Federal Court of Australia Singh v Kentucky Fried Chicken Pty Ltd [2024] FCA 1180 File number: VID 887 of 2023 Judgment of: LEE J Date of judgment: 30 September 2024 Catchwords: PRACTICE AND PROCEDURE – class action brought by current and former employees of Kentucky Fried Chicken franchisees – proposed adduction of contextual evidence in relation to construction of industrial instruments – orders made Legislation: Evidence Act 1995 (Cth) ss 55, 56, 192A Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth) Pt VB Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 7 Date of hearing: 30 September 2024 Counsel for the applicants: Mr L Armstrong KC with Mr M Guo and Mr D Murphy Solicitors for the applicants: Gordon Legal Shine Lawyers Counsel for the first respondent (Kentucky Fried Chicken Pty Ltd): Mr R Craig KC with Mr A Manos Solicitors for the first respondent (Kentucky Fried Chicken Pty Ltd): Baker McKenzie Counsel for the second respondent (RG Restaurants Pty Ltd) and sixty-eighth respondent (Westpark Operations Pty Ltd): Mr R Dalton KC Solicitor for the second respondent (RG Restaurants Pty Ltd) and sixty-eighth respondent (Westpark Operations Pty Ltd): Seyfarth Shaw Counsel for the third, twenty-eighth, twenty-ninth and fifty-ninth respondents (Southern Restaurants Group): Mr N Burmeister Solicitor for the third, twenty-eighth, twenty-ninth and fifty-ninth respondents (Southern Restaurants Group): HR Legal Counsel for the twelfth, thirteenth, fourteenth, fifteenth, and seventy-forth respondents (Collins Restaurants): Mr J Kirkwood SC with Ms F Leoncio Solicitor for the twelfth, thirteenth, fourteenth, fifteenth, and seventy-forth respondents (Collins Restaurants): Corrs Chambers Westgarth Counsel for the forty-seventh respondent (QSR): Mr R Minson Solicitor for the forty-seventh respondent (QSR): Dentons Counsel for the fourth to seventh, sixteenth to twenty-seventh, thirteenth to forty-fourth, forty-sixth, forty-eighth, forty-ninth, fifty-first to fifty-eighth, sixtieth to sixty-seventh, sixty-ninth, seventieth, seventy-third, seventy-fifth to eightieth, eighty-second to eighty-fourth, eighty-eighth and eighty-ninth respondents (Pansummit Pty Ltd and other franchisee respondents): Mr C Parkinson KC Solicitor for the fourth to seventh, sixteenth to twenty-seventh, thirteenth to forty-fourth, forty-sixth, forty-eighth, forty-ninth, fifty-first to fifty-eighth, sixtieth to sixty-seventh, sixty-ninth, seventieth, seventy-third, seventy-fifth to eightieth, eighty-second to eighty-fourth, eighty-eighth and eighty-ninth respondents (Pansummit Pty Ltd and other franchisee respondents): Wotton + Kearney Counsel for the seventy-second respondent (Airport Retail Enterprises): Ms M Brady Solicitor for the seventy-second respondent (Airport Retail Enterprises): Henry William Lawyers ORDERS VID 887 of 2023 BETWEEN: ROSHANPAL SINGH First Applicant NEEL KASHAP Second Applicant SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION (and others named in the Schedule) Third Applicant AND: KENTUCKY FRIED CHICKEN PTY LTD (ACN 000 587 780) First Respondent RG RESTAURANTS PTY LTD (ACN 611 108 911) Second Respondent SOUTHERN RESTAURANTS (VIC) PTY LTD (ACN 082 719 275) (and others named in the Schedule) Third Respondent order made by: LEE J DATE OF ORDER: 30 SEPTEMBER 2024 THE COURT ORDERS THAT: Conferral 1. Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), by 4pm on 22 November 2024 the parties, by their junior counsel, confer in person about: (a) the list of factual and legal issues for the Court to determine at the initial trial, with such list: (i) to exclude any issues related to the applicants' claims that the first respondent contravened s 558B of the Fair Work Act 2009 (Cth) (being the relief sought by paragraphs 8–9 of the Amended Consolidated Originating Application); (ii) to include the proper construction of the Industrial Instruments (as defined in paragraph 56 of the Amended Consolidated Statement of Claim); and (iii) to include any other issues (subject to (i)-(ii) above) considered necessary or convenient for the Court to determine at the initial trial; (b) the characteristics of any person to be included in the initial trial; and (c) a protocol for electronic document management for discovery and for the initial trial. 