Fair Work Ombudsman and NSW Motel Management Services Pty Ltd and Anor (No.3)
[2018] FCCA 2330
•22 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN & NSW MOTEL MANAGEMENT SERVICES PTY LTD & ANOR (No.3) | [2018] FCCA 2330 |
| 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: Fair Work Act 2009 (Cth) 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:
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:
The First Respondent contravened:
(a)section 44 of the Fair Work Act 2009 (Cth) (FW Act), by failing to pay Mr Rolando Gagate (Mr Gagate) and Mr Michael Tan (Mr Tan) their entitlements to annual leave as prescribed by subsection 90(1) of the FW Act;
(b)section 44 of the FW Act, by failing to pay Mr Gagate his entitlement to annual leave upon termination of employment as prescribed by subsection 90(2) of the FW Act;
(c)section 44 of the FW Act, by cashing out the annual leave of Ms Maricar Virata (Ms Virata) in contravention of section 92 of the FW Act;
(d)section 44 of the FW Act, by failing to give each of Mr Gagate, Mr Tan, Ms Virata and Ms Rhea Monleon (Ms Monleon) (collectively, the Employees) the Fair Work Information Statement as required by subsection 125(1) of the FW Act;
(e)section 45 of the FW Act, by failing to pay Mr Gagate and Mr Tan minimum hourly rates as prescribed by clauses 20.1 and A.3.6 of Schedule A of the Hospitality Industry (General) Award 2010 (Modern Award) during the following employment periods:
(i)Mr Gagate: 9 February 2013 to 13 April 2014; and
(ii)Mr Tan: 24 November 2012 to 24 February 2013 (Taree), 17 June 2013 to 14 September 2014 (Queanbeyan) and 15 September 2014 to 11 January 2015 (Halls Gap) (Employment Periods);
(f)section 45 of the FW Act, by failing to pay Mr Gagate and Mr Tan Saturday penalty rates as prescribed in clauses 32.1 and A.7.3 of Schedule A of the Modern Award during the Employment Periods;
(g)section 45 of the FW Act, by failing to pay Mr Gagate and Mr Tan Sunday penalty rates as prescribed in clauses 32.1 and A.7.3 of Schedule A of the Modern Award during the Employment Periods;
(h)section 45 of the FW Act, by failing to pay Mr Gagate and Mr Tan public holiday penalty rates as prescribed in clauses 32.1 and A.7.3 of Schedule A of the Modern Award during the Employment Periods;
(i)section 45 of the FW Act, by failing to pay Mr Gagate and Mr Tan overtime rates (Monday to Friday) as prescribed by subclause 33.3(a)(i) of the Modern Award during the Employment Periods;
(j)section 45 of the FW Act, by failing to pay Mr Gagate and Mr Tan overtime rates (weekends) as prescribed by subclause 33.3(a)(ii) of the Modern Award during the Employment Periods;
(k)section 45 of the FW Act, by failing to pay Mr Gagate and Mr Tan evening penalty rates as prescribed by subclause 32.2(a) and clauses A.7.3 and A.5.4 of Schedule A of the Modern Award during the Employment Periods;
(l)section 45 of the FW Act, by failing to pay Mr Gagate and Mr Tan annual leave loading as prescribed by clause 34.2 of the Modern Award during the Employment Periods;
(m)section 45 of the FW Act, by failing to prepare rosters for Mr Tan and Mr Gagate that complied with clause 30.1 of the Modern Award during the Employment Periods
(n)subsection 323(1)(a) of the FW Act, by failing to pay Ms Virata, Mr Gagate and Mr Tan in full, during the Employment Periods in respect of Mr Gagate and Mr Tan, and from 11 February 2013 to 14 July 2013 in respect of Ms Virata;
(o)subsection 535(1) of the FW Act by failing to make and keep records as prescribed by regulation 3.32 of the Fair Work Regulations 2009 (Cth) (FW Regulations) in respect of Mr Gagate during the relevant Employment Periods;
(p)subsection 535(1) of the FW Act by failing to make and keep records as prescribed by regulation 3.34 of the FW Regulations in respect of Mr Gagate and Mr Tan during the Employment Periods;
(q)subsection 535(1) of the FW Act by failing to make and keep records as prescribed by regulation 3.36(1) of the FW Regulations in respect of Mr Gagate during the relevant Employment Periods;
(r)subsection 535(1) of the FW Act and regulation 3.44(1) of the FW Regulations, by keeping records that were false and misleading in relation to the net amount paid to Ms Monleon on a weekly basis from on or about 8 July 2012 to 4 November 2013;
(s)subsection 535(1) of the FW Act and regulation 3.44(1) of the FW Regulations, by keeping records that were false and misleading in relation to the employment status of Mr Tan while he was employed at Halls Gap;
