Federal Court of Australia
Scarati v Republic of Italy [2023] FCA 1264
ORDERS
Applicant | ||
AND: | REPUBLIC OF ITALY (MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL COOPERATION - MELBOURNE CONSULATE) Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The parties confer and provide to Chambers draft orders, if agreed, which reflect these reasons.
2. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THOMAS J:
INTRODUCTION
1 The applicant in this proceeding, Mr Antonio Scarati, has made various claims against his employer, the Republic of Italy (the Republic), the respondent.
2 By his Amended Originating Application dated 28 October 2022, Mr Scarati sought declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the imposition of civil penalties for alleged contraventions by the Republic of various provisions of the Fair Work Act 2009 (Cth) (FW Act), an order for compensation under s 545(2) of the FW Act, and damages for breach of contract by reason of an alleged underpayment of wages by the Republic.
3 The declaratory relief sought by Mr Scarati related to several matters raised in his Amended Statement of Claim, namely, the terms of his contract of employment, his entitlement to long service leave, superannuation, and the application of a modern Award to his employment. The alleged contraventions of the FW Act also arose from these matters.
4 Prior to the commencement of the hearing, the parties jointly proposed that the issues of liability and relief be heard and determined separately. I agreed that this was the appropriate course.
5 This judgment concerns the liability aspect of the proceeding.
FACTUAL BACKGROUND
6 There is a limited factual contest as the parties agreed upon a large number of facts relevant to Mr Scarati’s claims, as set out in a Statement of Agreed Facts dated 26 October 2022.
7 The only factual contest related to the duties which are, and were, performed by Mr Scarati at the Melbourne Consulate.
8 The background facts which are relevant for present purposes are set out below. Facts which directly concern any one of Mr Scarati’s claims are set out where that claim is addressed in the judgment.
The parties
9 Mr Scarati is an employee of the Republic and is currently employed on a full time basis at the Republic’s Consulate in Melbourne, Victoria. Prior to commencing his employment at the Melbourne Consulate in 2008, Mr Scarati was employed at the Republic’s Consulate in Perth, Western Australia.
10 The Republic is a foreign state for the purposes of the Foreign States Immunity Act 1985 (Cth). By its Amended Defence, the Republic abandoned its invocation of any potential immunities arising under that Act.
11 The parties agreed that Mr Scarati is a national system employee and the Republic a national system employer, as those terms are defined in the FW Act.
The employment contracts
12 On 9 August 2002, Mr Scarati entered into a written contract of employment with the Republic to work at the Republic’s Perth Consulate (Perth Contract).
13 The Preamble to the Perth Contract contained the following statement (as translated into English):
In compliance with the provisions under sub-section II, section title VI of the [Italian] Presidential Decree nr.18 of the 05/01/1967 and subsequent amendments and inclusions- in particular the [Italian] Legislative Decree of 07/04/2000, no. 103, as well as “The [Australian] Department of Foreign Affairs and Trade Certified Agreement 2002-2003”, the Italian Consulate in Perth appoints Mr. Antonio Scarati, an Italian citizen, born in [XXXX] on the [XXXX], [Italian] tax-file number [XXXX], (fiscal resident of the Municipality of Milan, Lombardy [Italy]), an Australian resident since [XXXX], based on the following terms and conditions to which Mr. Scarati declares to adhere entirely.
14 Pursuant to the Perth Contract, Mr Scarati was employed at the Perth Consulate on a full time basis from 2 December 2002 to 30 June 2008.
15 During this period, Mr Scarati was paid in Australian dollars. His pay rate upon commencement was $53,172 gross per annum.
16 On 12 February 2008, the Republic and Mr Scarati entered into a second written contract of employment for Mr Scarati’s work to be based at the Republic’s Melbourne Consulate (Melbourne Contract).
17 Pursuant to the Melbourne Contract, Mr Scarati has been (and continues to be) employed at the Melbourne Consulate on a full time basis since 1 July 2008.