2. By 4pm on 6 December 2024, the applicants deliver to the Associate to Justice Lee: (a) a document entitled "Factual Matters Relevant to Construction" which in narrative form identifies the facts relevant to the construction of the Industrial Instruments agreed by the parties arising out of the conferral undertaken pursuant to Order 15 of the Orders dated 22 July 2024 of which there is agreement or no bona fide dispute between the parties; (b) a document entitled "Factual and Legal Issues for Determination" (Issues List) which identifies: (i) each substantive issue of fact and law (subject to Order 1(a) above) that the parties agree is necessary or convenient for the Court to determine at the initial trial; (ii) the substantive issue(s) of fact and law (subject to Order 1(a) above) which any party considers should be on the Issues List but which is not so agreed; and (iii) the characteristics of any person identified pursuant to Order 1(b) above, to be included in the initial trial. Evidence relevant to construction 3. By 4pm on 9 December 2024, the respondents file any evidence upon which they wish to rely in relation to the determination of the proper construction of the Industrial Instruments. Mediation 4. By 4pm on 29 November 2024, the parties confer for the purpose of agreeing a mediator to mediate the proceeding. 5. In default of agreement pursuant to Order 4: (a) by 4pm on 6 December 2024, each party notify each other party of the mediator that it considers should mediate the proceeding; and (b) the applicants within one further business day deliver to the Associate to Justice Lee the combined list (as a bare list of names with no identification as to which party nominated the candidate) together with a request that the Judge nominate a mediator and an alternate. Further case management hearing 6. The proceeding be listed for a further case management hearing (CMH) at 9:00am on 13 December 2024 in Sydney. 7. By no later than: (a) seven days prior to the CMH the applicants deliver to each other party a draft joint position paper (JPP) succinctly stating their position in respect of each issue they propose be addressed at the CMH; (b) five days prior to the CMH, each other party referred to in 7(a) deliver to all parties its contribution to the draft JPP, succinctly stating that party's position in respect of each issue it proposes be addressed at the CMH; (c) three days prior to the CMH the applicants deliver to the Associate to Justice Lee the JPP; and (d) two days before the CMH, the parties provide a Court Book in electronic and hard copy to the Associate to Justice Lee in accordance with Format 2 of the eBooks Practice Note (GPN-eBOOKS) containing all the materials upon which they intend to rely at the CMH. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from the transcript) LEE J: 1 This is a class action brought by current or former employees of the respondent franchisees of Kentucky Fried Chicken Pty Ltd (KFC) (franchisees). The applicants allege that the franchisees breached various industrial instruments, and that the responsible franchisor (that is, KFC) is liable for contraventions of the Fair Work Act 2009 (Cth). It is unnecessary to set out the background to the proceedings for the purposes of this judgment, save to note that on 17 November 2023, I made an order in the following terms: Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), junior counsel briefed to appear and one solicitor for each party attend a conference (Conferral), together with counsel and one solicitor proposed to be retained in the related class action proceeding