in light of the declaration it seeks), I should record that the concept of a week in both clauses is the same.

52    The FWO now submits that the Court should make a finding that all of the Calculation Employees had roster weeks commencing on Monday because of the statement of agreed facts. Woolworths made no response to the FWO’s submission insofar as it was based on the statement of agreed facts. But it did submit that the Liability Reasons made no finding about this and the Court should not now make such a finding. It pointed to an employee whose roster week appeared to run from Tuesday.

53    The statement of agreed facts at [7], [9] and [10] does not establish that the Calculation Employees had a roster week which started on a Monday. The statement of agreed facts explains how Woolworths’ two rostering systems work. The employees have two rosters. The first roster, which is based on their contract, is maintained by a system known as SuccessFactors (or ‘SF’). It records their base hours of work and is managed through the SF System. The second roster sets out the actual days and hours to be worked in a given period and is generated by the Kronos System. For each employee, the SF roster is automatically fed into the Kronos System and generates two patterns for each employee. The first pattern is known as the employment term of contract pattern and the second is called the schedule pattern. The schedule pattern is the starting point for each employee’s Kronos Roster. The schedule pattern is then used to generate for a particular date range, a ‘schedule planner’ for a particular store, or the employees in a department.

54    Paragraph 7 of the statement of agreed facts is an illustration ‘by way of example’ of the schedule planner for the employees in the bakery department at the Wheelers Hill store on the week commencing on 13 February 2023. It may be accepted that the schedule planner shows a week which commences on a Monday. However, the schedule planner is not the published roster. In any event, it is an example. I do not accept the FWO’s submission that [7] shows that the roster week for all Calculation Employees began on a Monday.

55    At [9], the Agreed Statement of Facts explains that when the SF roster is fed into the Kronos System it builds the schedule pattern for the employee which is then adjusts for pre-approved leave. An illustration of this is given at the paragraph. The text of [9] says nothing about an employee’s roster starting on Monday. I accept in the illustration given that the week begins on Monday. However, this does not prove that for every Calculation Employee the roster week began on Monday.

56    At [10] the Agreed Statement of Facts explains how the schedule line is the starting point for the Kronos Roster. The Kronos Roster for each weekly roster is set within each store a few weeks in advance. Paragraph 10 then sets out in some detail how this is done. There is no need to set that out. At no point does it say that the roster week begins on a Monday. It does give examples and it may be accepted that in those examples the roster week begins on a Monday. But these are only examples. I do not accept that [10] is evidence that for all Calculation Employees, the roster week begins on Monday.

57    In those circumstances, I reject the FWO’s submission that the statement of agreed facts proves that the roster week for all Calculation Employees began on Monday. If the day upon which the week started for roster purposes was one of the matters which was discussed in the Agreed Statement of Facts, then the outcome might be different. In that case, the examples would reflect the agreement. But that is not the case.

58    In that circumstance, I remain of the view I expressed at J[455]-[457] that the issue can only be resolved at looking at the rosters of each of the Calculation Employees. Neither party’s submissions at trial equipped me to answer that question and they do not do so now. In that circumstance, I decline to make the FWO’s proposed declaration 23.

Ninth Issue: The number of hours of annual leave taken by each Calculation Employee

59    According to the FWO’s submissions in reply at [3(b)] there is no longer any issue about this.

Tenth Issue: Whether any Calculation Employee made an agreement pursuant to cl 20.4(f)(iii) to take TOIL

60    This is a duplicate of the sixth issue and may be disregarded.

Eleventh Issue: The start date of 4-week roster period

61    According to the FWO’s submissions in reply at [3(c)] this is no longer an issue.

B. Main areas of disagreement which are preventing agreement on the proposed declarations

First Issue: What is needed for a declaration to have a concrete effect?

62    The Liability Reasons at J[860]-[861] say this:

[860] These reasons are sufficient for the very large number of questions posed by the parties to be answered although in some cases the answer will be that the question does not arise. I do not think however that their efforts should be directed at answering those questions based on my reasoning. The parties’ conflicting lists of issues have been a distinct hindrance in this litigation and it were best if perhaps the Full Court were not troubled by them. Rather, the parties should now do what I have indicated at the start of these reasons which is to identify for each conclusion a person for whom that conclusion has a concrete effect. There need only be a single such effect, i.e., the fact may be as narrow as the overtime entitlement on a single shift.

[861] Subject to the views of the parties, the course I would propose to take is that once one such person is identified for each issue I have resolved, I will make appropriate declarations in respect of that person and their relevant entitlement. I do not see that there can be any disagreement about facts of this kind. That being so, the parties should agree the terms of the declarations. Those declarations will then provide a clear platform for any appeals or cross-appeals.

63    The parties are unable to agree between them what constitutes the ‘concrete effect’ referred to in [860]. The FWO’s position is that a declaration will not be concrete unless it relates to a contravention or event of non-compliance with the Award. In effect, it says that the declarations must identify underpayments.

64    The need to identify a concrete effect is informed by the constitutional principle which underpins the observations at J[860]-[861]. The Court is not permitted to give an advisory opinion: Re Judiciary Act 1903-1920; Re Navigation Act 1912-1920 [1921] HCA 20; 29 CLR 257 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ. But a declaration will be appropriate if the question which it resolves is a real and not a theoretical question, is sought by a party with an interest and there is a contradictor: Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 437-438 per Gibbs J (Walsh J agreeing at 427, at 448 per Stephen J, at 450 per Mason J, and at 426 per McTiernan J), citing the observations of Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448.

65    The operation of the provisions of the Award is a real issue between the parties. Only with such declarations can the operation of the Award be definitively identified. The initial trial was not concerned with the question of quantification: see order 1 of 25 July 2022. The question of the actual amounts due for each Calculation Employee is a topic which is yet to be tried. What has been tried and determined is what the entitlements of the Calculation Employees are. Declarations which record those entitlements would be sufficiently concrete as they would resolve the real and not theoretical questions of how the Award is to be construed and applied with respect to their hours and conditions of work.

66    The FWO submits that the application of the set-off clause or the pari passu principle (explained at J[719]-[739]) may mean that no actual amounts are due to an employee if all their penalty entitlements in each fortnight have been satisfied by a salary payment. However, to embark on that issue would be to embark upon the process of quantification which by order 1 of 25 July 2022 was not to occur at the initial trial.

67    In that circumstance, it is inappropriate to defer declaring the operation of the Award on the entitlements of the Calculation Employees until the actual quantum of their claims is determined. The FWO’s submission that there can only be a concrete effect of the kind I referred to once quantification has taken place is rejected.

68    It may be that the FWO also submitted that no declaration that there was no entitlement in a particular circumstance should be made (at e.g. [133]-[135] and [138] of its submissions). If so, the point seems to be that such a declaration has no relevance to Woolworths’ liability to pay compensation or a penalty, i.e., if there is no entitlement, then Woolworths cannot be liable for failing to pay it or to have contravened a civil liability provision requiring its payment. This submission proceeds on an assumption that the non-liability of a party is not a ‘liability’ which can be declared. However, that a party is not liable is just as much a declaration of liability as the converse. The FWO’s submission effectively seeks to have its own victories recorded by declaration but not its losses. I do not accept that this a correct way to proceed. Where the FWO has alleged that Woolworths is liable on some basis and lost, Woolworths is entitled to have its position vindicated by a declaration just as much as the FWO. I therefore reject the FWO’s submission (if it did truly make such a submission).

Second Issue: Extent of remuneration to be set off against award entitlements under cl 6 of the standard contract of employment

69    Clause 6 of the contract of employment is set out at J[40]. It provides that ‘as far as possible, the Remuneration and other benefits under this Agreement will be in satisfaction of the Minimum Entitlements over a 26 week period calculated at the applicable minimum rate’. ‘The Remuneration’ was defined in the covering letter to the contract to have three elements: base salary, a car allowance and superannuation. I held that cl 6 only operated to permit the set-off it contemplated within a pay period and that the six-month pooling it contemplated was ineffective.

70    The FWO seeks declaratory relief (in its proposed declaration 39) to give effect to that conclusion but limits the payments available for the set-off to ‘the Remuneration’ whereas cl 6 explicitly includes as available for set-off ‘other benefits under this Agreement’. Woolworths says that it invokes the contractual language and seeks a declaration that the payments available for set-off should also include ‘other benefits (excluding payments under Woolworths’ Short Term Incentive Plan) paid by Woolworths under the Woolworths Standard Employment Contract’.