18 The Preamble to the Melbourne Contract was as follows (as translated into English):
In compliance with the provisions under sub-section II, section title VI of Decree No. 18 of 05.01.1967 - by the President of the Italian Republic and subsequent amendments and inclusions - with particular reference to Legislative Decree No.103 of 07.04.2000, as well as the [Australian n.d.t.] Department of Foreign Affairs and Trade Certified Agreement 2006-2009, the Italian Consulate General in Melbourne appoints Mr. Antonio SCARATI, an Italian citizen born in [XXXX] on [XXXX], [Italian n.d.t.] tax file number [XXXX] (resident for tax purposes of the Municipality of Milan, Lombardy [Italy n.d.t.]), and an Australian resident since [XXXX], on the following terms and conditions to which Mr. Antonio SCARATI declares to agree entirely.
19 The Melbourne Contract included the following terms:
ARTICLE I (1)
(CONTRACTUAL DUTIES)
Mr Antonio SCARATI is employed mainly as an Administrative Assistant to the Consulate’s Visa Department, but could be transferred to other departments or be assigned to duties which are appropriate for the same type of professional role even if they are other than those he would usually perform at the discretion of the Consulate General.
Whenever deemed necessary, due to the demands and requirements of the position, the Consulate General may deploy him to different duties rather than those aforementioned.
…
ARTICLE III (3)
(REMUNERATION)
Mr. Antonio SCARATI will be entitled to a base annual salary of Euro 33,960.15. No taxes will be withheld by the Italian Treasury from said salary pursuant to section 19 of the Convention between the Italian Republic and Australia, signed in Canberra on 14.12.1982 to avoid double taxation on income and assets and to prevent tax evasion. The Convention came into force in Italy in 1985 after the declaration of Parliament Act No. 292 of 27.05.1985.
The annual base salary is established according to the criteria and the limits set out in the first paragraph of section 157 of the Decree by the President of the Republic No. 18 of 05.01.1967.
The annual base salary is subject to revision according to the second paragraph of section 157 of the Decree by the President of the Republic No. 18 of 05.01.1967.
The annual base salary is paid in arrears as twelve deferred monthly instalments, inclusive of the Christmas bonus, which is already included in the salary.
The employee will receive family allowances, if he is entitled to them, as stipulated under section 157 bis of the Decree by the President of the Republic No. 18 of 05.01.1967.
20 Further, Article IV (4) dealt with social security entitlements, Article VII (7) dealt with work-related travel, Article VIII (8) dealt with leave entitlements, Article IX (9) dealt with sick leave, Article XI (11) dealt with other paid leave and Article XIV (14) dealt with disciplinary measures.
21 The parties agreed that the Republic was, at all relevant times, bound to observe the Decree by the President of the Republic No. 18 of 05.01.1967 (1967 Presidential Decree), and the Legislative Decree No. 103 of 7 April 2000 (2000 Legislative Decree).
22 The 1967 Presidential Decree was not put into evidence. It was common ground that the 2000 Legislative Decree substituted the relevant parts of the 1967 Presidential Decree.
23 An agreed interpretation of aspects of the 2000 Legislative Decree included the following:
Section 1.
1. Title VI of Presidential Decree No. 18 of 5 January 1967, n. 18, is substituted by the following:
“Title VI”
Locally engaged staff to Diplomatic Missions, Consular offices and Institutes of Culture.
Section 152 (Quota and duration of contract). – Diplomatic Missions Class a (with a Consul-general: translator’s note) Consular offices and Institutes of Culture can employ locally engaged staff in order to fulfil their service needs, subject to the approval of the Central administration, with a limited number of employees that must not exceed 1,827 for Diplomatic Missions and Consular offices and 450 for Italian Institutes of Culture overall. Locally engaged staff carry out their duties according to the individual contracts based on the work organization existing in Italian offices abroad.
The contract of employment is on a permanent bases with a trial period of nine months (9). At the expiry of such period, based on the office supervisor’s opinion, the contract is either confirmed or terminated.
