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Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.3) [2018] FCCA 2330 (22 August 2018)

Last Updated: 23 August 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN & NSW MOTEL MANAGEMENT SERVICES PTY LTD & ANOR (No.3)


Catchwords:
INDUSTRIAL LAW – Contraventions of Fair Work Act 2009 (Cth) – consideration as to form of orders consequent upon pronouncement of judgment in substantive proceedings on 20 July 2018.


Legislation:
Federal Circuit Court Rules 2001 (Cth)

Cases cited:
Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Anor (No.2) [2018] FCCA 1935


Applicant:
FAIR WORK OMBUDSMAN

First Respondent:
NSW MOTEL MANAGEMENT SERVICES PTY LTD

Second Respondent:
MICHAEL PARKES

Third Respondent:
ROWENA SIOCO PARKES

File Number:
MLG 661 of 2016

Judgment of:
Judge O'Sullivan

Hearing date:
On the papers

Date of Last Submission:
17 August 2018

Delivered at:
Melbourne

Delivered on:
22 August 2018

REPRESENTATION

Solicitors for the Applicant:
Fair Work Ombudsman

Solicitors for the Respondents:
Stonier & Associates

UPON THE COURT NOTING:

(1) The reasons for decision in Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Anor (No.2) [2018] FCCA 1935

THE COURT DECLARES THAT:

(2) The First Respondent contravened:
(3) The Second Respondent was involved, pursuant to section 550(1) of the FW Act, in the contraventions of the First Respondent referred to in each of paragraph (2)(a) to (2)(t) (inclusive).
(4) The Third Respondent was involved, pursuant to section 550(1) of the FW Act, in the contraventions of the First Respondent referred to in each of paragraph (2)(c), (2)(n) (in respect of Ms Virata only), (2)(u) and (2)(v) above.

.

THE COURT ORDERS THAT:

(5) The page limited referred to at order [8] and [10] of the orders of 10 August 2018 be 20 pages, (plus any annexures) and 5 pages in respect of the applicant’s submissions in reply referred to in order [11] of the orders of 10 August 2018.
(6) The penalty hearing be fixed for 14 March 2019.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 661 of 2016

FAIR WORK OMBUDSMAN

Applicant

And

NSW MOTEL MANAGEMENT SERVICES PTY LTD

First Respondent

MICHAEL PARKES

Second Respondent

ROWENA PARKES

Third Respondent


REASONS FOR JUDGMENT

Introduction

  1. Reasons for judgment in these proceedings were delivered on 20 July 2018 in Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Anor (No.2) [2018] FCCA 1935 (“the Liability Decision”).
  2. In the Liability Decision the Court made the following directions:
  3. The Court directed the parties to confer and if possible, agree on orders necessary to give effect to the findings made in the Liability Decision.
  4. On 3 August 2018, the parties advised the Court they were making progress in preparing the proposed orders and requested an extension until 7 August 2018 to comply with the directions in the Liability Decision.
  5. On 7 August 2018 the parties advised the Court via email correspondence as follows:
  6. On receipt of this advice, a telephone mention was convened after which the following orders were made:
  7. As it clear from the above, the parties have been able to agree on all the orders necessary to give effect to the findings made in the Liability Decision save for two issues which arise from paragraphs 257 and 327(a) thereof respectively.
  8. These reasons explain what orders (including if necessary any additional orders to those already agreed by the parties) are necessary to give effect to the Liability Decision and to otherwise make the necessary declarations to record the findings set out therein.
  9. For the purposes of these reasons, terms defined in the Liability Decision (which should be read in conjunction with those reasons) have the same meaning in these reasons unless otherwise indicated.

Submissions

  1. As provided for in the directions made by the Court on 10 August 2018 the parties have filed outlines of written submissions in support of their respective positions on the outstanding issues arising from the Liability Decision which they agreed should be resolved on the papers.