71    Woolworths’ proposed declaration 39 explicitly carves out the short-term incentive plan. The FWO agrees that the short-term incentive plan is not part of the available payments under cl 6. The FWO then submits that I should not adopt Woolworths’ excision of the short-term incentive plan from the declaration. This is not because the FWO thinks the excision is wrong. Rather, it is because it believes that the matter is so clear that the excision is unnecessary.

72    There are therefore two issues. First, what payments should be declared to be available for set-off? Secondly, it being agreed that the short-term incentive plan is not available for set-off purposes, should this be specifically excluded in the declaration or is it so obvious that exclusion is not necessary?

73    As to the first issue, the answer is provided by cl 6. What can be set off is ‘the Remuneration and other benefits under this Agreement’. This wording was noted at J[57]-[58]. The FWO’s submission that I held that the Remuneration consisted of the base salary, the car allowance and superannuation is correct. The FWO submits that it is not clear what the words ‘and other benefits’ do and that there was no evidence at trial that any employee received another benefit under the agreement. Woolworths denies this, pointing to the position of Calculation Employee 55 who received a location allowance. In response, the FWO submitted that I had accepted that Remuneration meant only base salary, car allowance and superannuation and that this excluded the possibility of a location allowance being available to discharge Woolworths’ obligations. This does not follow. Further, the FWO’s submission pretends that the words ‘other benefits paid under this Agreement’ are not there. The definition of Remuneration throws no light on what the other benefits are. In any event, since the declaration concerns the legal operation of the agreement it is inescapable that the declaration should be fashioned by reference to the terms of the contract to which it relates.

74    In relation to the second issue, the FWO’s position is without merit. Woolworths’ excision will be included.

Third Issue: Overtime for working more than rostered number of hours on a day

75    There was a substantive issue at trial as to whether overtime was payable when an employee worked hours outside of the hours in their published roster. This issue was determined adversely to the FWO. I dealt with the topic of overtime in section ‘D.3 Overtime’ between J[328] and [527]. Considerable effort was expended by the FWO at trial in seeking to demonstrate that hours worked outside a roster were always overtime. At J[351] I recorded the FWO’s submission that hours worked outside an employer’s published roster was overtime. At J[352] it was noted that the overtime clause, cl 29.2(a), was not triggered as a matter of text by the fact that an employee worked outside rostered hours as cl 29.2(a) operates by reference to a roster condition, not a roster. At J[353]-[375] I then dealt with a number of submissions the FWO advanced in an effort to circumvent that textual problem. These submissions, broadly, concerned a contention that the various roster notification requirements in cl 28.14 constituted roster conditions of the kind referred to in the overtime clause, cl 29.2(a). I was unpersuaded by the series of textual and non-textual arguments said to support this construction. At J[375] this conclusion was reached:

That conclusion means that the FWO’s contention that any work done outside a published roster is ipso facto overtime cannot be accepted.

76    At [115] of its current submissions, the FWO now says ‘The FWO’s contention is that the logical consequence of the Court’s reasoning is that where an employee worked hours on a day which were additional to their rostered hours, those hours attract overtime’. Since this is the opposite of what I concluded, I do not accept the FWO’s submission.

77    There is a concealed issue here hinted at by the parties’ submissions but not robustly confronted. Woolworths’ proposed declarations are premised on its operating a 152-hour roster over a four-week cycle. This is the kind of roster referred to in cl 28.1(d). It was Woolworths’ evidence that this was, in fact, how its rosters were prepared and the FWO in its evidence also proceeded on that factual basis: see the affidavit of Victoria Lovell dated 27 March 2023 at [53] together with the calculation sheets for each Calculation Employee attached to that affidavit. Despite that, the FWO at various junctures and in various draft declarations sought to invoke the 38-hour roster in cl 28.1(a). It is unclear to me whether this was through oversight or whether, instead, it concealed the view that each of the clauses in cl 28.1 had simultaneous effect. If it was the latter, I do not accept this reading of cl 28.1. The clause provides an employer with four choices about its rostering arrangements (or with agreement other possible choices as well). However, once the choice is made it is the corresponding clause which applies. An employer who adopts the cl 28.1(d) 152-hour roster is not subject to the 38-hour roster condition in cl 28.1(a). There are two reasons for this. First, if each clause is read as being simultaneously in force, then cl 28.1(b) to (d) perform no work. For example, if an employer is required to have a 38-hour roster then it will necessarily have 152 hour four-week roster. The FWO’s approach (if it is indeed its approach), erroneously treats the clauses as freestanding obligations. Secondly, the approach ignores the words ‘worked in any of the following ways’ which shows explicitly that a choice is given to the employer (unless some other arrangement outside cl 28.1(a)-(d) is agreed to).

78    In practical terms, because Woolworths operates on a four-week roster cycle of 152 hours, it will rarely be apparent until the end of the roster cycle whether work has been done by an employee outside the roster condition in cl 28.1(d). The calculation of overtime in relation to the roster condition in cl 28.1(d) is something which will only be known at the end of the roster cycle. This has some implications for other entitlements which are premised in part on the idea of working on overtime. One of these is the meal allowance in cl 20.1 which I deal with below.

Fourth Issue: The enlivenment of the entitlement to meal allowance conferred by cl 20.1

79    The FWO’s submissions about this issue are set out at [123]-[128]. The FWO submits that it remains to be determined what the expressions ‘required to work’ and ‘ordinary time of ending work’ mean in the meal allowance in cl 20.1. At [534] of the Liability Reasons I said this:

The parties join issue about whether the working of flexible hours by an employee is caught by the word ‘required’. I have explained how these issues are to be handled under the topic of authorisation previously. Flexible hours worked for reasons of personal convenience do not trigger an overtime allowance. Since no overtime is payable in that situation the meal allowance is never triggered. At least insofar as flexible working hours are concerned, the meaning of the word ‘required’ never arises.

80    The first question has therefore been answered. I dealt with the second question at J[536]:

The question then arises as to what the words ‘the employee’s ordinary time of ending work’ mean. In my view, this simply refers to when the employee would have finished on the day in question but for the additional hour or hours of overtime. ‘Ordinary’ is the counterpoint of overtime. Thus ‘ordinary time of ending work’ means the time at which the employee would have finished but for the overtime. For example, if the employee otherwise worked their rostered hours then it will be the rostered end time. If the employee flexibly altered their hours of work, it will be the finish time flexibly thus altered.

81    The FWO’s submission did not identify what aspect of the meal allowance I had not determined, and I cannot see that there is one. Further, so far as I can see, Woolworths made no submissions about this matter.

82    At the case management hearing on 20 March 2026, counsel for the FWO told me that this issue ‘ties in’ with the issue above regarding how overtime is to be calculated when an employee works outside their rostered hours, because ‘if overtime is triggered by working over and above your rostered hours, if you exceed one hour’s overtime, it triggers a meal allowance’. Counsel for Woolworths did not elaborate on this issue. A consequence of my finding in the Liability Reasons that overtime is not triggered only by an employee working an additional hour beyond their rostered end time is that a meal allowance entitlement will not be triggered in those circumstances either. The meal allowance is only triggered where there is ‘overtime’, either due to the employee reaching the point where they have worked for longer than the required 152 ordinary hours in a month, or for another reason.

83    Despite not clearly identifying what it was that they disagreed about the parties nevertheless put up competing declarations. The FWO’s was proposed declaration H and Woolworths’ were proposed declaration 31 and declaration 35. Starting with proposed declaration H, it was in these terms:

For the purposes of cl. 20.1(a) of the Retail Award:

a.    Calculation Employee 19 [Leisa Doeblien ID#320504] was entitled to be paid a meal allowance on 6 March 2018, in circumstances where:

i.    she was rostered to work between 5.00am and 2.00pm;

ii.    she in fact worked from 3.57am until 3.39pm being 63 minutes before her rostered start time and 99 minutes after her rostered end time;

iii.    Woolworths has not proved that the hours she worked which were additional to her rostered hours on that day, being a total of 162 minutes, were not reasonably required;

iv.    the time which Calculation Employee 19 worked between 12.57pm and 3.39pm was, accordingly, worked in excess of the relevant 38-hour working week requirement in cl. 28.1(a) of the Retail Award;

v.    her “ordinary time of ending work’ on 6 March 2018 within the meaning of cl. 20.1(a) was 12.57pm; and

vi.    at 1.57pm, she had been required to work more than one hour of overtime after her ordinary time of ending work.

b.    During the fortnightly pay period from 5 to 18 March 2018, Calculation Employee 19 was:

i.    entitled to be paid $17.92 in respect of her entitlement to meal allowance for 6 March 2018 in cl 20.1(a) of the Retail Award; and

ii.    was paid 67% of the above entitlement, being $11.99.

