On 13 April 2021 Justice Murphy refused to strike out a further amended statement of claim in a class action on the basis that it did not disclose a cause of action: Gall v Domino’s Pizza Enterprises Limited No. 2  FCA 345.
Apart from making a claim for underpayment of applicable rates under the Fast Food Industry Award 2010 the class action also sought payment of damages for contravention of section 18 of the Australian Consumer Law.
The contravention is said to arise from representations and conduct by Domino’s directed to its franchise operators as to the pay rates and terms and conditions of employment applicable to the franchise operators’ employees.
The applicant alleges for himself and the other class members that their loss and damage was the underpayment of wages and entitlements that also led to a loss of opportunity.
Domino’s argued that the Fair Work Act 2009 provides a “comprehensive code” for the enforcement and recovery of entitlements under an award and no claim was available to the applicant and the class members under the ACL.
Justice Murphy acknowledged the “force” of this argument but said it was also reasonably arguable that a claim was available under the ACL.
It will be a case of watch this space on the further conduct of the class action.
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