foreshadowed by Shine Lawyers (anticipated proceeding), for the purposes of: (a) identifying whether a separate question can be framed dealing with the issues of construction arising in this proceeding and the anticipated proceeding concerning the KFC National Enterprise Agreement 2009, the KFC National Enterprise Agreement 2020 and the Fast Food Industry Award 2020 (constructional issues); (b) identifying an agreed statement of facts relevant to the determination of the constructional issues; and (c) to the extent agreement cannot be reached, identifying the additional propositions for which any party or the intervener would contend in relation to the constructional issues. 2 We are now 10 months down the road. Once again, I am being asked by the respondents to defer the question of identifying what is described as "contextual evidence" that they contend is relevant to the constructional issues (as defined in the order above). 3 I am not prepared to defer this process any longer, notwithstanding that a further conferral is to occur by 22 November 2024 by which the constructional issues might be narrowed. In the light of the experience of the practitioners involved, I have no doubt that the parties, consistently with the overarching purpose in Pt VB of the Federal Court of Australia Act 1976 (Cth), will engage constructively in this process and eschew putting anodyne or blindingly obvious factual propositions in dispute. 4 The time has come for this case to proceed with some degree of celerity. I am far from convinced, with my current state of knowledge, that many of the facts proposed to be the subject of evidence filed by the respondents are relevant within the meaning of ss 55 and 56 of the Evidence Act 1995 (Cth) (EA). Apart from anything else, when this matter will return for case management on 13 December 2024, I wish to fix a hearing date and ascertain whether or not there would be utility, in advance of the hearing date, of making an advance ruling pursuant to s 192A of the EA as to the admissibility of some of the material upon which the respondents have foreshadowed they intend to rely. 5 Accordingly, I will make an order that the respondents file any evidence upon which they wish to rely in relation to constructional issues by 9 December 2024. 6 The respondents are not being asked to put on evidence in a vacuum. The applicants have made it plain that they intend to take an orthodox approach to the construction of the relevant industrial instruments, which are well-established in this and other areas of the law. 7 It will be a matter for another day as to whether the orthodox approach to construction (including having regard to any other contextual matters known to all parties to the relevant instrument) is sufficient to resolve the constructional issues. No doubt, a significant amount of time and money has been spent since November 2023 by the respondents identifying the contextual matters in respect of which they intend to lead evidence. There is no reason why that material cannot be put on by the date I have indicated above. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate: Dated: 10 October 2024 SCHEDULE OF PARTIES No. VID 887 of 2023 Federal Court of Australia District Registry: Victoria Division: Fair Work Applicants Second Applicant: Neel Kashap Third Applicant: Shop, Distributive and Allied Employees' Association Fourth Applicant: Ethan Westgarth Fifth Applicant: Emma Fitzsimmons Sixth Applicant: Cloe Bottiglieri Seventh Applicant: Josephine Bennett-Naimo Eighth Applicant: Seyfi Bostanci Ninth Applicant: Riley Ward Tenth Applicant: Kristy-Lea Hall Eleventh Applicant: Mackenzie Cornford Respondents Second Respondent: RG Restaurants Pty Ltd (ACN 611 108 911) Third Respondent: Southern Restaurants (Vic) Pty Ltd (ACN 082 719 275) Fourth Respondent: Arnolda Pty Ltd. (ACN 081 255 512) as Trustee for the Arnolda Family Trust (ABN 44 266 063 752) Fifth Respondent: Athu Holdings