(t)section 536(1) of the FW Act, by failing to provide Ms Virata, Ms Monleon and Mr Tan pay slips within one day of payment for work performed by them;
(u)subsection 340(1)(a) of the FW Act, by taking adverse action, within the meaning of subsection 342(1) of the FW Act, against Ms Monleon because she exercised a workplace right pursuant to subsection 340(1)(a) of the FW Act; and
(v)subsections 340(1)(a) and 340(1)(b) of the FW Act, by taking adverse action, within the meaning of subsection 342(1) of the FW Act, against Mr Tan because he had a workplace right or to prevent him from exercising same.
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).
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.
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THE COURT ORDERS THAT:
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.
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
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”).
In the Liability Decision the Court made the following directions:
“(1) The parties are directed to confer and, if possible, bring in a minute of proposed orders to be made to give effect to these reasons for decision on or before 4pm on 3 August 2018.
(2) In the event of any dispute as to the form of any order to give effect to these reasons for decision:
(a) the applicant file and serve a draft minute of orders accompanied by an outline of submissions (limited to 5 pages) addressing any disputed question in that respect by 10 August 2018; and
(b) the respondents file and serve a draft minute of any alternative orders accompanied by an outline of submissions (limited to 5 pages) addressing any disputed question in that respect by 17 August 2018.
(3) Any question with respect to paragraph 2 shall be resolved on the papers unless in written submissions filed in accordance with the allocated timetable either party seeks an oral hearing in which case the matter be listed on 24 August 2018 to make orders to give effect to these reasons for decision.
(4) Subject to the above orders the remainder of the proceedings be adjourned to a date to be fixed to program the further conduct of the proceedings in relation to the penalty if any that should be imposed on the respondents for the breaches of the FW Act referred to in the accompanying reasons for decision and the Amended SOAF filed 2 March 2018.”
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.
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.
On 7 August 2018 the parties advised the Court via email correspondence as follows:
Please find attached a minute of proposed orders signed by the parties and for his Honour’s consideration, concerning the liability decision and the future programming of these proceedings.
We note that the proposed orders identify the following issues as being in dispute between the parties and for which short submissions and a draft minute of proposed orders will be filed:
(a) the effect of paragraphs 257 and 327(a) of the Reasons for Judgment delivered on 20 July 2018; and
(b) the page limit, if any, to be ordered by the Court in respect of the submissions to be filed by the parties on the question of penalties.
On receipt of this advice, a telephone mention was convened after which the following orders were made:
“1. Order 2 and 3 made by the Court on 20 July 2018 be vacated.
2. By 10 August 2018, the Applicant is to file and serve a draft minute of orders accompanied by an outline of submissions(limited to 3 pages) addressing:
(a) the effect of paragraphs 257 and 327(a) of the Reasons for Judgment delivered on 20 July 2018 (the Paragraphs 257 and 327(a) Issue) and;
(b) the page limit, if any, to be ordered by the Court in respect to the submissions to be filed by the parties on the question of penalties (the Page Limit Issue).
3. By 17 August 2018, the Respondents are to file and serve a draft minute of orders accompanied by an outline of submissions (limited to 3 pages) addressing the Paragraphs 257 and 327(a) Issue and the Page Limit Issue.
4. The Court is to determine on the papers the Paragraphs 257 and 327(a) Issue and the Page Limit Issue.
5. By 31 August 2018, the Applicant is to file and serve any evidence in respect of the penalties, together with a list precisely identifying the existing evidence on which they intend to rely on in respect of the penalties.
