Fair Work Ombudsman v Make Dough Enterprises (in liquidation) [2024] FCA 1432

Fair Work Ombudsman v Make Dough Enterprises (in liquidation) [2024] FCA 1432

Section 557C of the Fair Work Act 2009 (Cth) applies such that, where a proceeding against a responsible franchisor under s 588B depends on establishing a contravention by a franchisee employer to which the reverse onus provision applies, the applicant (here, the Fair Work Ombudsman) may rely on that presumption and the responsible franchisor may adduce evidence to discharge the burden. Thus, the reverse onus operates in the same way in establishing the primary contravention for the purpose of s 588B.

Parties
Applicant: Fair Work Ombudsman; First Respondent: Make Dough Enterprises Pty Ltd (ACN 122 520 218); Second Respondent: John Vince Puglisi; Third Respondent: Lisa Kay Puglisi; Fourth Respondent: Bakers Delight Holdings Ltd (ACN 122 520 218)
Jurisdiction
Australia
Judgment Date
12 December 2024
Procedural Posture
Application for Civil Penalties and Related Orders Under the Fair Work Act 2009 (cth) / Determination of Separate Question Prior to Trial
Outcome
Separate question answered in the affirmative; case adjourned for further case management.
Legal Topics
Fair Work Act, Franchisor Liability, Burden of Proof, Employment Records, Reverse Onus Provision, Secondary Liability
Employment and Industrial Relations Law Fair Work Act Franchisor Liability Burden of Proof Employment Records Reverse Onus Provision Secondary Liability

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 17 Party arguments 2
Sign in to unlock

Parties

Fair Work Ombudsman

Applicant

Make Dough Enterprises Pty Ltd (ACN 122 520 218)

First Respondent

John Vince Puglisi

Second Respondent

Lisa Kay Puglisi

Third Respondent

Bakers Delight Holdings Ltd (ACN 122 520 218)

Fourth Respondent

Procedural Posture

Application for Civil Penalties and Related Orders Under the Fair Work Act 2009 (cth) / Determination of Separate Question Prior to Trial

Legal Issues

  1. 1 Does s 557C of the Fair Work Act 2009 (Cth) apply in proceedings against a responsible franchisor under s 588B?
  2. 2 If so, how does it operate and may the franchisor discharge the burden cast on the employer?

Ratio Decidendi

Section 557C of the Fair Work Act 2009 (Cth) applies such that, where a proceeding against a responsible franchisor under s 588B depends on establishing a contravention by a franchisee employer to which the reverse onus provision applies, the applicant (here, the Fair Work Ombudsman) may rely on that presumption and the responsible franchisor may adduce evidence to discharge the burden. Thus, the reverse onus operates in the same way in establishing the primary contravention for the purpose of s 588B.

Court Disposition

Separate question answered in the affirmative; case adjourned for further case management.

Orders

  • The separate question as set out is answered: Yes. Section 557C of the Fair Work Act 2009 applies to establish the contravention referred to at s 588B (1)(a) and it is open to a responsible franchisor to discharge the burden of disproving the relevant allegations.
  • The proceeding is adjourned for further case management to a date to be fixed.