The applicant’s submissions

  1. The applicant’s submissions on the outstanding issues arising from the Liability Decision were filed on 10 August 2018 and, so far as is relevant to resolve those issues, were:

The respondents’ submissions

  1. In accordance with the orders of 10 August 2018, the respondents’ submissions on the outstanding issues arising from the Liability Decision were filed on 17 August 2018 and, so far as is relevant to resolve those issues, were:

Resolution of outstanding issues from Liability Decision

  1. As is clear from the parties’ submissions, there are two points of contention that arise from what the parties have filed. Subject to the resolution of that controversy, only one further order (beyond those the parties otherwise agreed need to be made to reflect the findings in the Liability Decision) may need to be made.
  2. The first issue to resolve concerns paragraph 257 of the Liability Decision and what, if any, declarations are required to record the findings made by the Court in the Liability Decision on the allegations made that the first respondent had failed to comply with its obligations in relation to rosters as provided for in the Modern Award.
  3. The Liability Decision dealt with this issue at paragraphs [248] to [257] inclusive and did so in the context of what was the agreed position of the parties on the remaining issues in dispute and against the background of the pleadings and the Amended S.O.A.F. filed in March 2018.
  4. Against that background, a focus on paragraph [257] of the Lability Decision in isolation is apt to elide the findings that are properly found in the Liability Decision which were that the first respondent contravened section 45 of the Fair Work Act 2009 by failing to prepare rosters for Mr Tan and Mr Gagate that complied with clause 30 of the Modern Award during their employment periods with the first respondent.
  5. The second matter of contention or controversy between the parties as to the orders and declarations necessary to give effect to the findings made in the Liability Decision concerned paragraphs 327(a) thereof.
  6. The Liability Decision dealt with the allegations of adverse action made against the respondents at paragraphs [269] to [327] inclusive. As the applicant’s submissions filed 10 August 2018 correctly record the finding made at paragraph 327(a) of the Liability Decision is recorded as a result of what proceeded it and in particular, what was set out at paragraph [314] of the Liability Decision.
  7. The applicant’s submissions filed 10 August 2018 at paragraphs [11] to [13] with respect, correctly summarises the findings made in the Liability Decision with respect to the allegation that the first respondent (through the third respondent) contravened section 340(1)(a) of the FW Act by engaging in the threat to terminate Ms Monleon because she exercised a workplace right.
  8. Notwithstanding the respondents’ submissions at paragraph [12] above , in light of what was set out at paragraphs [269] to [327] of the Liability Decision there is no licence to construe the findings (or paragraph 327(a) which was a summary of the foregoing) otherwise.

Submissions for penalty phase

  1. The parties also agreed that in addition to resolving the outstanding issues arising from the Liability Decision on the papers, the Court should also address the page limit to be applied to the parties’ submissions to be filed in respect of the penalty phase of these proceedings.
  2. The parties’ submissions filed 10 August 2018 (at paragraphs [16] to [20]) and 17 August 2018 (at paragraphs [8] to [12]) respectively addressed the remaining issue between them in the context of what were otherwise uncontroversial directions for a penalty hearing to be on held on 14 March 2019
  3. Given the history of the proceedings and mindful of the number of contraventions (and the declarations of same which will be necessary to record at the beginning of these reasons to give effect to the Liability Decision) a limit of 20 pages (not inclusive of annexures) to primary submissions and 5 pages in reply is not unreasonable.

Orders to give effect to Liability Decision

  1. Subject to the resolution of those outstanding issues, in their correspondence to the Court on 7 August 2018, the parties attached a minute of proposed orders (which were otherwise agreed as necessary) to give effect to the Liability Decision.
  2. With the amendments referred to in paragraph 23 above, the orders will be as proposed by the applicant on the outstanding issues, and otherwise, as agreed by the parties as necessary, to give effect to the Liability Decision.

Conclusion

  1. Given the resolution of what the parties described as the two outstanding issues for the reasons set out above there will be declarations made to give effect to the findings made in the Liability Decision in the terms set out at the beginning of these reasons for decision.

I certify that the preceding 26Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-sixtwenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan

Date: 22 August 2018

[1] See Federal Circuit Court Rules 2001 (Cth), r 16.05(2)(h).

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