6. By 12 October 2018, the Respondents are to file and serve any evidence in respect of the evidence in respect of the penalties, together with a list precisely identifying the existing evidence on which they intends to rely in respect of the penalties.
7. By 26 October 2018, the Applicant is to file and serve any evidence in reply.
8. By 2 November 2018, the Applicant is to file and serve their submissions, subject to any page limit ordered by the Court in resolution of the Page Limit Issue.
9. By 9 November 2018, each party is to advise the other party, in relation to each witness who has provided affidavit evidence in respect of the penalties on behalf of the other party, which witnesses are required for cross-examination.
10. By 29 November 2018, the Respondents are to file and serve their submissions, subject to any page limit ordered by the Court in resolution of the Page Limit Issue.
11. By 21 December 2018, the Applicant is to file and serve their submissions in reply, subject to any page limit ordered by the Court in resolution of the Page Limit Issue.
12. The matter be listed for a one day hearing on a date to be fixed by the Court, not before February 2019 and not including the period from 19 February to 12 March 2019.
13. Pursuant to section 66 of the Federal Circuit Court of Australia Act 1999 (Cth), any witness who has provided affidavit evidence and is required to attend for cross-examination, be permitted to appear and give evidence by video link at the expense of the party on whose behalf the affidavit has been provided, if that witness resides outside Victoria.”
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.
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.
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
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
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:
“Paragraph 257 of the Liability Decision
2. Paragraph 257 concerns the issue of whether there was a failure by the First Respondent to comply with rostering obligations contained in the Hospitality Industry (General) Award 2010 (Award). The first sentence of that paragraph states: “It is important that the parties abide by their pleaded case/s and the Amended SOAF.”
3. The relevant paragraph of the Amended Statement of Agreed Facts dated 2 March 2018 (Amended SOAF) is paragraph 81. Relevantly, the parties agree that (emphasis added) the First Respondent failed to prepare “rosters at Halls Gap which at all times recorded the names, and start and finish times of Mr Gagate and Mr Tan as required by clause 30.1 of the Modern Award” and “any rosters in respect of Mr Tan’s employment at Queanbeyan and Taree”, and that this was a contravention of clause 30.1 of the Award and s 45 of the Fair Work Act 2009 (Cth) (FW Act).
4. Those facts were agreed between the parties for the purpose of s 191 of the Evidence Act 1995 (Cth) (Evidence Act). Leave of the Court to dispute the agreed fact was not sought or given for the purposes of section 191(2) of the Evidence Act.
5. At paragraph 121 of the Defence, relevantly, the Respondents admitted that when the Employees (which includes Mr Tan and Mr Gagate) were engaged at the First Respondent’s motel business at Halls Gap, the First Respondent failed to prepare rosters that at all times contained the names of each of the Employees, and contained the start and finish times of each of the Employees. These were not facts in issue. See also paragraph 248 of the Liability Decision.
6. In relation to Queanbeyan and Taree, it was not in issue that the First Respondent failed to prepare any rosters at all in respect of (relevantly) Mr Tan. See paragraph 122 of the Defence and paragraph 81(b) of the Amended SOAF.
7. Paragraph 257 of the Liability Decision, insofar as it refers to Halls Gap, only expressly mentions a contravention regarding Mr Gagate’s employment. It does not refer to rosters for Mr Tan at Halls Gap. As the Applicant understands it, the Respondents assert, on the basis of that apparently inadvertent omission, that a declaration of contravention of the rostering requirement in relation to Halls Gap should only be made in respect of Mr Gagate (not Mr Tan).
8. The Applicant submits that the Respondents should be held to their pleaded case, and to the admitted facts in paragraph 81 of the Amended SOAF. On that basis, the declaration of contravention of the rostering requirement in relation to Halls Gap should extend to both Mr Gagate and Mr Tan, and in respect of Queanbeyan and Taree it should extend to Mr Tan.
9. If an amendment to paragraph 257 of the Liability Decision be required, under the slip rule[1], to replace “Mr Gagate” with “Mr Gagate and Mr Tan”, then the Applicant submits that such an amendment should be made. Such an amendment might be made under r 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth), to give effect to the Court’s intention that the parties abide by their pleaded cases and the Amended SOAF.