Section 154 (Contract Framework). – Even though this is not specifically regulated under this Title, contracts fall under local laws. Although both general and conventional International laws are applicable, the local legal system shall be referred to any dispute which may arise from the application of this decree.
Diplomatic Missions or, in their absence Consular offices - Class a (with a Consul-general: translator’s note) will consult with the local Union representative/s working at the venue and will ensure that the contract is compatible with local laws and legislations and that the most favourable conditions are applied in favour of the employee in lieu of the provisions of this Title. The conditions of the contract must guarantee and incorporate all favourable entitlements.
Section 157 (Remuneration). – The base annual salary is established on the basis of each individual contract and must consider the local labour market, the cost of living, and above all, the salaries paid by the Diplomatic Missions, consular offices, and cultural institutions of other countries, particularly UE countries, and International organizations. Also any indication given annually by Union Organizations will be taken into account. The remuneration must be congruent and adequate to guarantee the incorporation of all favourable elements.
The base annual salary is susceptible to revisions based on the terms of the above paragraph and the living trend.
The base annual salary is determined by countries and equal duties. A different remuneration may be allowed in exceptional circumstances, in the same country, where in different posts a considerable difference exists in the cost of living.
Remuneration is usually paid in local currency, unless for particular reasons another currency is required. For the purpose of this title, the corresponding amount of Italian lire of the remuneration paid abroad is calculated according to a comparison rate established in sec 209.
Section 158 (Providence and Health Care). – Providence is to local laws, including International current conventions and agreements . Where there is no local superannuation provisions or where they are insufficient, locally engaged staff can, upon request, be insured with Italian or foreign Insurance Companies.
Locally Engaged Staff holding Italian citizenship may opt for the application of Italian providence legislation.
In regards to Health Services are concerned, they are to be provided in the manner which is compulsory according to local laws. Where the local laws do not provide for compulsory Health cover, or where the provisions are clearly insufficient, locally engaged staff will be provided with health cover in regards to sickness and maternity Italian or Foreign Insurance Companies, within the limitations of health services guaranteed in Italy by the National Health Service. The insurance policy must include the dependant spouse who is living with the employee, as well as their children until they reach the age of twenty six (26), as long as they are also dependent and living at home.
Section 158-bis (Workers compensation and occupational Health and Safety). – Offices located abroad must insure their locally engaged staff for accidents in the workplace and health and safety according to the local laws and including current international conventions and agreements. Where local laws does not include any form of protection against accidents in the workplace and occupational health and safety, or if provisions are clearly insufficient, locally engages staff will be insured through Italian or Foreign Insurance Companies with the equivalent cover guaranteed of employees working in Italy in similar duties.
Locally engaged staff holding Italian citizenship may, upon request, opt for workers compensation and occupational health and safety against accidents in the workplace and occupational diseases as provided for by the Italian legislation.
Employment will be terminated once the inability to carry out the duties set out in the contract has been clearly established.
Section. 161 (Retirement). – Locally engaged staff will cease working, as well as for the reasons set out in this Title according to local laws, on the first day of the month after they turn 65 (sixty five). An exception can be made when the local legislation sets different age limits.
(bold, italics and errors in original)
24 At all material times during Mr Scarati’s employment at the Melbourne Consulate, the Republic paid Mr Scarati his gross wage, on a monthly basis, in Euros.
25 Under the “Preamble” heading in both contracts, reference was made to:
(a) “sub-section II, section title VI of Decree No. 18 of 05.01.1967 - by the President of the Italian Republic and subsequent amendments and inclusions”;
(b) “Legislative Decree No.103 of 07.04.2000”; and
(c) “[Australian n.d.t.] Department of Foreign Affairs and Trade Certified Agreement 2006-2009” (2006 DFAT Agreement).
