Domino’s also argued that given the FW Act sets out a comprehensive code for the enforcement and recovery of employee entitlements, the Applicant (and any other worker) is not able to claim a remedy for failure to pay the correct employment related entitlements through the ACL. Whilst underpayment claims are ordinarily pursued under the FW Act, in this case the Applicant (and other workers) attempted to seek damages from the franchisor under section 236 of the ACL for alleged loss (being, the alleged underpayment) caused by misleading or deceptive conduct pursuant to a section 18 of the ACL (being, Domino’s representing to the franchisees regarding the pay rates and terms of conditions of employment applicable to the franchisees’ employees).ĭomino’s sought to have the Applicant’s amended statement of claim struck out, based on grounds that, among other things, it was ambiguous, failed to plead material facts and disclosed no reasonable cause of action. This matter is unique as the Applicant and other employees have taken aim at the franchisor directly, despite it not being the entity employing the workers. Importantly, no claim has been made by the Applicant and other workers against their respective employers, the franchisees, directly. Domino’s representations to the franchisees were misleading and deceptive, which resulted in loss and damage suffered by the workers.the franchisees did not pay the workers the correct rates of pay in accordance with the Award and. the workers were covered by the Fast Food Industry Award 2010 ( Award) rather than the enterprise agreements.Domino’s represented to the franchisees that Applicant’s and other workers’ employment were governed by the terms and conditions of two enterprise agreements.On 24 June 2019, the Applicant commenced a class action, on behalf of himself and other delivery drivers and in-store workers, against Domino’s, the franchisor, for underpayment of wages under the FW Act and loss and damage under the ACL. The Applicant, Mr Riley Gall, was employed as a delivery driver by two of Domino’s franchisees from the period of October 2015 to March 2018. To that end, the Court was required to determine whether, among other things, the Fair Work Act 2009 (Cth) ( FW Act) operates in isolation to preclude a worker’s right to seek relief under the Australian Consumer Law ( ACL) for employment related matters. In the 13 April 2021 decision of an ongoing major class action for underpayment against a pizza chain franchisor, Domino’s, Gall v Domino’s Pizza Enterprises Ltd (No 2), the Federal Court rejected Domino’s application to have the pleadings filed on behalf of the workers struck out, and ordered costs against Domino’s.
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