Rogers v McDonald’s Australia Ltd [2026] FCA 542

Rogers v McDonald’s Australia Ltd [2026] FCA 542 is a procedural Federal Court decision in a representative employment proceeding. It is not the final determination of whether any employer underpaid staff. Instead, Lee J was deciding how the initial trial should be structured and what issues it should resolve.

The underlying allegations concern managers at corporate-owned and franchisee-owned McDonald’s restaurants who were said to have performed work before rostered start times and or after rostered finish times without being paid. The Court described the case as a class action seeking compensation on behalf of current and former McDonald’s employees who were managers between 6 December 2017 and 3 February 2020.

The practical significance of the ruling is that the Court set a broader initial trial than some respondents wanted. It held that the first trial should determine liability on the claims connected with the sample employees and sample employers identified for that stage, together with claims against McDonald’s Australia and common questions to be specified later. In substance, the judge concluded that the initial trial should be a trial of the claims of all those who were coming to give evidence. The Court also decided that the issue of serious contravention under s 557A of the Fair Work Act should be considered at that initial trial if contraventions were established.

The proceeding had been on foot since 2023 and the judge described its procedural history as somewhat chequered. By the hearing on 24 April 2026, the applicants had finally filed the affidavits they proposed to rely on in chief. That filing sharpened a problem that had been lingering in the case: what exactly was the initial trial supposed to decide?

The applicants had filed affidavits from seven deponents. Three were the applicants themselves: Rhys Rogers, Bodie Spark and Chelsea Jessop. The other four were Leah Cathcart, Jacob Stewart, Kieran Giumelli and Mikayla Martin-Coats. The judgment identifies the broad spread of claims among them. Ms Cathcart had a claim against McDonald’s Australia. Mr Giumelli and Ms Martin-Coats had claims against Pollburg Pty Ltd, a franchisee. Mr Stewart had claims against four franchisee respondents that had not previously taken an active role in the proceeding.

Those four affected franchisees were represented by the same solicitors as Pollburg and operated the Mayfield East and Mayfield Main, Kempsey South, Kempsey Main, and Labrador McDonald’s restaurants. This mattered because broadening the initial trial would mean those franchisees needed to decide how involved they wanted to be at the hearing.

The Court explained that this case was more complicated than many class actions because there was no allegation of contravening conduct that could be determined on a truly common basis. In other words, the case could not be resolved simply by answering one universal question for everyone. Even so, the Court said there were substantial common issues of fact and law that had to be resolved before deciding whether McDonald’s Australia or any franchisee had engaged in contravening conduct. That tension between individualised claims and common issues drove the procedural debate.

Lee J identified two questions as the focus of submissions. The first was the scope of the initial trial. Should it be confined to the claims of the applicants only, or should it also include the claims of all the identified group members who had filed affidavits and were going to give evidence? The second was whether the initial trial should also deal with the issue of serious contravention within the meaning of s 557A of the Fair Work Act.

These were not technical side issues. In a representative proceeding, the shape of the first trial can affect cost, timing, evidence, settlement dynamics and the practical usefulness of the first judgment. A narrow trial may be easier to manage, but it may leave too much unresolved. A broader trial may be more demanding, but it may produce findings that help move the whole proceeding forward.

The Court had to balance those competing considerations. It also had to consider the position of franchisee respondents who had not been taking an active role. If the initial trial expanded to include claims involving them, they would need to decide whether to remain passive or participate more actively, knowing that findings could still affect them.

The judgment also records that the applicants were seeking to establish aspects of a broader system. The Court did not need to set out the details of that alleged system for the purpose of this ruling, but it accepted that the evidence of the deponents was relied on to prove aspects of the common issues in the representative claim. That point became central to the decision on trial scope.

On the first issue, Lee J said the question was finely balanced, but ultimately concluded that the initial trial ought to be a trial of the claims of all those who were coming along to give evidence. The most important reason was practical and evidentiary. The Court said it would be necessary to hear their evidence and make findings based on their testimony in any event, because their evidence was relied on to prove aspects of the common issues in the representative applicant’s claim.

The Court also tested whether a narrower trial would produce a meaningful time saving for the respondents. McDonald’s Australia suggested the difference was essentially non-existent. Pollburg suggested an additional four months if the broader course were adopted. The judge said that if a narrower trial would have allowed the respondents’ evidence to be put on significantly quicker, that would have been a powerful factor in favour of a narrower trial. But on the material before the Court, that was not the case.

On the second issue, the Court decided that the serious contravention question should also be dealt with at the initial trial. The judgment records McDonald’s Australia’s submission that the previous version of s 557A required, first, a knowing contravention and, secondly, conduct that was part of a systemic pattern of conduct relating to one or more other persons. The Court also noted that s 557A(2), as enacted, said the Court may have regard to factors including the number of contraventions, the period over which they occurred and the number of other persons affected.

Lee J accepted that there was some force in the submission that an individualised initial trial might not expose the full range of matters relevant to characterising a contravention as serious. But the judge ultimately held that, if a contravention were established on the evidence adduced at the initial trial, the Court should decide whether the two requirements of s 557A(1) were made out or not. The applicants had made that forensic choice, and the Court accepted their position that the initial trial would be of far less utility if the serious contravention issue were left unresolved.

The judge also made clear that this did not prevent the respondents from later arguing that the evidence adduced at the initial trial provided an infirm basis for characterising any proven contraventions as serious contraventions. That evaluation was left for another day.

The formal orders made on 4 May 2026 are important because they state the scope of the initial trial with more precision. Order 5 provided that the initial trial would determine liability on all claims for relief relating to the employees listed in Annexure A to the orders, described as sample employees, in respect of their employers listed in Annexure A, described as sample employers, and in respect of the first respondent, including claims under ss 557A and 558B of the Fair Work Act. The initial trial would also determine the common questions to be specified at the next case management hearing on 31 July 2026.

That means the first trial was not framed simply as a hearing about the three named applicants. Nor was it framed as a final hearing of every possible group member claim in the proceeding. Instead, the Court adopted a sample-based structure for the initial trial, while making clear in the reasons that it should include the claims of all those who were going to give evidence.

The available material does not reproduce Annexure A itself, so this page cannot list the sample employees and sample employers by name beyond the deponents and entities identified in the reasons. What can be said confidently is that the Court used Annexure A to define the employee-employer combinations to be determined at the initial trial, together with claims against McDonald’s Australia and the common questions to be settled at the next hearing.

The orders also required the applicants to file and serve points of claim by 26 June 2026 in respect of Leah Cathcart, Jacob Stewart, Kieran Giumelli and Mikayla Martin-Coats. That procedural step reinforces that the initial trial was being structured around identified sample claims rather than left at a high level of generality.

One of the most commercially useful parts of the judgment is the Court’s discussion of franchisee respondents who had not been taking an active role. Lee J said the Court had long been conscious that it would be contrary to the case management objectives in Pt VB of the Federal Court of Australia Act to require respondents against whom claims were not being advanced at the initial trial to take an active part before that trial unless they wanted to be involved.

But once the trial broadened, the affected franchisees connected with Mr Stewart would need to make decisions about their level of involvement. The judge referred to an earlier order made on 24 April 2025 requiring the solicitors for the franchisees to serve a form of notice on them. Although it served a different purpose, the judge said it was in some respects akin to an opt-out notice. The point was to ensure those franchisees understood the practical reality that, even if they did not take active steps, the Court would be making legal and factual findings that would bind them.

The judgment is careful about the legal basis for that consequence. The affected franchisees would not be bound through s 33ZB of the Federal Court of Australia Act, which concerns non-party group members. Instead, they could be bound at law and in equity under ordinary principles of preclusion, because they were already parties to the proceeding. The Court did not think it necessary to require another notice to be sent. The franchisees were legally represented and would no doubt be advised that specific orders might be sought against them at the hearing, including findings of contravening conduct and consequential relief such as compensation.

For franchisees, subsidiaries and related entities, this is a practical warning. Being quiet in litigation is not the same as being unaffected by it. If you are a party, early findings on common issues or sample claims may shape or limit your position later.

The orders made on 4 May 2026 vacated orders made on 24 April 2026 and replaced them with a structured conferral process. The parties were ordered to confer in person from 10:00 am on 27 July 2026 and continue until 30 July 2026 unless earlier concluded, with the assistance of a facilitator to be appointed. The purpose of that conferral was to try to produce four key outputs: a statement of agreed and non-contentious facts, a document identifying factual and legal issues for determination, a list of common questions to be determined at the initial trial, and agreed or competing draft orders for interlocutory steps up to trial, including discovery.

The parties participating in the conferral were required to do so in good faith and consistently with their obligations under Pt VB of the Federal Court of Australia Act, including by helping narrow issues and reduce the scope of documentary tender. By 5:00 pm on 30 July 2026, the parties were to provide the agreed documents to the judge’s associate, or if agreement could not be reached, a marked-up draft showing the disagreements together with brief submissions explaining them.

A case management hearing was then listed for 31 July 2026. The judge said the parties should expect an extensive hearing at which all outstanding matters would be resolved and orders made to carry the proceeding through to the commencement of the initial trial.

The judgment also addresses discovery. Lee J noted there had been a degree of doomsaying about the time needed for the respondents to file evidence and complete standard discovery under r 20.14 of the Federal Court Rules. McDonald’s Australia had said it would take a further six months to complete standard discovery. The judge expressed frustration at that estimate, given how long the proceeding had already been on foot and given that standard discovery is tempered by the requirement to undertake only reasonable searches for directly relevant documents meeting specified criteria. The Court expected evidence preparation and discovery to continue immediately.

The judge also observed that many facts might not be formally agreed by admission under s 191 of the Evidence Act, but could still be treated as essentially non-contentious and not the subject of contradictory evidence. That is why the Court considered the conferral process, assisted by an experienced industrial law facilitator, to be worthwhile.

Although this ruling is procedural, it says a lot about the commercial reality of wage litigation. The Court treated the allegations as involving both individual proof and broader common issues. That is often how underpayment disputes develop. A business may see a complaint as a handful of disputed shifts. Employees may frame it as a pattern created by staffing levels, opening and closing routines, handovers, labour budgets, manager expectations or central systems.

The decision also shows that evidence from multiple employees can be important even where liability is not truly common across the whole group. If several witnesses are relied on to prove a broader system, the Court may decide it is more efficient and more useful to hear their claims together at an early stage. That can increase the pressure on respondents to produce records, explain systems and confront allegations about repeated practices.

For employers, the practical reading is straightforward. Compare the roster on paper with the work actually done. Check whether managers or supervisors are expected to arrive early to prepare the site, stay late to finish tasks, complete handovers outside paid time, or perform duties before they can clock on or after they clock off. Review whether payroll settings, approval processes and labour budgets make it harder for staff to record all time worked. If your business operates through multiple entities or franchisees, consider whether common systems or expectations could be characterised as part of a broader pattern.

For franchisees and other respondents, the judgment is also a reminder that a passive role can still carry consequences. If you are a party to the proceeding, findings on common issues or sample claims may bind you under ordinary principles of preclusion. That means litigation strategy should be deliberate, not assumed.