26 The parties agreed that Mr Scarati’s role at the Melbourne Consulate is described as an “Administrative Assistant”. It was also agreed that, in a document entitled “Decree of Appointment of Consular Duties”, which was issued by the then Consul-General, Mr Scarati was described as a “local employee at the executive level”.
27 The Republic disputed the scope and seniority of Mr Scarati’s role and duties. I will consider the factual question of the duties performed by Mr Scarati further below.
THE PLEADED CASE
28 As mentioned above, Mr Scarati sought various forms of relief in his Amended Originating Application. The claims which formed the basis for that relief were set out in an Amended Statement of Claim dated 28 October 2023.
29 First, Mr Scarati alleged that, upon a proper construction of the Preamble to the Melbourne Contract, his employment was regulated (in addition to the terms of the Melbourne Contract) by the 1967 Presidential Decree and the 2000 Legislative Decree.
30 Mr Scarati asserted that, by reason of this construction, the Melbourne Contract incorporated by reference the relevant terms and conditions of employment contained in the 2006 DFAT Agreement and any subsequent replacement agreements.
31 As a result, Mr Scarati submitted that the Republic failed to pay him wages in accordance with the 2006 DFAT Agreement rate applicable to his duties, and therefore had failed to pay him in accordance with the Melbourne Contract. This gave rise to an alleged contravention of s 323 of the FW Act by the Republic.
32 Second, Mr Scarati pleaded that, on and from 1 January 2010, his employment was regulated by the Clerks – Private Sector Award 2010 (Clerks Award) or, alternatively, the Miscellaneous Award 2010 (Miscellaneous Award), and any subsequent replacement awards.
33 By reason of the duties he performs, Mr Scarati pleaded that he is properly classified as a Level 5 employee under the Clerks Award, or a Level 4 employee under the Miscellaneous Award. He submitted that the Republic had failed and/or refused to pay to him the 17.5% annual leave loading he is entitled to under the Clerks Award or, alternatively, under the Miscellaneous Award.
34 This gave rise to an alleged breach of cl 32.3 of the Clerks Award or, alternatively, cl 21.3 of the Miscellaneous Award, and a resulting contravention of s 45 of the FW Act.
35 Third, he pleaded that:
(a) from 2 December 2002 to 31 December 2012, the Republic failed to pay his superannuation guarantee charges as required by the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act). By that failure, the Republic engaged in conduct defined as an “individual guarantee shortfall”, as that term is defined in s 19 of the SGA Act. As a result, the Republic is liable to pay a “general interest charge” pursuant to s 49 of the SGA Act; and
(b) from 1 January 2013 to 30 June 2020, the Republic refused and/or failed to make superannuation employer contributions to Mr Scarati’s nominated superannuation trust fund, in breach of the SGA Act.
36 Fourth, Mr Scarati pleaded that his employment is covered by the Long Service Leave Act 1992 (Vic) (1992 LSL Act) and the Long Service Leave Act 2018 (Vic) (2018 LSL Act) and that the Republic has wrongfully denied that he has accrued, or is entitled to accrue, any paid long service leave.
37 Finally, Mr Scarati alleged the Republic had contravened:
(a) s 535(3) of the FW Act, with reference to reg 3.42(3)(b) of the Fair Work Regulations 2009 (Cth) (FW Regulations), by its failure to make available to him certain employee records for inspection; and
(b) s 535(2)(a) of the FW Act, with reference to reg 3.31(2)(a) of the FW Regulations, by its failure to make and keep the employee records in a legible form and in the English language.
38 By its Amended Defence dated 2 November 2022, the Republic admitted that:
(a) Mr Scarati’s employment was regulated by the Miscellaneous Award and its successor, the Miscellaneous Award 2020; and
(b) from at least the commencement of the operation of the FW Act on and from 1 July 2009, the Republic had failed to keep and maintain employee records in relation to Mr Scarati in the English language in breach of reg 3.31(2)(a) of the FW Regulations.