84    Ms Doeblein was rostered to work for nine hours between 5am and 2pm so declaration H(a)(i) may be accepted. This was a period of nine hours but it was not a period of nine ordinary hours. This was because the period from 5am to 6.59am was outside the span of hours and was overtime (assuming it was not worked for reasons of personal convenience). Ms Doeblein was therefore rostered on for seven ordinary hours from 7am to 2pm.

85    However, Ms Doeblein started work at 3.37am and finished work at 3.39pm.

86    For the period from 3.37am to 6.59am, Ms Doeblein is entitled to overtime as she worked outside the span of hours which triggered an entitlement to overtime under cl 29.2(a) (so long as the work was done because it needed to be done and not for reasons related to Ms Doeblein’s personal convenience). However, since this was before she started work it is unrelated to the meal allowance under cl 20.1.

87    Declaration H(a)(iii) appears to suggest that she has an entitlement to overtime for working 99 minutes after her roster end time of 2pm. I do not agree. She is not entitled to overtime merely because she worked outside her rostered hours. To trigger an entitlement to overtime, the FWO must at least show that she has worked in excess of ordinary hours of work, outside the span of hours or outside a roster condition: cl 29.2(a). It must also show that the work was reasonably necessary. Ms Doeblein did not work outside the nine-hour roster condition because she was only rostered on for seven ordinary hours from 7am to 2pm. Even if that roster was altered so that it finished at 3.39pm, she still worked fewer than nine ordinary hours. She is therefore not entitled to overtime on the basis of that roster condition.

88    Declaration H(a)(iv) and (v) suggests that another overtime trigger was enlivened at 12.57pm when she began to work in excess of a 38-hour week. As I have explained above, the FWO’s attempt to apply the roster condition in cl 28.1(a) (which is premised on a 38-hour week) is incorrect because Woolworths operates on a 152-hour roster month under cl 28.1(d). This is a sufficient reason to reject Declaration H(a)(iv). However, it leaves open the possibility that an employee might work overtime hours by reason of working outside the roster condition in cl 28.1(d), that is to say, more than 152 hours in a four-week roster cycle. In the Liability Reasons I indicated at J[536] that for the purposes of cl 20.1 an employee’s ‘ordinary time of ending work’ was when they would have finished work but for the working of the overtime hours. This makes easy sense where the overtime derives from the fact that the employee has been required to work outside the span of hours (the roster condition in cl 27.2) or where the employee has been required to work beyond a nine-hour roster (the roster condition in cl 27.3). In those cases, the work giving rise to the entitlement to overtime will be an event which occurs because some daily limit in a roster condition has been transgressed. These situations are readily reconcilable with the practical issue the meal allowance deals with, namely, that overtime without notice can mean that the employee’s arrangements for (usually) dinner are disrupted. It also fits comfortably into the idea of 24 hours’ notice, which an employer’s failure to give is one of the clause’s enlivening circumstances.

89    However, what is said at J[536] is more difficult where an entitlement to overtime springs not from some occurrence in a single day but instead by total hours worked exceeding the roster conditions in clause 28.1 and, in Woolworths’ case, the 152-hour (i.e. four-week) roster cycle condition in cl 28.1(d). For example, if an employee works 154 hours in a four-week roster by working weeks of 38, 38, 40 and 38 hours respectively, an overtime entitlement will be triggered in the 153rd and 154th hours. Making the simplifying assumption that in the fourth week, the rostered hours are four days of seven hours followed by a fifth day of 10 hours (for a total of 38 hours), it will be seen that the last two rostered hours on the fifth day will be overtime. The literal application of what is said at J[536] would entail that the ordinary time of ending work that day was two hours before the rostered end time.

90    It is difficult to justify an entitlement to a meal allowance in that circumstance. The employee will have worked an entirely normal week in the fourth week, finishing at their rostered time on each of the days. The fact that two hours of additional work done in the preceding week means that the 152-hour roster condition has been surpassed so that the last two hours on the last day in the pay cycle is overtime seems to have no ready connection with the idea of the employee’s ordinary time of ending work. When I wrote J[536] I had in mind the situation described in the ante-preceding paragraph, namely, those where the entitlement to overtime arises because of work done beyond the span of hours or outside a nine-hour day roster condition. I did not have in mind overtime arising from the application of a roster condition such as that in cl 28.1(d). What I was contemplating was the ordinary time at which the employee stopped working. The application of cl 28.1(d) makes necessary therefore that I clarify J[536]. The ordinary time at which an employee stops work will be their rostered time of finishing, unless the employee had flexibly altered their hours of work, in which case it would be the flexibly-altered finishing time. This means that where an employee performs reasonably required overtime (e.g. by reason of exceeding the 152-hour per month roster requirement) after their flexibly-altered finish time, they will be entitled to a meal allowance.

91    In the same vein, I do not accept the FWO’s declaration H(a)(v). Ms Doeblein’s ordinary time of ending work was in that week was 2pm. It is true that she worked for 1 hour and 39 minutes past her ordinary time of ending work. However, for the reasons I have given for H(a)(iii) and H(a)(iv) this did not give rise to an entitlement to overtime. Thus, cl 20.1(a) was not enlivened.

92    As to proposed declaration H(b), I do not understand the debate which is being put forward. As I have concluded above, it is not necessary for the precise underpayment to be calculated.

93    I decline to make proposed declaration H.

94    Woolworth’s proposed declaration 35, which concerned 5 March 2018 (one day before the day involved in the FWO’s declaration H) was in these terms:

In circumstances where, on 5 March 2018, Calculation Employee 19 [Leisa Doeblien ID #320504] was rostered to work from 5am to 2pm but worked from 5am to 3.21pm:

a.    Calculation Employee 19's ordinary time of ending work for the purposes of cl. 20.1(a) of the Retail Award was her rostered end time of 2pm.

b.    the time worked by Calculation Employee 19 between 2pm and 3.21pm did not attract overtime under cl. 29.2(a) of the Retail Award;

c.    Calculation Employee 19 was therefore not entitled to the payment of a meal allowance under cl. 20.1(a) on 5 March 2018.

95    For the reasons explained in relation to declaration H above I would accept declaration 35(a). If the time worked between 2.00pm and 3.21pm did not cause Ms Doeblein to exceed the 152-hour month requirement then I also agree with declarations 35(b) and 35(c). The hours between 5.00am and 6.59am were outside the span of hours so would attract an overtime entitlement but this is irrelevant for the purposes of the meal allowance.

96    Woolworths’ proposed declaration 31 was in these terms:

In circumstances where, on 6 October 2018, Calculation Employee 66 [Vincent Valenzuela ID #959050] was rostered to work from 8am to 5pm, but worked from 6.59am to 6.23pm:

a.    Calculation Employee 66's ordinary time of ending work for the purposes of clause 20.1(a) of the Retail Award was his flexibly altered end time of 3.59pm;

b.    Calculation Employee 66 was authorised under his contract of employment, dated 3 September 2017, to work additional hours that were "reasonably necessary" to perform his duties as Deli Team Support at the Town Hall store;

c.    Calculation Employee 66 was entitled to the payment of overtime from 4.59pm by reason of working outside the rostering condition in cl. 27.3 of the Retail Award;

d.    Calculation 66 was therefore entitled to the payment of a meal allowance under cl. 20.1(a) of the Retail Award.

97    I do not accept this declaration but my disagreement with it is minor and does not affect its bottom line. Nevertheless, it illustrates a point of principle. If the roster was altered because there was work which was reasonably required to be done, then I would accept that the roster was flexibly altered from 8am to 5pm to 7am to 4pm but the single minute before 7am was overtime. That minute was outside the span of hours and hence not part of an ordinary hour. If the roster was changed for reasons of personal convenience this will not be so.

