Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors

In the Federal Circuit and Family Court of Australia, Judge O'Sullivan considered a dispute brought by the Fair Work Ombudsman against NSW Motel Management Services Pty Ltd and two individuals, Mr. and Mrs. Davies. The Ombudsman alleged that the respondents had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to keep accurate and complete employee records and by issuing payslips that did not accurately reflect the employee's entitlements. The core of the dispute concerned the alleged underpayment of two employees, a receptionist and a cleaner, who were employed by NSW Motel Management Services.

The court was required to determine whether NSW Motel Management Services Pty Ltd had contravened section 557 of the *Fair Work Act* by failing to keep and retain employee records as required by section 535 of the Act. Additionally, the court had to ascertain whether the respondents had contravened section 539 of the Act by issuing payslips that did not accurately set out the employee's entitlements, and whether the two individual respondents, Mr. and Mrs. Davies, were knowingly concerned in, or party to, these contraventions.

Judge O'Sullivan found that NSW Motel Management Services Pty Ltd had indeed contravened section 535 of the *Fair Work Act* by failing to keep accurate and complete records for the two employees, and had also contravened section 539 by issuing payslips that did not accurately reflect their entitlements. The court applied the principles of statutory interpretation to the relevant provisions of the *Fair Work Act*, focusing on the objective requirements for record-keeping and payslip accuracy. Crucially, the court determined that Mr. and Mrs. Davies were knowingly concerned in, and party to, the contraventions by the company, based on their roles in managing the business and their knowledge of the employment arrangements and the inaccurate record-keeping and payslip practices.

Consequently, the court ordered NSW Motel Management Services Pty Ltd to pay a penalty of $10,200 for the contraventions of section 535 and $10,200 for the contraventions of section 539. Mr. and Mrs. Davies were each ordered to pay a penalty of $2,040 for their involvement in the contraventions. The court also ordered the respondents to rectify the underpayments to the two employees, totalling $10,000.