OVERVIEW OF CLAIMS
39 Adopting the approach taken by the parties at the hearing and in their written submissions, the remaining disputed claims can be described by reference to the following overarching contentions:
(a) First, Mr Scarati claimed that the Republic was in breach of the Melbourne Contract by underpayment of wages. In particular, he claimed that the Republic had failed to pay him in accordance with the rates described in the 2006 DFAT Agreement. The primary question which arises in relation to this claim is whether the Melbourne Contract incorporated the terms of the 1967 Presidential Decree, the 2000 Legislative Decree and/or the 2006 DFAT Agreement (the Contract Underpayment Claim).
(b) If the Contract Underpayment Claim was made out, Mr Scarati claimed further that the Republic has contravened s 323 of the FW Act (s 323 FW Act Claim).
(c) Second, Mr Scarati claimed that the Clerks Award applied to his employment with the Republic. If the Clerks Award does apply, he submitted that he was entitled to 17.5% annual leave loading, which the Republic had failed and/or refused to pay to him, in contravention of s 45 of the FW Act. If it was found that the Clerks Award did not apply, he prosecuted the same specie of breach under the Miscellaneous Award (the Award Coverage Claim).
(d) Third, Mr Scarati sought a declaration of a breach of the SGA Act by reason of the Republic’s failure to make employer superannuation contributions for Mr Scarati’s benefit between 2002 and 2013 (the Superannuation Claim).
(e) Fourth, Mr Scarati sought a declaration that he had accrued a right to paid long service leave under the 1992 and 2018 LSL Acts during his employment with the Republic (the Long Service Leave Claim).
(f) Finally, Mr Scarati claimed that the Republic contravened reg 3.42 of the FW Regulations when it refused to permit inspection or copying of the employee records by Mr Scarati’s solicitors upon written request from them(the Employee Records Claim).
40 Broadly, the Republic sought to defend each of these claims as follows:
(a) In relation to the Contract Underpayment Claim, it submitted that none of the 1967 Presidential Decree, the 2000 Legislative Decree or the 2006 DFAT Agreement had contractual force or were incorporated into the Melbourne Contract. As a result, there was no underpayment of wages and the s 323 FW Act Claim must fail.
(b) In relation to the Award Coverage Claim, the Republic admitted that the Miscellaneous Award applied to Mr Scarati’s employment, but denied that the Clerks Award applied as a matter of construction of that Award.
(c) In relation to the Superannuation Claim, the Republic admitted that it failed to comply with the SGA Act between 2002 and 2013. However, it opposed the relief sought by Mr Scarati on the basis that he had no standing to obtain declaratory relief.
(d) In relation to the Long Service Leave Claim, the Republic admitted that Mr Scarati has accrued an entitlement to long service leave. However, it opposed the relief sought by Mr Scarati on the basis that this Court does not have jurisdiction to determine the claim.
(e) In relation to the Employee Records Claim, the Republic submitted that it was not unreasonable for it to seek written authority from Mr Scarati before providing the requested employee records. In circumstances where such authority was never provided by Mr Scarati, the Republic contended that it did not contravene the FW Regulations.
41 The first claim occupied a substantial part of the hearing and the submissions put forward by the parties.
THE CONTRACT UNDERPAYMENT CLAIM
Overview
42 Mr Scarati advanced a contractual claim asserting an underpayment of wages by the Republic, which was based upon a construction question. In his closing submissions, Mr Scarati framed this as follows: “Did the [Melbourne Contract] make a promise as to pay parity with local public service terms and conditions?”.
43 The issue turns on whether the 1967 Presidential Decree, the 2000 Legislative Decree and the 2006 DFAT Agreement were incorporated into the Melbourne Contract.
44 If these documents were incorporated, then further questions arise for determination. If they were not, that is the end of this aspect of the matter.
45 Between his outline of opening submissions and by the time of the hearing, Mr Scarati reframed his submissions in respect of the Contract Underpayment Claim.
