Federal Court of Australia
Federal Court of Australia
Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317 File number: NSD 1297 of 2020
Judgment of: BROMWICH J
Date of judgment: 4 November 2022
Catchwords: INDUSTRIAL LAW – application for declaratory relief and pecuniary penalties for contraventions of numerous provisions of the Fair Work Act 2009 (Cth) (FWA) – where the employer made admissions to contraventions of underpaying award entitlements in relation to minimum wages, weekend and public holiday penalty rates, overtime and annual leave, superannuation, and a related failure to keep employment records and provide payslips – where there is a proposed a range of pecuniary penalties proposed by the applicant and not opposed by the respondent, so as to be effectively an agreed range – whether the quantum of penalties within that range is sufficient and appropriate to meet the objective of deterrence – Held: respondent to pay the Commonwealth a pecuniary penalty of $475,200 being at the top of the range effectively agreed upon
Legislation: Fair Work Act 2009 (Cth) ss 44(1), 45, 90(2), 125(1), 535(1), 535(2), 536(1), 546, 546(1), 546(2), 577, 577(1), 715 Fair Work Regulations 2009 (Cth) regs 3.31(1)(a), 3.32(a), 3.32(b), 3.32(c), 3.32(d), 3.33(1)(b), 3.33(3)(b), 3.34(a), 3.36(1) Food, Beverage and Tobacco Manufacturing Award 2010 (Cth) cll 20.1, 29.2, 30.2(f), 33.1(a), 33.6, 33.7 General Retail Industry Award 2010 (Cth) cll 17, 18.2, 22.2, 29.2(a), 29.2(c), 29.4(b), 29.4(c), 29.4(d)
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 314 IR 301 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Fair Work Ombudsman v NSH North Pty Ltd (t/as New Shanghai) [2017] FCA 1301; 275 IR 148 Fair Work Ombudsman v IE Enterprises Pty Ltd [2021] FCA 60 Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 299 IR 404 Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; 171 FCR 357
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