98    The roster condition in cl 27.3 is for nine ordinary hours. After 4.00pm the employee was working outside the nine ordinary hour roster condition and was entitled to overtime. After 5pm he became entitled to the meal allowance. I would not make proposed declaration 31 in the form it is presently in.

C. The form of the declarations

99    There are instances where the parties have sought declarations which are not attached to the position of an identified Calculation Employee. For example, agreed declaration 6 says:

Woolworths bears the legal and evidentiary onus of proving that it reached an agreement with an employee for the purposes of cl 31.2(c) of the Retail Award with an employee or employees.

100    This sort of declaration seems not to relate to any issue. However, were it reframed to refer to ‘Calculation Employees’ rather than ‘employees’ this problem would resolve. Some other declarations that are presently unconnected to employees could be remedied in the same manner (e.g. agreed declaration 11).

Baker v Woolworths

First Issue: Remaining Issues

101    In his reply submissions, Mr Baker expressly identified the issues to be resolved to be only two. These were whether declarations should be made analogously with proposed declarations C and D sought by the FWO against Woolworths. Declaration C is in these terms:

In circumstances where each Calculation Employee’s employment was governed by a contract including a term to the effect that she or he was required to work additional hours as are either reasonably necessary to perform their duties or required by the employer, for the purposes of cl. 29.2(a) of the Retail Award, the obligation to pay overtime arises if a Calculation Employee works:

a)    in excess of their ordinary rostered hours on a day;

b)    outside the span of hours (specified in the table in cl 27.2); and

c)     outside the roster conditions prescribed in cll. 27 and 28.

102    I have explained above that a declaration of the kind in C(a) should not be made but (b) and (c) are acceptable.

103    Declaration D is in these terms:

Where a Calculation Employee worked in excess of the number of their rostered hours on a day, then:

a)     Woolworths bears the burden of proving that the hours worked which were additional to the Calculation Employee’s number of rostered hours were not required by Woolworths; and

b)     where Woolworths fails to discharge that burden, overtime was payable under cl 29.2(a) of the Retail Award for the additional hours worked on that day because, in circumstances where the employee worked in excess of their number of rostered hours for that day, those hours were worked in excess of the relevant 38-hour working week requirement in cl. 28.1(a) of the Retail Award, and therefore were not ordinary hours.

104    For the same reasons, a declaration in these terms should not be made.

Second Issue: The quantification of Mr Baker’s claims

105    Mr Baker acknowledged that the initial trial was not concerned with quantification. However, he proposed that the Court should set a timetable for quantification evidence for Mr Baker and a limited number of class members for the purpose of quantifying their claims. As I indicated at the case management hearing on 20 March 2026, I do not agree. Until appeal proceedings are determined, it cannot be known with any clarity what the approach to quantification should be and embarking upon that topic in advance of any judgment of the Full Court may result in substantial wasted expenditure.

Third Issue: The request for already produced employment records

106    In his written submissions Mr Baker sought a copy of employment records for ‘apparent group members’. At the 20 March 2026 case management hearing I heard argument from the parties about the practicality of this request given issues such as the volume of the employment data held by Woolworths and the utility of that data for Mr Baker and the class given the prospect of an appeal from the liability judgment. At the case management hearing I declined to order production of the records in the form requested by Mr Baker but following the hearing I made orders for the production of a narrower class of employee records in a form which the parties had agreed: order 5 of the orders of 24 March 2026. An additional order (order 5) for production of further data to Mr Baker was made on 29 May 2026 in a further case management hearing. As such at this stage there is no further issue of production of employee records to be determined.

Fourth Issue: The application to extend the claim period

107    By an interlocutory application dated 14 November 2025, Mr Baker sought leave to file a third amended Originating application and a third amended statement of claim. While Woolworths opposed the granting of leave in its written submissions, by the time of the case management hearing on 20 March 2026, Woolworths consented to the proposed orders, which were made on 24 March 2026 (orders 3 and 4). The third amended originating application and third amended statement of claim were subsequently filed, followed by an amended defence filed by Woolworths. As filed, the amended application and statement of claim extend the limit of the claim period for the class from 29 November 2019 to 28 September 2020, which is a shorter extension than was initially advanced in Mr Baker’s interlocutory application. As such there is no further issue about the claim period to be resolved at this stage.

108    In its written submissions, Woolworths indicated that it wished to be heard on the question of the costs of the interlocutory application. That has been overtaken by the agreement of the parties. There will be no order as to costs.

FWO v Coles

109    According to an aide-memoire prepared by the FWO there are five remaining issues between the parties. Although the parties submitted that the resolution of these five issues will permit agreement to be reached on the form of the declarations, they identified also some discrete issues about whether particular proposed declarations should be made. I have addressed those as the ‘sixth issue’ below.

110    Further, it is unclear to me the extent to which the first ‘main area of disagreement’ in FWO v Woolworths (regarding what is needed for a declaration to have a ‘concrete effect’) is also in issue in FWO v Coles. Counsel for Coles submitted at the case management hearing on 20 March 2026 that there was an issue in FWO v Coles regarding whether declarations ‘need to descend in terms to the quantification of particular entitlements’. The FWO’s written submissions on the competing declarations also canvassed issues called ‘the concrete effect concern’, ‘the pari passu concern’, and ‘the underpayment amount concern’. All of those concerns appear to be about ensuring that declarations record an accurate underpayment or contravention by Coles. To the extent that these issues overlap with the ‘concrete effect’ issue in FWO v Woolworths I would decide them the same way: an entitlement may be declared without specifying a contravention or quantifying an underpayment.

First Issue: Whether short break penalty is additive

111    Coles submits that this was never an issue in the Coles regulatory action. The FWO pleaded the short break penalty at §32 of its amended statement of claim (‘ASOC’):

As a matter of construction, if the Breaks between Work Periods Entitlement is not complied with, the rate the employee is entitled to be paid under clause 31.2(b) of the Retail Award is double the rate of pay that would otherwise be payable to the employee, including double any overtime or penalty rates, where applicable (Double the Rate of Pay).

112    Coles’ defence to this was at §32 of its further amended defence (‘FAD’):

It denies paragraph 32 and says further that on its proper construction, in circumstances where any obligation in clause 31.2(b) of the Retail Award is enlivened, it requires only that an employer pay the employee double the minimum hourly rate prescribed by clause 17 of the Retail Award and does not impose a requirement to pay double any overtime or penalty rates, as this would constitute an obligation to pay a “penalty on a penalty”.

113    There was therefore no pleaded issue concerning the additive operation of the short break penalty. It was also not flagged in the list of issues. The relevant issue for the operation of the short break penalty was Issue 27 which was in these terms:

Does the phrase “double the rate of pay they would be entitled to” in cl 31.2(b) of the Retail Award mean an employee is to be paid:

a.    double the minimum hourly rate calculated by reference to clause 17 of the Retail Award; or

b.    double their rate of pay, including double any separately applicable overtime or penalty rates?

114    I therefore accept Coles’ submission that the additive issue is not an issue in the Coles regulatory action. The FWO submitted that the Court had implicitly dealt with the issue. I do not agree. I expressly adverted to the issue at J[301] and said that it was not necessary to form a view about it.

115    On the other hand, in its closing oral submissions Coles did put up for consideration the highest rate approach: transcript of hearing on 20 July 2023, T1334. As I have explained in FWO v Woolworths, the additive and highest rate approach are alternatives where an employee’s hours of work give rise to the short break penalty and another entitlement. In FWO v Woolworths I have concluded that the issue as to which was correct arose because it was apparent there was a dispute about it in the case of Calculation Employee 33. Coles maintained its position in a further round of submissions that there was no issue about this.

116    While it is true that there was no specific issue in the issues list about this, it is apparent from the parties’ declarations that, as in FWO v Woolworths, there is at least one employee whose entitlements are affected by this issue. This is Sample Salary Employee 39, who is the subject of the FWO’s proposed declarations 29-32. As one example, on Monday 25 March 2019, Sample Salaried Employee 39 worked outside the span of hours (having commenced work at 2:00am), and had not received a 12-hour rest period after the completion of work on the previous day (having completed work at 3.26pm on 24 March 2019). In those circumstances, the issue should be resolved the same way as in FWO v Woolworths: only the higher rate penalty (the short break penalty, in this case) would apply to those hours of work.