Principles of construction
46 The principles governing the construction of a contract (such as the Melbourne Contract) were not in dispute.
47 The terms of the contract are determined objectively and not by reference to the subjective intentions of the contracting parties (Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165; [2004] HCA 52 (Toll) at [40]-[41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46] per French CJ).
48 Whether a document is incorporated into the terms of a contract depends upon the language used in the contract. As to the language used, the approach taken is to consider what a reasonable person in the position of the parties would have understood on a fair reading of the words used by the parties to record the terms (Toll at [40]).
49 If, read in context, the language used objectively discloses an intention that the employer is to be bound by the terms of an external document as a component of the obligations between the parties, an implied obligation to abide by the terms of the incorporated document will be imposed upon the employer (Foggo v O’Sullivan Partners (Advisory) Pty Ltd (2011) 206 IR 87; [2011] NSWSC 501 per Schmidt J).
50 The Victorian Court of Appeal in Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327 identified three questions relevant to whether relevant parts of a procedures document were binding (at [90]):
(a) first, whether the document was incorporated into the contract by express reference;
(b) secondly, if the document was not incorporated by express reference, whether it could be objectively concluded that the parties intended it to form part of the contract; and
(c) thirdly, if the document was part of the contract, whether it could be objectively concluded that the parties intended the relevant part of the document to have contractual effect.
51 As the Full Court observed in Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403; [2014] FCAFC 177 (Romero) (at [55]):
In situations where clear language is used and sufficient emphasis is placed upon the need for compliance (implicitly by both parties) with the terms of a company policy, then especially where that goes to fundamental conditions of employment, such as payment and the method of compliance with external statutory obligations, objectively viewed, the parties would be expected to regard such terms as contractually binding.
52 Hence, when considering whether an external document is incorporated into a contract, it is necessary to consider the text of the contract to determine whether it contains language which clearly indicates an intention to incorporate the document. There must be evidence of sufficient emphasis being placed by both parties on the requirement for compliance with the document.
53 In Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481, Snaden J recently summarised the relevant principles as follows (at [153]):
Whether a policy or other document will be incorporated into a contract of employment will depend on the parties’ intentions as objectively ascertained … In ascertaining the parties’ intentions objectively, the authorities reveal an approach that considers the specific facts and circumstances surrounding the formation of the contract and the contents of the document(s) alleged to be incorporated … In short, each case turns on its own facts.
(citations omitted)
54 The contract must be considered as a whole. Parties generally intend that the various aspects of the arrangements between them will be consistent and have a harmonious effect. That is a factor which must be taken into account when considering whether there was an intention to incorporate a document. Where the operative terms of the contract are clear and unambiguous, that tells against the incorporation of a document which covers the same ground.
55 There are a number of documents to which the parties referred. Details of the relevant contracts are set out in “[t]he employment contracts” section above.
56 The Republic submitted that the Preamble clearly delineated itself from the operative terms – by reference to its title and also its content – and that, whilst recitals can be used as an aide to construction of an operative provision in an agreement, the recitals are not themselves operative. Where the express term of a provision is clear and unambiguous, a recital cannot cut down the operative words.
57 The Republic continued that the Preamble was not a term and could not properly be described as a “Preamble term” as was done by Mr Scarati. The Preamble imposed no obligation on Mr Scarati or the Republic. Underpinning this position was the use of the title “Preamble” and the fact that the Preamble referred to the “following terms and conditions”, which were described as the terms and conditions to which Mr Scarati “declare[d] to agree entirely”.
58 Mr Scarati submitted that the Republic’s submissions regarding the Preamble should be rejected as they did not grapple with what the Preamble sought to achieve, namely “it constructs an architecture obligation by incorporating by reference certain other instruments/documents which, in their language, impose their own clear obligations on the parties”.
59 Mr Scarati further contended that the Court should not determine the meaning and significance of the words used in a contract by simply “relying on some form of taxonomical nomenclature deployed by the parties”. Mr Scarati submitted that the Preamble performed a critical function and it would be erroneous for the Court to construe it as a “mere recital”.
