Elliott-Carde v McDonald's Australia Limited
Citation: [2023] FCAFC 162
At a glance
- Employees affected
- 300000
What happened
Jade Elliott-Carde and Darcy Dunlop brought a class action against McDonald's Australia Limited on behalf of employees (and employees of franchisees) alleging that workers were not provided with ten-minute rest breaks in contravention of applicable industrial instruments (a 2013 enterprise agreement and a 2010 award) and provisions of the Fair Work Act ss 45 and 50. The class action involves an estimated 300,000 to 350,000 workers, many of whom are minors. Concurrent proceedings were brought by the Shop, Distributive and Allied Employees' Association against McDonald's and multiple franchisees.
What was decided
The Full Court answered a reserved question: the Federal Court has statutory power under s.33V of the Federal Court of Australia Act 1976 (Cth) to make a settlement common fund order distributing settlement money on a class basis. The court confirmed that representatives can bring proceedings under Part IVA of the FCA Act for contraventions of civil remedy provisions of the Fair Work Act. The court dismissed anterior jurisdictional challenges and confirmed that representative proceedings under Part IVA are an effective vehicle for determining claims affecting large numbers of workers.
What it means for employers
Franchisors and employers should ensure all employees receive award and agreement entitlements including rest breaks. Class action proceedings can be brought on behalf of large groups of workers, potentially exposing franchisors and head companies to substantial liability. Settlement in representative proceedings must be approved by the court and commonly fund orders will be considered to fairly distribute benefits.
What it means for employees
Employees can bring representative class action proceedings for breaches of award and enterprise agreement entitlements. Where large groups are affected, class actions may be a more effective remedy than individual claims. Settlement funds can be distributed according to court-approved common fund orders, allowing recovery even where individual proof would be difficult.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2023/2023fcafc0162Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →