Federal Court provides clarity in competing proceedings between class actions and employee union proceedings

12 October 2023

Recent developments in the class action landscape have seen increased filings in underpayment and/or rest break class actions filed on behalf of employees in a wide range of industries. Some of these class actions involve rival proceedings commenced by a conventional plaintiff class on the one hand, and a trade union on the other.

In Elliott-Carde v McDonald’s Australia Limited (Stay Application) [2023] FCA 1210 the Federal Court was asked to consider a stay application brought by the Shop, Distributive and Allied Employees Association (SDA) against a rival class action. The group members, comprising 300,000 to 350,000 McDonalds workers, were largely common to both sets of proceedings, which concerned rest break allowances.

The SDA commenced its proceedings second in time and proposed using test cases chosen from eight McDonalds stores, while the first in time Class Action proposed the use of common questions together with the individual claims of lead applicants.

Lee J dismissed the stay application, principally on the basis that the SDA had not been sufficiently prompt in advancing its claim. However, his Honour's judgment is important reading for practitioners in this space, including because it explores issues of competing return models between a funded action and an action run by a union with a traditional role of protecting worker rights, and the resolution of competing forensic approaches between class actions.

Robert Dick SC appeared for the Respondents on instructions from Ashurst

Link to judgment