Second Issue: Hours worked in excess of rostered ordinary hours

117    I have dealt with this issue above in the context of the Woolworths regulatory action. I reject the FWO’s submission that the Liability Reasons implicitly hold that overtime is payable when hours are worked in excess of rostered ordinary hours. I expressly held that the FWO’s submission that any work outside a published roster was ipso facto overtime could not be accepted: J[375], [748].

118    As with the FWO’s claim against Woolworths, there is a concealed issue as to whether Coles’ rosters are one-week rosters under cl 28.1(a) or 152-hour rosters under cl 28.1(d). I have explained above why only one of the roster rules in cl 28.1 applies, namely, the one chosen by the employer (unless agreement to some other course is reached). Whether Coles organises its rosters on a four week or one week basis is a question of fact. Coles’ submissions proceed on the assumption that its roster cycle is four weeks and it appears that at least some of the FWO’s declarations also proceed on this basis. If the FWO disputes this, then I will resolve it if that be necessary.

Third Issue: The enlivenment of the meal allowance entitlement under cl 20.1

119    In the Woolworths regulatory action, it was difficult to identify from the parties’ submissions what their actual disagreement was, and I dealt with the extent of disagreement I could discern from the competing declarations.

120    In FWO v Coles, the FWO now submits that the Liability Reasons show that where an employee flexibly alters their hours of work the finishing time will be the finishing time as flexibly altered. The FWO makes this submission at [26] of their submissions on the remaining issues:

The FWO’s position is that where an employee starts work earlier than their rostered shift time, the time that their ordinary hours are to end is also adjusted by the same amount of time. The number of rostered hours on the day remains the same but are pegged to the employee’s start time. Thus, a later start time means a later finishing time and an earlier start time means an earlier finish time. Where this causes overtime because an employee has worked in excess of their rostered hours, the meal allowance ought to be allocated where an employee works at least one hour of overtime beyond their (adjusted) ordinary finishing time.

121    Coles submits that under the FWO’s approach it was possible that ‘employees would be potentially entitled to meal allowance when, in Coles’ submission, they did not work overtime hours’. I have already explained how this works when dealing with the claim against Woolworths.

Fourth Issue: Assessing consecutive days off under cl 28.11

122    Clause 28.11 says this:

28.11 Consecutive days off

a.    Ordinary hours will be worked so as to provide an employee with two consecutive days off each week or three consecutive days off in a two week period.

b.     This requirement will not apply where the employee requests in writing and the employer agrees to other arrangements, which are to be recorded in the time and wages records. It cannot be made a condition of employment that an employee make such a request.

c.    An employee can terminate the agreement by giving four weeks’ notice to the employer.

123    The issues raised about this clause in the Coles and Woolworths regulatory actions were not the same.

124    In FWO v Woolworths the parties sought a determination of what the word ‘week’ in cl 28.11(a) meant. They did so by Issue 21(a). Woolworths explicitly sought a determination of whether the roster week was fixed by the employer or instead on a Sunday to Monday basis and, depending on the answer to that, whether an employee who had the first and last day of the roster week off had two consecutive days off (in Issue 21(b)).

125    By contrast, in FWO v Coles the issues list disclosed two construction issues relevant to cl 28.11(a):

(a)    did days worked which were wholly allocated to overtime count for the purposes of the clause (Issue 34); and

(b)    how was the overtime calculated when the clause was triggered (Issue 35).

126    Issue 32 is about how to calculate a ‘fortnight’ (see J[443]-[446]) but was about cl 28.10. None of these issues included any issue about the meaning of the word ‘week’ or when the roster week started and none involved any consideration of whether an employee who worked on the first and last days of a roster week had two consecutive days off. Coles made no submission about this issue and neither did the FWO.

127    When dealing with Woolworths’ position I did say at J[459] that cl 28.11(a) was concerned with reality and that the issue was whether there were two consecutive days off in any given seven-day period. This meant I concluded in FWO v Woolworths that cl 28.11(a) would be complied with when there are the requisite consecutive days off in any given seven-day period.

128    The FWO now submits that such a ruling should also be made in FWO v Coles, such that an employee on a Monday to Sunday roster who has Sunday and Monday off (i.e. the two days float across the two rosters) will be in compliance with the clause.

129    Coles now submits that to apply that reasoning in FWO v Woolworths to its position would be procedurally unfair since it was never an issue in its case. Further, it says that there are real practical problems for it in applying that approach. It accepts that it will have to pay the penalty when an employee had Sunday and Monday off but that it is happy to do so to avoid the administrative inconvenience involved in dealing with examining every seven-day period to check compliance with cl 28.11(a), regardless of when its roster weeks start.

130    It seeks declarations 13 and 14:

Clause 28.11 of the Award – overtime days not counted

For the purposes of clause 28.11 of the Award, in the two-week period 9 December 2019 to 22 December 2019, SSE 25 was provided with three consecutive days off in that period because they only worked overtime hours on 16 December 2019, and they did not work on 17 or 18 December 2019.

Clause 28.11 of the Award – meaning of week, and allocation of overtime

For the purposes of clause 28.11 of the Award, in the two week period 25 November 2019 to 8 December 2019:

a.    SSE 42 was not provided with two consecutive days off each week or three consecutive days off in a two week period because they worked ordinary hours on each of the following days 25, 27, 28, 29 and 30 November 2019, and 2, 3, 5, 6, 7 and 8 December 2019;

b.    consequently, overtime was payable for the hours worked by SSE 42 on 6, 7 and 8 December 2019.

131    From a procedural fairness perspective, the position of Coles is compelling. Neither it nor the FWO suggested that the penalty would not be payable if an employee had the first and last day of a roster week off. This position was to Coles’ disadvantage because it results in it having to pay a penalty which, as a matter of law, I do not think it is obliged to pay. But it was entitled to conduct its litigation in this fashion.

132    However, there are difficulties in giving effect to Coles’ position. Whilst I agree that the proposed declarations reflect Coles’ position, I am unable to say they reflect what cl 28.11 requires. Whilst it is true that I was not called on to declare the meaning of cl 28.11 in the Coles action, I was required to do so in the Woolworths actions. For me to make the declarations sought by Coles would involve me making a declaration about the operation of cl 28.11 which, as a matter of the law, I am satisfied is not correct. Assuming that there is power in the Court to make a declaration of law which it knows to be wrong, I would not as a matter of discretion make such a declaration in this case. This means that I decline to make Coles’ proposed declarations.

133    However, there may also be problems in giving effect to the FWO’s declarations. It is not clear to me on which calculation method the FWO’s proposed declaration 62 is premised. However, its submission suggests that the approach which has been taken is the floating one, that is, the conclusion reached in relation to Issue 21 in FWO v Woolworths at J[459] whereby two consecutive days off may float across two different roster weeks or fortnights. If so then the problem is that this approach does not reflect any issue which the parties debated and which, on its face, would deny Coles procedural fairness.

134    More generally, the manner in which the litigation has been conducted means that the issue of how days off at the start and end of a roster week are to be treated for the question of whether they are consecutive days has not been litigated. This entails, as Coles correctly submits, that there was never any debate that two such days were consecutive. However, it also entails that there was never any debate that they were not. The framing of the issue in the Coles proceeding has created a lacuna on this topic.

135    In those circumstances, on the assumption that the FWO’s proposed declaration 62 is structured along the lines indicated in its written submissions, I would decline to make that declaration. This issue was not litigated. I would also decline to make Coles’ declarations for the same reason and because I am not prepared to make a declaration of law which I know to be wrong (even assuming that there is power to do so).

Fifth Issue: Span of hours

136    At trial, there was a debate about the concept of extended ordinary hours. At its heart, was the question of whether the reference to a retailer in cl 27.2(b)(iii) was a reference to a retailer as a whole or to individual stores. I concluded that a retailer meant the whole organisation but that this did not mean that the same retailer could not have different trading hours at different stores.

137    The nature of that debate, given the large number of stores that Coles operates, was diffuse. I sought to make the debate less diffuse by inquiring after judgment was reserved which stores were involved. At J[259] I recorded the outcome of this enterprise:

In FWO v Woolworths the identification of the stores in question permitted me to understand why the debate about extended ordinary hours mattered. In that case, there was a live dispute as to how the ordinary hours for the Macarthur store were to be determined. In this case, the parties did not initially identify why the determination of extended ordinary hours matters. Subsequently I asked the parties to identify an actual store to which Issues 52 and 53 were relevant. I was informed by Coles that the dispute was relevant to the Sandringham store at which one representative employee, Ms Vaia Konstandelis, worked. The Sandringham store’s trading hours were 6 am to 9 pm daily such that extended ordinary hours were engaged on Saturdays and Sundays but not on weekdays.