Pty Ltd (ACN 135 881 711) as trustee for the Athukorala Family Trust (ABN 40 259 140 583) Sixth Respondent: Baymax Pty Ltd (ACN 150 963 045) Seventh Respondent: Bluepetals Pty Ltd (ACN 083 832 526) as trustee of the Soertsz Family Trust No. 1 Eighth Respondent: Bookah Pty Ltd (ACN 088 051 772) as Trustee for Bookah Family Trust (ABN 29 485 700 240) Ninth Respondent: Broadview (Aust) Pty Ltd (ACN 146 213 612) Tenth Respondent: Changela Food Pty Ltd (ACN 146 861 118) as Trustee of the Changela Family Trust (ABN 21 022 585 101) Eleventh Respondent: CMC Sydney Pty Ltd (ACN 095 087 531) Twelfth Respondent: Collins Restaurants Management Pty. Ltd. (ACN 093 912 979) Thirteenth Respondent: Collins Restaurants NSW Pty Ltd (ACN 094 786 142) Fourteenth Respondent: Collins Restaurants South Pty Ltd (ACN 612 129 781) Fifteenth Respondent: Collins Restaurants West Pty Ltd (ACN 009 701 179) Sixteenth Respondent: Daymal Pty Ltd (ACN 138 139 161) Seventeenth Respondent: D & B Arnolda Family Pty Ltd (ACN 087 947 439) as Trustee for the D & B Arnolda Family Trust (ABN 83 550 375 207) Eighteenth Respondent: Dimothenis Pty. Ltd. (ACN 135 543 216) as Trustee for the Dimas Family Trust (ABN 82 438 936 515) Nineteenth Respondent: Edelmanian Enterprises Pty Ltd (ACN 154 482 710) Twentieth Respondent: Festival State Foods Pty Ltd (ACN 160 320 178) Twenty-First Respondent: Fishfood Holdings Pty Ltd (ACN 090 060 638) Twenty-Second Respondent: Fishfood Trading Pty. Ltd (ACN 125 317 759) as Trustee for the Fisher Family Trust (ABN 85 693 344 126) Twenty-Third Respondent: Free Grange Pty Ltd (ACN 150 243 842) as Trustee for the Ellin Family Trust (ABN 15 411 431 811) Twenty-Fourth Respondent: GFource Pty Ltd (ACN 616 308 591) Twenty-Fifth Respondent: Haydar Group Pty Ltd (ACN 099 563 596) as Trustee for the H&L Haydar Family Trust (ABN 29 047 678 936) Twenty-Sixth Respondent: HM (NSW) Pty. Ltd. (ACN 151 790 206) as Trustee for the HM Unit Trust (ABN 40 393 050 642) Twenty-Seventh Respondent: Huntell Pty Ltd (ACN 161 170 538) as Trustee of the Huntley-Mitchell Family Trust (ABN 91 816 089 948) Twenty-Eighth Respondent: Jasard Pty. Ltd. (ACN 159 731 352) Twenty-Ninth Respondent: Jet Restaurants Pty Ltd (ACN 620 991 022) Thirtieth Respondent: Kayvier Pty Ltd (ACN 161 334 407) as Trustee for the Kiki Family Trust (ABN 54 840 659 048) Thirty-First Respondent: Lamstan Group Pty Ltd (ACN 618 205 468) Thirty-Second Respondent: Lincron Pty Ltd (ACN 003 415 790) Thirty-Third Respondent: M & C Soertsz Investments Pty Ltd (ACN 165 730 941) as Trustee for the Suitsy Family Trust (ABN 23 578 701 022) Thirty-Fourth Respondent: Mandir Pty Ltd (ACN 156 428 232) as trustee for Chudal Family Trust (ABN 97 793 451 880) Thirty-Fifth Respondent: Marcamp Pty Ltd (ACN 160 329 724) Thirty-Sixth Respondent: Mega Star Group Pty. Ltd. (ACN 153 419 688) Thirty-Seventh Respondent: Melsem Pty Ltd (ACN 164 178 358) as Trustee of the RD Else Family Trust (ABN 84 643 274 036) Thirty-Eighth Respondent: Mettle Pty Ltd (ACN 079 475 933) as trustee for the Scott Hosking Family Trust (ABN 81 475 428 495) Thirty-Ninth Respondent: MML Restaurant Group Pty. Ltd. (ACN 141 198 987) as Trustee for the Glanville Family Trust (ABN 36 185 923 169) Fortieth Respondent: Mylora Holdings Pty Ltd (ACN 081 302 301) as Trustee for the Leonard Family Trust (ABN 92 516 796 049) Forty-First Respondent: Oceantime Pty Ltd (ACN 083 832 446) as trustee of the Soertsz Family Trust No. 2 (ABN 38 017 726 430) ; Forty-Second Respondent: One One Pty Ltd (ACN 008 651 581) Forty-Third Respondent: Pansummit Pty Ltd (ACN 162 020 340) Forty-Fourth Respondent: Pomonal Pty Ltd (ACN 086 553 184) as Trustee for the Stead Park Family Trust (ABN 29 498 724 073) Forty-Fifth Respondent: Premlata Pty Ltd (ACN 159 755 905) as Trustee for the Tripathi Family Trust (ABN 43 369 713 114) Forty-Sixth Respondent: Prime Corporation Australia Pty Ltd (ACN 620 896 639) as Trustee of the Rupani Family Trust (ABN 