The Full Court confirmed that class actions can be rebuilt by amendment
A Federal Court has handed down a mixed ruling in a class action over salaried retail managers' pay and hours, with implications for employer compliance.
The Full Court of the Federal Court of Australia on 10 April 2026 delivered its decision in Cannan v Dollarama Australia Pty Limited [2026] FCAFC 41, a class action brought by Store Managers and Assistant Store Managers against the retailer now known as Dollarama Australia (formerly The Reject Shop).
The applicant, Bradley Cannan, filed the proceeding in April 2023 on behalf of himself and other Store Managers and Assistant Store Managers. The original claim alleged the General Retail Industry Award 2010 applied to their employment and that they had been underpaid for actual hours worked during the period from 24 April 2017 to 18 April 2023.
Dollarama disputed this, arguing that an enterprise agreement rather than the award governed the managers' employment throughout that period. A judge found that the enterprise agreement did apply and that the award did not, which meant the original group of claimants had no qualifying members.
As the Full Court recorded, quoting the primary judge: "[i]n short, it is now accepted—or, in any event, it is the case—that neither award applies or applied to the employment of [Dollarama]'s Store Managers or Assistant Store Managers. As presently defined, the group on behalf of which Mr Cannan brings the proceeding is empty."
Rather than abandon the proceedings, Cannan's legal team restructured the claim. In June 2025, they filed an application seeking leave to file revised pleadings that dropped the award-based allegations entirely and redefined the class. The revised group covered salaried managers who had worked more than 40 hours in any given week (if full-time) or more than two hours beyond their ordinary hours of work (if part-time). The updated claim alleged underpayments under the enterprise agreement itself, as well as contraventions of the Fair Work Act including in relation to enterprise agreement obligations and maximum weekly hours.
The primary judge permitted those amendments and ordered them to take effect from 16 June 2025, being the date the amendment application had been filed. Cannan sought an earlier date, arguing the amendments should relate back to the commencement of the proceeding in April 2023, or alternatively to July 2024. Dollarama cross-appealed, arguing the class action could not have commenced before the amended documents were actually filed.
The Full Court dismissed Cannan's appeal and partly allowed Dollarama's cross-appeal. It found that no valid class action existed before the amended pleadings were filed, and that the class action properly commenced on 15 August 2025, being the date those documents were filed. The primary judge's order fixing 16 June 2025 as the operative date was set aside. Notably, the Full Court also confirmed, for the first time at appellate level, that an existing proceeding between individual parties can be converted into a class action by amendment. The underlying wage and hours claims have not been determined on their merits and the case will continue in the Federal Court's Fair Work Division.
The Full Court observed that employment class actions are becoming more common, noting: "Persons who seek to commence class actions must give careful consideration, at the outset, to whether the requirements of s 33C are satisfied. In particular, they must ensure that there are, in fact, seven or more persons with claims of the requisite character, and that the proceeding is otherwise properly constituted as a representative proceeding. This is not a matter which can be left to later forensic development."
The case illustrates the risk of misidentifying which industrial instrument covers a specific group of employees. Salaried managers in supervisory roles often sit at the boundary between award and enterprise agreement coverage. Here, the entire original claim was undone by a finding about which instrument applied. The restructured claim, now focused on enterprise agreement compliance and additional hours, will proceed.
The case continues.