138    The FWO now submits that cl 27.2 requires consideration of each particular store where a Sample Salaried Employee worked. Thus, according to the FWO, it is for Coles to prove for each Sample Salaried Employee what the trading hours were at the relevant store during the relevant period. This appears to be a reference to s 557C of the Fair Work Act 2009 (Cth) which, where record-keeping is insufficient, puts the onus on the employer to disprove the FWO’s allegations.

139    Coles submits that the FWO pleaded its case such that it alleged that the extended span of hours applied to all of Coles’ stores on all days. It says that it is not open to the FWO now to make an issue about whether the shorter span of hours in cl 27.2(a) applied and since the FWO made no allegation that the shorter span of hours did apply, s 557C can have no application.

140    The FWO submits that resort to the pleadings is artificial.

141    It is necessary to begin with the pleadings, which I do not accept is an artificial approach to civil litigation. In its ASOC, the FWO alleged at §16(b)-(c) that cl 27.2(b)(iii) operated to provide for the extended ordinary hours to 11.00pm on the basis that ‘retailer’ meant each store. Although this is not the construction I have upheld, it is nevertheless functionally identical. The allegation at §16(b) was not concerned with any particular store. In its FAD, Coles admitted that the extended ordinary hours finished at 11pm but denied the FWO’s allegation that the word ‘retailer’ was a reference to an individual store. It is clear therefore that the parties joined issue about the proper construction of cl 27.2(b)(iii) but they did not do so, in these paragraphs, in relation to any of the Sample Salaried Employees.

142    At §63 of the ASOC, the FWO alleged that Coles was required to pay overtime rates where a Salaried Employee worked in a particular store which traded extended hours. Coles denied this at §63 of the FAD and also sought to rely upon its set-off clause. The ASOC defined the concept of the ‘Salaried Employees’. This was done at §3. There the FWO alleged that for the period 1 January 2017 to 31 March 2020 Coles had employed full-time and part-time salaried employees at its supermarkets and it alleged that it had assessed the employment entitlements of 8,767 of the Salaried Employees. The identities of these employees were contained in Schedule A which was available for inspection at the offices of the FWO on request. At §3 of the FAD, Coles admitted that the FWO had conducted an assessment of the entitlements of 8,767 employees but it did not admit that what the FWO had done was correct.

143    At §65 the FWO alleged that the Salaried Employees listed in Schedule O were entitled to be paid a penalty rate for working outside the span of ordinary hours and set out the total payments which they were entitled to be paid. Schedule O includes four tables. These are for Salaried Employees who worked the first 3 hours, those who worked after 3 hours, those who worked Sunday and those who worked on public holidays. These four tables involve far fewer employees than the entire cohort of 8,767 Salaried Employees. Inspection of the four tables shows that there is considerable overlap between them. For example, Mr Bailey appears in all four tables. There are 42 employees involved. Curiously, this is the same number as the number of Sample Salaried employees. Neither party sought to clarify this. In any event, Schedule O does not identify which stores these employees worked in.

144    The pleading does not explicitly say that any of these employees worked in stores where the extended ordinary hours did, or did not, apply. However, Coles submitted that Schedule O was prepared on the basis that the extended hours applied to all stores on all days. In reply, the FWO did not dispute Coles’ interpretation of Schedule O preferring instead to rest on the submission that resort to the pleadings was artificial.

145    I am unable to discern from Schedule O whether it has been prepared on the basis which Coles submits. However, in circumstances where the FWO admits that its ASOC applied the extended hours to all stores, I propose to proceed on the basis that Coles’ submission is correct and this was the FWO’s pleaded case.

146    Paragraph 65 of the ASOC was denied by Coles at §65 of the FAD.

147    The trial did not involve the 8,767 employees. Instead, a subset of them known as the Sample Salaried Employees was selected for trial. Evidence was called from only 15 of them. It was anticipated that the resolution of the position of the Sample Salaried Employees would permit the issues between the parties to be resolved across the larger cohort of 8,767.

148    On 25 July 2022 the Court made this order:

The Sample Salaried Employees (as that term is defined in the orders of Perram J dated 27 April 2022) are the 42 employees listed in Attachment A to these orders, as identified by “ID” number in Schedule A to the Statement of Claim filed on 1 December 2021, with issues of liability and issues as to the principles and methodology applicable to the quantification of any compensation owing to be determined in respect of the 42 Sample Salaried Employees at trial (save for calculating the actual amount of any compensation owing to any Sample Salaried Employee).

149    Consequently, the identification of the entitlements of the 42 Sample Salaried Employees was an issue to be determined at the initial trial. As the 42 Sample Salaried Employees appear also to be the Schedule O employees, the question of their entitlement to overtime as a result of working outside the span of hours was a matter to be tried.

150    The question then becomes who was required to prove what. Once s 557C came into force, its application to the present situation was as follows. First, the FWO had made an allegation in relation to a matter, namely, an allegation that a Sample Salaried Employees were entitled to overtime for working outside the extended span of hours. Secondly, Coles was required by reg 3.33(3) of the Fair Work Regulations 2009 (Cth) to keep a record setting out the details of any penalty rate due to an employee. Thirdly, it did not do so. Fourthly, the effect of s 557C(1) is that the burden was on Coles to disprove the FWO’s allegation. Fifthly, Coles did not disprove the FWO’s allegation that any Sample Salaried Employee who was a Schedule O employee worked outside the extended span of hours. Sixthly, it follows that the FWO’s allegations to that effect are taken to be proven.

151    It is in that context that it is then necessary to return to the FWO’s submission that it was for Coles to prove for all stores what their opening and closing times were so that the question of whether the extended opening hours applied or not can be determined. That submission is largely inconsistent with the way in which the FWO ran its case. Assuming that every Sample Salaried Employee is a Schedule O employee (as appears to be the case), the FWO’s case was that those employees’ entitlement to overtime arose because they worked outside the extended span of hours, and thus that the relevant hours at the stores they worked at were the extended hours. It could have alleged, but did not, that the employees worked outside the shorter span of hours. This would, no doubt, have been a more favourable allegation for the FWO to have made from the point of view of the employees whose cases it is asserting. But, for whatever reason, this is not what the FWO did.

152    The FWO’s present contention is therefore outside the pleadings.

153    The FWO’s answer is that it would be artificial to proceed by reference to the pleadings. It is possible that the parties may, by the manner in which they conduct a trial, cause issues to be tried which do not arise on the pleadings: see Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 296-297 per Dawson J; Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in Liq) [1916] HCA 81; 22 CLR 490 at 517 per Isaacs and Rich JJ.

154    In this case, there was certainly an issue about whether the extended hours applied at the Sandringham store. Regardless of the state of the pleadings, I would accept that the parties made the question of whether the extended ordinary hours applied at that store an issue for the trial. I would therefore also accept that insofar as a Sample Salaried Employee for whom a claim is made for working outside the span of hours worked at the Sandringham store, it is open to the FWO to rely upon the conclusion I reached on that issue at J[212]. That conclusion was that the extended hours only applied on the weekends. To the extent that Schedule O contains any allegation that a Sample Salaried Employee worked during the week outside the span of hours at the Sandringham store, it is open to the FWO now to rely upon the shortened ordinary hours during the week.

155    However, I do not think that the fact that the parties joined issue about the Sandringham store means that, more generally, the FWO should be taken to have conducted a case that the shortened hours applied at all other stores on all days. Apart from any adjustment to Schedule O arising from position of the Sandringham store, it is not possible to say that the case was conducted on a basis which differed from the pleaded case.

156    Since the FWO did not allege in relation to any other store that the shortened ordinary hours applied, s 557C did not impose an obligation on Coles to show that they did not; or, to put it another way, to show that the extended hours did apply.

157    It remains to note [8]-[16] of the FWO’s submissions in reply. In these submissions, the FWO submitted that there was evidence at trial concerning the trading hours of all of Coles’ stores and that, accordingly, the Court should act on that evidence.