74 415 368 292) Forty-Seventh Respondent: QSR Pty Ltd (ACN 089 163 682) Forty-Eighth Respondent: Moonynight Pty Ltd (ACN 082 992 612) as trustee for the Raymond Family Trust No. 1 Forty-Ninth Respondent: Rainystar Pty Ltd (ACN 082 993 404) as Trustee for the Raymond Family Trust No. 2 Fiftieth Respondent: [not used] Fifty-First Respondent: RSJ Family Pty Ltd (ACN 152 610 387) Fifty-Second Respondent: RTR Restaurants Pty Ltd (ACN 084 743 822) Fifty-Third Respondent: S P Etheridge Pty Ltd (ACN 138 488 534) as trustee for Etheridge Trust (ABN 67 991 057 077) Fifty-Fourth Respondent: Sandyshore Pty Ltd (ACN 149 634 597) as Trustee for the Ashton Family Trust (ABN 62 721 071 429) Fifty-Fifth Respondent: Sangor Pty. Ltd (ACN 091 110 235) as Trustee for the Sangor Discretionary Trust (ABN 19 642 201 795) Fifty-Sixth Respondent: Sedar Warrnambool Pty. Ltd (ACN 078 592 686) as Trustee for the Sedar Warrnambool Discretionary Trust (ABN 28 052 292 875) Fifty-Seventh Respondent: Shayden Nominees Pty. Ltd. (ACN 082 950 856) as Trustee for the C & M Income Trust (ABN 64 320 400 785) Fifty-Eighth Respondent: Soertsz Trading Corporation Pty. Ltd (ACN 094 414 874) Fifty-Ninth Respondent: Southern Sun Restaurants Pty Ltd (ACN 098 037 677) Sixtieth Respondent: St George Restaurants Pty Ltd (ACN 146 926 525) Sixty-First Respondent: Stephkon Pty. Ltd (ACN 132 115 461) as Trustee for the Kon & Stephanie Genovezos Family Trust (ABN 86 806 007 133) Sixty-Second Respondent: Toronton Pty. Ltd. (ACN 006 846 911) as Trustee for the RJ Hosking Family Trust (ABN 24 792 235 003) Sixty-Third Respondent: Toronton Pty. Ltd. (ACN 006 846 911) as Trustee for the Bellarine Ollies Unit Trust (ABN 43 732 438 538) Sixty-Fourth Respondent: Toronton Pty. Ltd. (ACN 006 846 911) as Trustee for the Colac Unit Trust (ABN 78 709 717 747) Sixty-Fifth Respondent: Tucker Projects Pty Ltd (ACN 151 774 935) as Trustee of the Tucker Family Trust (ABN 76 528 722 402) Sixty-Sixth Respondent: Turner Retail Pty Ltd (ACN 139 915 852) as Trustee for the Turner Unit Trust (ABN 94 420 228 123) Sixty-Seventh Respondent: Vic Chick Pty Ltd (ACN 614 184 351) Sixty-Eighth Respondent: Westpark Operations Pty. Ltd. (ACN 084 391 864) as trustee for the Westpark Operations Unit Trust (ABN 11 949 495 364) Sixty-Ninth Respondent: Wills Hill Operations Pty Ltd (ACN 629 018 748) Seventieth Respondent: W-R-Z Corporation Pty Ltd (ACN 069 449 841) Seventy-First Respondent: Zamm Enterprises Pty Ltd (ACN 158 977 176) Seventy-Second Respondent: Airport Retail Enterprises Pty Ltd (ACN 008 749 031) Seventy-Third Respondent: C. Wiles Investments Pty Ltd (ACN 141 796 063) as Trustee for Wiles Family Trust (ABN 22 709 813 201) Seventy-Fourth Respondent: Collins Restaurants Queensland Pty Ltd (ACN 009 988 381) Seventy-Fifth Respondent: Delah Hamilton Pty. Ltd (ACN 078 592 926) as Trustee for Delah Hamilton Discretionary Trust (ABN 48 844 657 833) Seventy-Sixth Respondent: Dimothenis 5 Pty. Ltd. (ACN 654 918 555) Seventy-Seventh Respondent: DKE Pty. Ltd (ACN 128 958 010) as Trustee for the Hillier Family Trust (ABN 37 481 960 214) Seventy-Eighth Respondent: Jayvier Pty Ltd (ACN 655 906 193) Seventy-Ninth Respondent: JC Arnolda Pty Ltd (ACN 662 123 293) Eightieth Respondent: Kozpat Pty. Ltd. (ACN 131 961 503) as Trustee for the Kozpat Trust (ABN 81 596 584 041) Eighty-First Respondent: Mady Pty Ltd (ACN 133 601 297) as Trustee for the Madytianos Family Trust (ABN 97 913 110 723) Eighty-Second Respondent: Red Earth Restaurants Pty Ltd (ACN 620 354 056) Eighty-Third Respondent: Rigel Portland Pty. Ltd (ACN 078 592 711) as Trustee for the Rigel Portland Discretionary Trust (ABN 65 757 272 357) Eighty-Fourth Respondent: Rusha Pty. Ltd (ACN 094 414 865) Eighty-Fifth Respondent: [not used] Eighty-Sixth Respondent: [not used] Eighty-Seventh Respondent: [not used] Eighty-Eighth Respondent: Vida Rica Pty. Ltd (ACN 101 412 220) Eighty-Ninth Respondent: Wirk Horsham Pty. Ltd (ACN 078 592 622)