60 In relation to recitals, Mr Scarati referred in oral submissions to the comments made by Lord Esher, MR in Ex parte Dawes. In re Moon (1886) 17 QBD 275, where it was said (at 286):
Now there are three rules applicable to the construction of such an instrument. If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred.
61 The words in question appear at the beginning of the contract under the heading “Preamble”. Whether called “preamble” or “recitals”, typically, this first section of an agreement exists to provide context and may outline the parties’ intentions or purpose in forming the agreement. For that reason, where there is ambiguity in a term of the contract, the contents of that section may provide a guide to resolve ambiguity. Conventionally, operative terms of a contract are not usually to be found in the preamble or recitals section.
62 Of course, the effect of the words used under the heading “Preamble” and what impact they have on the terms of the Melbourne Contract depends upon the text of the Melbourne Contract considered within that document as a whole. To that end, the “taxonomical nomenclature” chosen by the parties (whether it be “Recital” or “Preamble”) is not decisive in its own right. It may, however, contribute to an understanding of the words used.
63 Words used in the documents said to be incorporated into the contract are not relevant to this threshold question. They do not go directly to the question of whether there is clear language in the main agreement (in this case the Melbourne Contract) which clearly indicated an intention to incorporate an external document and whether it could be objectively concluded from the language used that the parties intended the document to be incorporated as part of the main agreement.
64 The words used in the Preamble to the Melbourne Contract were, “[i]n compliance with”, and, “with particular reference to”. In the Preamble to the Perth Contract the words “in particular the” were used instead of “with particular reference to”.
65 It is important to consider both of those phrases to determine the intention which was evidenced by the text of the Melbourne Contract.
66 Many of Mr Scarati’s arguments centred on the apparent “intention” revealed by the phrase “[i]n compliance with”. Mr Scarati referred to the definition of “compliance” as being “the act of obeying an order, rule or request” or “conformity in fulfilling official requirements”. Mr Scarati submitted that the expression “[i]n compliance with” made plain the parties’ intention: that the Republic, as a foreign state, would comply with any promise or obligation contained in these other documents as to the employment of Mr Scarati (which Mr Scarati identified as the 1967 Presidential Decree - with particular reference to the 2000 Legislative Decree - and the 2006 DFAT Agreement).
67 Mr Scarati submitted that the introductory words “[i]n compliance with” evidence a mechanism used by the parties with the aim to ensure that Mr Scarati, an employee of the Republic, “was to be treated in a manner substantially similar to (with parity) local Australian employees working for their government in a foreign service department”. Mr Scarati submitted that the Preamble performed a critical function – it was in effect a declaration by the Republic in at least two critical respects:
(a) it contains a promise of compliance with the contents of certain documents/instruments extraneous to the [Melbourne] written contract; and
(b) it operates as a mechanism to set minimum terms that must be observed under the contract – the setting of a floor as it were. The Republic guarantees to the locally employed person that he will be paid congruent with local terms and conditions; that all [locally] favourable entitlements will be made available to … that employee. This is what the Legislative Decree requires.
(italics in original; footnote omitted)
68 Mr Scarati submitted that the parties:
established a certain compliance architecture to be applied by the [Melbourne Contract]: the contract must comply with the Republic’s own legislative decree(s) bearing upon such employment on foreign places. And the point of parity or minimum obligation was set in the relevant [local] DFAT Agreement. The parties achieved this outcome by incorporating by reference certain promises/obligations from these other documents.
69 Mr Scarati referred to the decision in Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193; [2000] FCA 889 (Riverwood) at [103] where the language in a letter of appointment to an employee, that “you agree to abide by” certain policies, was treated as creating enforceable contractual obligations as to payments contained in the policy documents. Mr Scarati submitted that, in this case, the parties recorded “a promise that the Republic would act “in compliance with” obligations in other extraneous documents” (italics in original), which was “clearly synonymous” with the phrase “to abide by”.