158    An assessment of this submission requires an appreciation of the way in which the parties joined issue on the topic of trading hours at trial. As I have mentioned earlier, the FWO’s position was that the trading hours were to be determined on a store-by-store basis. I accepted this contention although not quite for the reasons advanced by the FWO. Coles, on the other hand, submitted that since the word used in the clause was ‘retailer’ a retailer could have only one set of trading hours even if, in the real world, there was diversity of such hours at its various stores. Coles submitted that it was necessary to identify a single set of opening hours which could be seen as applying at all of its stores for practical reasons. I rejected that submission.

159    In aid of its submission, however, Coles sought to demonstrate the difficulties it would have in determining what the trading hours of its own stores was. Part of the way it sought to do this was with the affidavit of Mr Wallace. As Mr Wallace explained at [22] of his affidavit, Coles did not keep historical records of the trading hours for its various stores but instead a record of them was kept which was updated from time to time. Mr Wallace produced a table of the trading hours for all stores as at 24 February 2023. By contrast, the period with which this litigation is concerned runs from 1 January 2017 to 31 March 2020. The purpose of Mr Wallace’s evidence was to show that resort to historical trading hours was impossible and to provide the springboard for a submission that by analysing the trading hours of its stores as at 24 February 2023 it might be possible to summon up the single set of opening times that Coles should be taken to have had for all of its stores during the period 1 January 2017 to 31 March 2020.

160    Mr Wallace’s table of trading hours was not advanced as part of a case by Coles that those times should be taken to be the trading hours of its stores in the relevant period because Coles ran no such case. It had no need to run such a case because the FWO’s pleaded case was that the extended hours applied at all stores.

161    In its submissions, the FWO seized on Mr Wallace’s spreadsheet as evidence of the opening hours of Coles’ stores during the relevant period. This appeared at [377] of the FWO’s closing submissions at trial where the FWO said:

The factual basis for engagement of the exception is covered by Mr Wallace. The FWO does not dispute the opening hours of the stores referred to by Mr Wallace.

162    Since, however, Mr Wallace did not give evidence about what the trading hours of Coles’ various stores was during the relevant period, his evidence did not establish what those trading hours were. The fact that the FWO did not dispute this is therefore irrelevant.

163    In the Liability Reasons I concluded that the FWO’s contention that trading hours was to be determined store-by-store was correct. However, as I have noted above, the FWO’s pleaded case was that the extended hours applied at all stores. The question which now arises is whether by its reference to Mr Wallace’s affidavit at [377], the FWO actually conducted a case on trading hours with which I failed to deal.

164    The short answer to this is that Mr Wallace’s evidence was not evidence of the trading hours during the relevant period. As Mr Wallace also explained, the opening hours varied widely both by reference to State laws and also to practical trading circumstances. It was that variability which formed the basis of Coles’ submission that the Court should determine that there was but a single set of trading hours for the entire company.

165    I do not accept that Mr Wallace’s evidence was any evidence of what the trading hours for any particular store were during the relevant period. It does not purport to do so and it is not capable of doing so having regard to circumstances in which trading hours can and do fluctuate.

166    On the present debate, the FWO submitted that the Court should accept the evidence because it was the best evidence available. I do not accept that submission. It is not any kind of evidence.

167    In those circumstances, I do not accept that the FWO and Coles conducted the litigation on a different basis to that which the FWO pleaded. It pleaded that the extended hours applied at all stores. Neither party attempted to prove anything about the trading hours of stores (apart from Sandringham) during the relevant time. Thus, there was no departure from the pleadings. Even if they were, however, I do not accept that Mr Wallace’s evidence establishes the trading hours during the relevant period.

168    The position then is:

(a)    If there are one or more Sample Salaried Employees who are also Schedule O employees who worked at the Sandringham store outside the shortened span of hours during the week, then it is open to the FWO to claim overtime for that employee on the basis of the shortened span of hours notwithstanding that Schedule O is premised on the application of the extended hours. If such an employee or employees exist, an appropriate declaration should be made.

(b)    In relation to all other Sample Salaried Employees, the appropriate relief will reflect the fact that the FWO’s case alleged that the extended hours applied at all stores on all days. There is no occasion in the case of these employees to consider whether the extended hours applied at any particular store at any particular time. The FWO alleged that the extended hours applied to all stores on all days and it is to be confined to the case which it ran.

Sixth Issue: Some declarations sought by the FWO

169    The FWO appears to have sought declarations in relation to a number of entitlements.

170    The first is the minimum wages entitlement. There was no issue advanced about this in the parties’ list of issues at trial and the Liability Reasons reach no conclusions about it. I decline to grant declaratory relief about it.

171    The second is the weekday evening penalty entitlement. This was Issue 23 at trial and it was agreed to be a Tier 3 issue. It concerns the actual entitlement of the Sample Salaried Employees and it is thus concerned only with quantification. No declaratory relief should be granted and the issue should be revisited at the quantum trial.

172    The third is the Saturday penalty entitlement. This was Issue 24 at trial is in the same situation as the weekday evening penalty entitlement. It is concerned only with quantification and should not be dealt with now.

173    The fourth is the Sunday penalty entitlement which was Issue 25 at trial. The same applies again.

174    The fifth is the special clothing allowance which was Issue 59. The same applies again.

175    The sixth is the Broken Hill Allowance. There was no listed issue about this at the hearing. The only conclusion I reached at J[114] was that it was not a penalty rate or loading for the purposes of reg 3.34. Whether a Sample Salaried Employee is entitled to the allowance goes only to quantification. I decline to grant declaratory relief.

Seventh Issue: B.6 and B.7

176    The seventh issue concerns sections B.6 (‘declarations concerning record keeping’) and B.7 (‘requests in writing’) in the FWO’s submissions on the competing declarations. I do not understand what they mean and therefore will not be resolving them.

Pabalan v Coles

First Issue: Common Issues

177    This concerns the answers to common questions which I am told are agreed. The process of giving those answers formally should occur at the same time that declaratory relief is dealt with.

Second Issue: Declaratory relief in general

178    This concerns the appropriate declaratory relief. Generally, Ms Pabalan suggests that the outcome of those debates may be affected by the outcome of the disputes between the FWO and Coles I have dealt with above. She suggests that these issues might be postponed until the answers to those questions are known. I agree with this proposal.

Third Issue: The Meal Allowance

179    There is then an issue about the meal allowance. The factual circumstances that give rise to the question concerns situations where Ms Pabalan was regularly working more than one hour of overtime after her ordinary time of ending work. The meal allowance in cl 20.1 will be triggered if Ms Pabalan was not given notice of this. Coles submits that Ms Pabalan will have received notice under cl 20.1 if:

(a)    she was responsible for setting her own rosters and her roster was set more than 24 hours before any day on which she worked more than one hour of overtime, and that roster provided for the hour of overtime; or

(b)    she was aware based on her usual pattern of work that she would be likely to be required to work more than one hour of overtime.

180    Coles points out that the purpose of the meal allowance is to allow an employee to buy a meal when they are unexpectedly required to work overtime. Its basic point is that in neither of the above situations can it be said that the overtime is unexpected. This carries with it the implication that in circumstances where the overtime is foreseen, the employee may arrange their own meal thereby rendering redundant any need for a meal allowance.

181    Ms Pabalan’s response to this observation was that if she had flexibly altered her hours of work for her own convenience then the hours worked would not be overtime with the corollary that the meal allowance would not fall due. I agree with this submission. Next, she submitted that where she was required to work overtime due to operational reasons then the meal allowance would be due unless notice was given under cl 20.1. This first part of this involves the idea that where additional work is done for operational reasons then overtime will be due. So much may be accepted. The second part involves the assertion that, in that situation, notice needs to be given. She also submits that the fact that she was aware that she regularly worked overtime should not be substituted for the requirement to give notice.

182    However, Coles’ submission does not deny that notice needs to be given in this situation. Its submission is that in the circumstances set out in (a) and (b) above, notice has been given by reason of those circumstances. Ms Pabalan’s submission does not meet that submission about the facts.

183    I would accept that in the situation in (a), notice is given under cl 20.1. In such a case, Ms Pabalan will have been aware more than 24 hours before doing the overtime that she was going to be working overtime. I accept that in that circumstance, notice was given which would have the effect that the meal allowance would not be due.

184    I do not accept, however, that this is so in the factual scenario in (b). It may be assumed that (b) is not meant to encompass (a). Thus, the situation under consideration is one where Ms Pabalan is not rostered on for overtime but, for whatever reason, does overtime on a regular basis. The difficulty lies in identifying where a repeated occurrence of overtime becomes sufficient to entail that notice has been given. For example, if over a 4-week period Ms Pabalan did 1.5 hours of unrostered overtime each day over 13 days would this suffice? If it would, at what number of days would it cease to suffice? The fact that this question has no ready answer makes it difficult to see that such an indistinct occurrence could constitute ‘notice’. Whilst notice is not a completely clear concept, it is sufficiently definitive to require the occurrence of an event. I do not think that a pattern of worked hours of overtime is sufficiently definitive to constitute a notice. For those reasons, I do not accept that the factual scenario in (b) can constitute notice for the purpose of cl 20.1.

185    There was a minor debate as to whether the proposed declaration 22 should include the words ‘required to work’. Ms Pabalan accepts that she was required to work and that this is implicit in the words ‘was overtime under clause 29.2(a) of the Award’. I agree that ‘was required to work’ is an inevitable inference from the fact that overtime was due under clause 29.2(a). However, I see no problem in teasing that out in the declaration since both parties agree that it is the case.

186    Ms Pabalan also asks that I resolve an issue of whether ‘ordinary time of ending work’ in cl 20.1 means the rostered end time of work on the particular day or her average ending time calculated across a month. She submits that the averaging approach is preferable ‘to align with Coles’ pay patterns and to accommodate fluctuation of working patterns over time’. Coles submits that such a case was not advanced at trial and it is unclear how the average end time would be calculated and how it would account for differences in an employee’s rostered or actual end times across shifts.

187    I agree with Coles. Ms Pabalan advanced no case regarding ‘average end time’ at trial and cannot now do so. As discussed above, the meaning of ‘ordinary time of ending work’ will be the rostered time of finishing, unless the finish time was flexibly altered, in which case it would be the flexibly altered finish time. However, I note that Ms Pabalan’s submissions on this issue seem to proceed on the basis (consistent with the FWO’s position) that any work performed beyond the employee’s ordinary time of ending work is overtime, which as I have said above is not correct.

Fourth Issue: Dismissal of Ms Pabalan’s case prior to 15 September 2017

188    At trial, I accepted the broad thrust of Ms Pabalan’s case that she worked longer hours than her rosters suggested. However, I did not accept that her evidence provided a sufficient basis for determining how much such work she did: J[803]. At trial, Ms Pabalan submitted that rather than rely upon her evidence the Court might utilise a methodology and I accepted, at least in principle, that this would be permissible: J[804]. However, as I recorded at J[805] I was not told what the methodology was and, indeed, I was told that I did not need to engage with it since it was provided more for the information of Coles. Having noted what some of the inputs into the methodology were, I then concluded that since I did not know what the methodology was, I was not able to accept it: J[808]. In the event that I was wrong that the methodology was not being advanced I also concluded that I did not think that the available data was sufficient to allow a conclusion that Coles had breached a civil penalty provision, having regard to s 140 of the Evidence Act 1995 (Cth): J[808]. In that circumstance, too, I rejected the methodology.

189    I then turned to the period before s 557C came into force on 15 September 2017. Based on the foregoing conclusion, I reached the view that, apart from a clothing allowance, her evidence was insufficient to quantify her claim: J[812].

190    Coles now submits that I should dismiss Ms Pabalan’s claim insofar as it relates to the period before 15 September 2017 (except for the clothing allowance).

191    Ms Pabalan submits that her claim for this period should only be dismissed insofar as it relates to unrecorded hours worked in that period. She says that there is uncontradicted evidence that she had recorded hours during the period and that it was clear in context that J[812] was concerned with her efforts to provide a methodology for determining her hours where there were no records. I was not given any reference to what this uncontradicted evidence was.

192    The only evidence on this issue drawn to my attention at trial was the inputs into the methodology. These were Ms Pabalan’s rosters, her clocking data and the location data from her phone records: J[806]. But there was no submission advanced at trial that I should determine her hours of work myself from those materials. Rather, the submission was that a methodology using those materials could do so. Since I was not asked to form a view about the methodology, I rejected it.

193    Ms Pabalan’s submission therefore is that I should utilise either:

(a)    Uncontradicted evidence which has not been identified; or

(b)    The three sets of materials referred to at J[806] if that is what Ms Pabalan intended by her reference to the uncontradicted evidence.

194    If the submission is that I should use (a), then I reject it because I do not know what the evidence is.

195    If the submission is (b), I reject it because no such case was advanced at trial. In any event, it is entirely unclear how I would embark on this process.

196    Ms Pabalan took the forensic decision to make good her case on hours worked on the basis of a particular methodology which I did not accept. I do not think it is now open to her to put an alternative case after judgment.

197    Coles submits that J[812] is clear. Whilst J[812] has to be read in light of the context which precedes it, I agree with Coles. Ms Pabalan’s case prior to 15 September 2017 should be dismissed save insofar as it relates to the clothing allowance.

Fifth Issue: Quantification

198    The fifth issue is quantification. As in Baker, I indicated at the case management hearing on 20 March 2026 that I do not think that this should begin until the conclusion of appellate proceedings.

Sixth Issue: Production of employment records

199    The sixth issue was the production of employment records. As in Baker, this is no longer an issue. Following the 20 March 2026 case management hearing the parties conferred and agreed that Coles would produce a more narrow list of employment documents than originally sought. I made a consent order for production of those documents on 8 May 2026.

Seventh Issue: Amendment Application

200    By an interlocutory application dated 15 November 2025, Ms Pabalan sought leave to file a fifth originating application and a fifth statement of claim. The effect of the proposed amendments would have been to extend the claim period which runs from 19 May 2014 to 15 May 2019 so that it runs from 19 May 2014 to 31 October 2025. Coles opposed this application. However, following the case management hearing on 20 March 2026, further conferral between the parties produced agreement on a different form of the amended documents. The fifth originating application and fifth statement of claim were filed on 21 April 2026, followed by an amended defence on 5 May 2026, following leave granted by orders 1 and 2 of the order of 17 April 2024. As in Baker, the amended application extends the claim period to 28 September 2020.

Orders

201    Leaving aside the position in FWO v Woolworths, these reasons should be sufficient to permit the parties now to formulate the appropriate declaratory relief. In the case of Woolworths, work on the declaratory relief may proceed save in those cases where agreements are concerned. It is not appropriate to make any orders about how the parties go about reaching agreement on the declaratory relief. What I will do, however, is to stand the matter over for five weeks to Thursday 1 October 2026 to permit that consultation to occur. Any of the matters may be relisted on 3 days’ notice in the event that something unforeseeable occurs.

202    I will make the following orders:

FWO v Woolworths

(1)    Woolworths file and serve a submission of up to 15 pages in length (which is not to contain any tables or to attach any documents) within 14 days of these reasons dealing with the following topics:

(a)    where it says the evidence is located which proves that any of the Calculation Employees made agreements for the purposes of cl 31.2 of the Award (limited to five pages);

(b)    where it says the evidence is located which proves that any of the Calculation Employees did overtime hours which were not reasonably required (limited to five pages); and

(c)    where it says the evidence is located which proves that any of the Calculation Employees made an agreement within the meaning of cll 31.2(b), 29.3 and 28.14(f)(ii) (limited to five pages).

(2)    The FWO file any response limited to 15 pages in the same form within a further 14 days.

(3)    Save for those affected by orders 1 and 2, the parties confer with a view to formulating the appropriate declarations within 21 days.

(4)    The matter be listed for case management on Thursday 1 October 2026.

(5)    The matter may be relisted on 3 days’ notice.

Baker v Woolworths

(1)    The matter be listed for case management on Thursday 1 October 2026.

(2)    The matter may be relisted on 3 days’ notice.

FWO v Coles

(1)    The matter be listed for case management on Thursday 1 October 2026.

(2)    The parties confer with a view to formulating the appropriate declarations within 21 days.

(3)    The matter may be relisted on 3 days’ notice.

Pabalan v Coles

(1)    The matter be listed for case management on Thursday 1 October 2026.

(2)    The parties confer with a view to formulating the appropriate declarations within 21 days.

(3)    The matter may be relisted on 3 days’ notice.

Associate:

Dated:    27 August 2026