The union’s cases, including two filed in the past week, now encompass 37 McDonald’s restaurants across five states including the Northern Territory.

In the first case management hearing since the eleven proceedings against McDonalds Australia and various franchisees was joined with a class action brought by Shine Lawyers, Federal Court Justice Mordy Bromberg said the “huge amount of litigation” posed practical problems in terms of costs to potential litigants and the resources of the court.

“I appreciate that your client has every right, and it might be said an obligation to make its claims when properly informed of the necessary facts which underly those claims … but consequences may well be that existing proceedings really don’t move forward until all proceedings are on the table,” he said.

The class action against the fast food giant on behalf of former employee Jade Elliott-Carde and other workers like him, alleges workers were denied 10-minute rest breaks between December 2015 and December 2021. Counsel for the group members Ruth Higgins SC said Wednesday the action “was apt to pick up hundreds of thousands of current and former employees”.

With the union and the class action applicants also set to amend their pleadings, McDonald’s and its franchisees griped with the shifting proceedings today. Justice Bromberg himself called the overlapping actions “clear as mud.”

Barrister for McDonald’s Jeremy Kirk SC criticised the SDA for bringing its cases “in dribs and drabs”, while barrister for the franchisees Alex Manos petitioned Justice Bromberg for “some stability in proceedings”.

“We need a bit of certainly as to which franchisees are the subject of these claims,” he said.

Kirk indicated that McDonald’s defence to the claims, which is yet to be filed, would broadly mirror that of its franchisees, who have argued its employees took their entitled breaks, but sometimes in a “non-continuous manner” – a defence labelled “risible” by the union’s barrister Mark Irving QC.

In a defence filed last year, franchisee G & J Olle Pty Ltd said staff had been given their required 10-minute paid drink and rest breaks, and claimed the breaks did not have to be taken in one block of time under the McDonald’s Australia enterprise agreement 2013 and the Fast Food Industry Award 2010.

“[G & J Olle] says that on a proper interpretation of the phrase ’10 minute rest break’, the break could be taken non-continuously; that is, over a series of breaks adding up to at least 10 minutes,” the franchisee said.

The court heard McDonald’s would also argue that employees had the opportunity to take the breaks in part or in full, but chose not to.

“Whether or not that meets the requirement for being given a break may well be a matter of some contention,” Irving said.

Parties looking for a way forward

The court heard there was considerable overlap between the SDA actions and the class action, with all parties “in vigorous agreement” as to the need for conferral to determine common questions, including issues of fact such as what kinds of breaks employees actually took at the various restaurants.

But much remains to be determined in the multi-party proceedings.

Kirk told the court the SDA and the class action applicants were considering amendments to their actions. The union was said to be considering amended pleadings touching on the franchisee provisions contained in section 558B of the Fair Work Act, which are relied on in the class action; while the class action was said to be considering claims of accessorial liability against McDonald’s, which would mirror the union’s claims.

Higgins also foreshadowed a possible application to stay the SDA proceedings following conferral, so that common questions in the class action may be determined first.

Pending proposed orders by McDonald’s, Justice Bromberg accepted Kirk’s calls for the union and the class action applicants to file and serve any proposed amended statements of claim within four weeks, with defences by McDonald’s and a “conferral of all parties” to follow.

Lawsuits on the menu for fast food giant

The union filed proceedings against McDonald’s and several franchisees earlier this year, claiming McDonald’s failed to give hundreds of employees in NSW, Queensland, Western Australia and Victoria the paid 10-minute drink breaks they were entitled to under the McDonald’s Australia enterprise agreement 2013.

The union claims that between January 21, 2016 and August 1, 2020, the franchisors contravened the enterprise agreement and the Fair Work Act by not giving employees who worked shifts longer than four hours a paid drink break or employees who worked over nine hours two drink breaks. Later amendments also alleged failures to keep accurate employee records that included the 10-minute breaks.

On Wednesday the union also alleged that while the issue of the non-provision of paid breaks had “largely gone away” for McDonald’s crew members by 2021 as a result of a changeover from an enterprise agreement to the relevant industry award in 2020, the issue remained a live one for managers, who no longer receive paid breaks at all.

Most of the union’s cases target the franchisees directly, and name franchisor McDonald’s Australia as an accessory.

Franchisee Delbridge Investments is also facing an adverse action claim brought by the SDA last year, over what Irving said “might be broadly described as anti-union conduct” at a McDonald’s restaurant in Murray Bridge, South Australia.

In a statement released last year, the SDA alleged that workers at the Murray Bridge restaurant were “coerced and intimidated” into converting to casual employment, forced to resign their union memberships, and “subjected to physical, verbal and psychological abuse” in retaliation for involvement with the union.

“Senior officers said to employees who were seeking to become managers, if you want to get promoted you have to resign from the union,” Irving said.

The SDA is represented by Mark Irving QC, instructed by Lieschke & Wetherill Lawyers. McDonald’s is represented by Jeremy Kirk SC, instructed by Ashurst. The franchisees are represented by Alex Manos, instructed by Colin Biggers & Paisley. The class action group is represented by Ruth Higgins SC, instructed by Shine Lawyers.

The SDA’s cases are Shop, Distributive and Allied Employees Association v McDonald’s Australia and Shop Distributive and Allied Employees Association v G & J Olle Pty Ltd. The class action is Jade Elliott-Carde & Anor v McDonald’s Australia Limited.

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