Controversial SA bill leaves 4 class actions in limbo

Supported by the Retail and Fast Food Workers Union (RAFFWU), Shine Lawyers’ class actions alleged staff at Coles, Woolworths, McDonald’s, and Hungry Jack’s were not provided with public holiday entitlements for Sunday shifts, despite those shifts being legislated as public holidays between 1910 and 31 December 2023.

A case management hearing before the Federal Court of Australia on Friday, 10 July, sought Justice Craig Dowling’s direction on how the class actions should proceed, if they are to proceed at all.

Appearing on behalf of the applicants in all four class actions, Lachlan Armstrong KC said the court should chart a course forward with ample space in the timetable to allow the respondents to amend their pleading – and the applicants to respond to any amendments – should the proposed Sunday legislation become law.

Referring to Justice Dowling’s mid-2027 availabilities, Armstrong argued: “The more we wait now, June next year becomes December.”

“The reason for that is this is plainly a situation where, given the limited scope for the intended trial, it is far more efficient for the question of constitutional validity of the legislation, if enacted, to be dealt with in this court as part of this hearing,” Armstrong said.

“Nearly everything can be done [now] … the whole timetable can be ordered with a view of the trial [taking place] next year.”

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Responding to Justice Dowling’s concern that a constitutional debate would still take up one day of the proposed three- or four-day hearing, Armstrong said that was “more reason” for the court to press ahead with a mid-2027 deadline, “rather than put everything on hold”.

Armstrong said that the respondents have been accommodated by this course, as opposed to the “do-nothing” attitude of the retailers.

Counsel appearing for Coles argued that the court should decide on the progression of the case after the legislation has been decided. The respondents have predicted this may be concluded by October, with a second reading debate due to be held in mid-August.

Given Shine’s submission that the constitutional argument should be heard alongside the class action issues, Coles’ counsel said there would then be the issue of determining whether any of the country’s attorneys-general may seek to intervene and what their submissions may be.

On the argument by Armstrong that it would be more cost-effective to progress now, Coles’ counsel said costs – and specifically those related to the opt-out notices – would have to be incurred either way.

Justice Dowling said he had sympathy for both parties; on the one hand, the applicants do not know if, when, or how the legislation may be passed; and the respondents would need a challenge even if the legislation is passed, including an amendment to the pleadings.

At the conclusion of Friday’s hearing, Justice Dowling programmed the matter for a case management hearing in early October; however, it came with the expectation “that the proposal of these orders not result in any meaningfully later date for my availability for trial”.

There were lengthy submissions at the start of the hearing regarding how the legislation may be debated by the time the trial does come around, but Justice Dowling said he will rule on those matters and make the necessary directions at the next case management hearing.

This included whether the proceedings would debate this separate question with just one of the respondents or all four. If it is all four, then there is the issue of whether each has a separate question.

In Armstrong’s case, it is efficient to proceed with just one party. He proposed Coles because this case has “the most fully articulated expression of the argument about the operation of the South Australian legislation and its interaction with the industrial elements”.

He urged Justice Dowling away from four separate questions because it would be “unnecessary and wasteful” of the court’s time.

“It is unnecessary because, in our respectful submission, at a practical level it is unrealistic to expect that these respondents, represented as they are by highly experienced legal teams on all counts … [that] any of them would seek to dispute in their own proceedings findings or rulings Your Honour could give as to the proper interpretation of the relevant legislation that is in issue across all proceedings,” he said.

On the possibility that the three other respondents may seek to intervene, Armstrong argued it would “very likely” end with them “effectively estopped from running contrary points in their own proceedings”.

“Certainly issues of estoppel or abuse of process would arise and would arise more forcefully for any respondent who was granted permission to intervene in the Coles separate question procedure,” he said.

Coles’ counsel argued that it would be “unfair” to move forward with the big retailer alone and have it deal with “up to eight intervention applications” from stranger proceedings that have “no skin in the game and on whom any judgment would not be binding”.

“Secondly, it undermines the efficient administration of justice by putting a court in a position where it expends judicial resources on the Coles proceedings only for Your Honour or another judge of the court to face an application later that the earlier judgment [was affected by issue],” the Coles’ counsel said.

While these matters were postponed to October, Justice Dowling stressed these submissions were not made in vain.

“That is just a comfort for the parties that all of the effort and time that has been spent today has not been wasted, it has been very much appreciated,” Justice Dowling said.