Fair Work Ombudsman and NSW Motel Management Services Pty Ltd and Anor (No.3)

This matter came before Judge O'Sullivan of the Federal Circuit Court of Australia concerning outstanding issues arising from a prior judgment. The applicant, the Fair Work Ombudsman, sought orders consequent upon the substantive liability decision. The respondents were NSW Motel Management Services Pty Ltd and another party. The dispute centred on the precise form of declarations of contravention of the *Fair Work Act 2009* (Cth) and the *Hospitality Industry (General) Award 2010*, particularly in relation to rostering obligations and adverse action.

The court was required to determine whether declarations of contravention regarding rostering obligations at Halls Gap should extend to both Mr Gagate and Mr Tan, or solely to Mr Gagate as inadvertently stated in the liability decision. It also needed to consider whether a declaration of contravention for failing to prepare any rosters at Queanbeyan and Taree should include Mr Tan. Furthermore, the court had to address the respondents' apparent intention to seek an amendment to a finding of contravention under s 340(1)(a) of the *Fair Work Act* concerning adverse action against Ms Monleon, and whether such an amendment was necessary in light of the existing findings.

The applicant argued that the court should adhere to the parties' pleaded case and the admitted facts in the Amended Statement of Agreed Facts. The court applied the principle that parties should be held to their agreed facts and admissions, and that any amendments to judgments should give effect to the court's intention to abide by those agreements. The applicant submitted that the liability decision's paragraph 257, which referred to Mr Gagate in relation to Halls Gap rostering, should be amended under the slip rule to include Mr Tan, as this reflected the agreed facts. Similarly, the applicant contended that no amendment was required to paragraph 327(a) concerning Ms Monleon, as the existing findings and proposed orders accurately reflected the court's determination that the contravention of s 340(1)(a) was limited to Mr Tan in relation to the direction to under-record hours.

The court's decision was to make orders consistent with the parties' Minute and the admitted facts, including declarations of contravention for rostering failures at Halls Gap in respect of both Mr Gagate and Mr Tan, and at Queanbeyan and Taree in respect of Mr Tan. The court also confirmed that no amendment was necessary to the finding regarding adverse action against Ms Monleon, as the existing findings and proposed orders accurately reflected the court's determination.