Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA 576

Federal Court of Australia

Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA 576 File number: NSD 106 of 2023

Judgment of: BROMWICH J

Date of judgment: 4 June 2024

Catchwords: INDUSTRIAL LAW – determination of civil penalties for admitted breaches of s 558B(1) of the Fair Work Act 2009 (Cth) by the respondent as "responsible franchisor" – whether breaches of record keeping obligations set out in the Fair Work Regulations 2009 (Cth) could be considered a single contravention by operation of s 557(1) – whether the conclusions in Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; 221 FCR 153 as to the application of s 557(1) are applicable to franchisors' secondary liability under s 558B(1) – whether record keeping obligations under r 3.33 of the Fair Work Regulations are capable of being taken to be a single contravention for the purposes of s 557(1) – where franchisor previously directly operated shops at the franchise locations and employed staff – where franchisor had been previously found to have contravened the Fair Work Act and applicable awards as a direct employer – where franchisor had previously admitted to contraventions of the Fair Work Act and applicable awards in an enforceable undertaking – where franchisor had ceased business in Australia and did not intend to recommence – where franchisor had remained registered in Australia to hear the outcome of proceedings – where franchisor had admitted to contraventions in an agreed statement of facts – relevance of industry context of non-compliance and vulnerable workers to general deterrence – relevance of contrition and admissions to general and specific deterrence – DECISION: extensive agreed declarations of contravention made; penalty imposed totalling $1,440,000 to be paid within 60 days-