10. Proposed orders 3A and 3B in the minute at Annexure A to these submissions are consistent with paragraph 81 of the Amended SOAF and the Respondents’ admissions at paragraphs 121 and 122 of the Defence, and with the finding at paragraph 355 of the Liability Decision (see the reference to row “o“ of Annexure B of the Liability Decision).
Paragraph 327(a) of the Liability Decision
11. Paragraph 327(a) of the Liability Decision records a finding that “the First Respondent contravened s340(1)(a) of the FW Act by taking adverse action against Ms Monleon because she exercised a workplace right”. It is apparent that this is a reference to the earlier finding, at paragraph 314, that “…the first respondent (through the third respondent) contravened 340(1)(a) of the FW Act, by engaging in the threat to terminate Ms Monleon because she exercised a workplace right.”
12. The Applicant does not read paragraph 327(a) of the Liability Decision to the “Direction to Under Record Hours” referred to at paragraph 127 of the Statement of Claim and paragraphs 322 of the Liability Decision, insofar as it related to Ms Monleon. No contravention was found, in relation to that Direction being given to Ms Monleon, because of the finding that she did not have a “workplace right” of the kind pleaded: see paragraph 321 of the Liability Decision.
13. Insofar as there was a contravention found in relation to the Direction to Under Record Hours, that contravention is limited to Mr Tan: paragraphs 321-326 of the Liability Decision. It is that contravention, in respect of Mr Tan, which is referred to in paragraph 327(b) of the Liability Decision.
14. We understand that the Respondents will seek that the Court amend paragraph 327(a) of the Liability Decision. In our respectful submission, and in light of the understanding at paragraphs 11-13 above, there is no need for any such amendment.
15. Paragraphs 327(a) and (b) of the Liability Decision are reflected in orders 1(t) and 1(u) respectively of the Parties’ Minute. There is no need to amend those proposed orders. (emphasis added)
[1] See Federal Circuit Court Rules 2001 (Cth), r 16.05(2)(h).
The respondents’ submissions
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:
“The effect of paragraph 257 of the reasons for judgment
2. The first contested order relates to the allegation that there was a breach of s 45 of the Fair Work Act by failing to prepare rosters that complied with clause 30.1 of the Modern Award.
3. At [257] of the Court’s reasons, the Court stated:
“… On the evidence before the Court in relation to rosters the evidence which I accept was they were prepared for Halls Gap but not for Taree or Queanbeyan. However, in relation to the former I also accept that those that were prepared (in so far as the Modern Award imposed such a requirement in relation to Mr Gagate) did not comply.”
4. The Respondents submit that these reasons are best reflected in an order in the following terms:
The First Respondent contravened section 45 of the FW Act, by failing to prepare rosters for Mr Tan and Mr Gagate that complied with clause 30.1 of the Modern Award during the Employment Periods other than for Mr Tan at Halls Gap.
This is so because the Court’s reasons at [257] make it plain that the only breach arising from the Halls Gap rosters were those relating to Mr Gagate.
5. The Applicant’s submissions should be rejected because she seeks to supplement the Court’s reasons with what she claims was ‘inadvertence’ by this Court; see [7] of the Applicant’s submissions. By contrast, the Respondents’ proposed order does as the order of the Court requested – that is, they provide an order which gives effect to the reasons for decision, and no more.
The effect of paragraph 327(a) of the reasons for judgment
6. The Respondents respectfully submit that the Court should issue a corrigendum to delete paragraph [327(a)]. It states:
“I am satisfied that the first respondent contravened:
a) s. 340(1)(a) of the FW Act by taking adverse action against Ms Monleon because she exercised a workplace right…”
7. The only reason for this suggestion is that this conclusion seems to be inconsistent with the finding at [321] to the following effect:
“… The situation in relation to Ms Monleon however, is different for the reasons set out earlier and I am not satisfied that she had the workplace right as pleaded in relation to this instance of alleged adverse action.”
Resolution of outstanding issues from Liability Decision
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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
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.
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
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 twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 22 August 2018
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