70 In my view, those phrases differ in their content, emphasis and context. The words “[i]n compliance with” have no preceding words such as “agree to act” or “will act”. Use of the same context would be to compare “complying with” with language such as “abiding by” or, on the other hand, “agree to comply with” with “agree to abide by”. Comparison with the phrase “you agree to abide by” does not, in my view, assist with the interpretation of the words “[i]n compliance with” in the context in which they appear in the Melbourne Contract.
71 It is important to focus on the particular text. The phrase “in compliance with” suggests a recognition of adherence to a rule or regulation or standard and is in broad terms a general statement of conformity. A phrase such as “agree to act in compliance with” suggests a promise or agreement. This is because the words “agree to act” suggest a positive obligation.
72 The words “[i]n compliance with”, when referring to the 1967 Presidential Decree, are in the nature of a declaratory statement that the arrangements were concluded (and so the terms of the conditions are) in compliance with Italian law, namely the 1967 Presidential Decree.
73 This conclusion is supported by the use of the words “with particular reference to”. The Preamble opens with “[i]n compliance with the provisions under sub-section II, section title VI of Decree No. 18 of 05.01.1967 - by the President of the Italian Republic and subsequent amendments and inclusions”, which is followed by, “- with particular reference to Legislative Decree No.103 of 07.04.2000, as well as the [Australian n.d.t.] Department of Foreign Affairs and Trade Certified Agreement 2006-2009”. Whilst the document is not well, or clearly, drafted, it would seem that the words “with particular reference to” refer to the 2000 Legislative Decree and also the 2006 DFAT Agreement.
74 Both the 1967 Presidential Decree and the 2000 Legislative Decree are laws in place in the Republic of Italy. As mentioned earlier, the parties agreed that the Republic was “bound to observe” both Decrees.
75 It was not asserted (nor is it the case) that the fact a party is bound to observe certain legislation results in that legislation being incorporated as a term (or terms) of the relevant agreement.
76 So far as is relevant to these proceedings, the 2000 Legislative Decree replaced the 1967 Presidential Decree (as stated by section 1 of the 2000 Presidential Decree).
77 The 2000 Legislative Decree altered the previous position as to employment of locally engaged staff in Consular offices. This issue is touched on in Mr Scarati’s affidavit dated 29 August 2022. The 2000 Legislative Decree notes in section 154 that the contract fell under local laws and the “local legal system shall be referred to any dispute which may arise from the application of this decree”. Section 154 continued that there must be consultation with the local union representative and “the contract [must be] compatible with local laws and legislations and that the most favourable conditions are applied in favour of the employee”. The section provided that the conditions of contract “must guarantee and incorporate all favourable entitlements”.
78 As to remuneration, section 157 of the 2000 Legislative Decree prescribed that:
The base annual salary is established on the basis of each individual contract and must consider the local labour market, the cost of living, and above all, the salaries paid by the Diplomatic Missions, consular offices, and cultural institutions of other countries, particularly UE countries, and International organizations. Also any indication given annually by Union Organizations will be taken into account. The remuneration must be congruent and adequate to guarantee the incorporation of all favourable elements.
79 As to salary review, section 157 provided that “[t]he base annual salary [was] susceptible to revisions based on the terms of the above paragraph and the living trend”.
80 Adopting the language used in the Preamble, section 157 set out matters to which the Republic must have reference (or must consider, to adopt the term used in the 2000 Legislative Decree) in determining the salary.
81 I conclude that the purpose of this section of the Preamble was to record the background that, in compliance with the provisions of the 1967 Presidential Decree, with particular reference to the 2000 Legislative Decree (which altered the position as it applied under the 1967 Presidential Decree and included in section 157 a list of factors which were considered) and the 2006 DFAT Agreement (which was considered with the other factors), the Republic appointed Mr Scarati to his role at the Melbourne Consulate.
82 The Preamble continued that “the Italian Consulate General in Melbourne appoints Mr. Antonio SCARATI … on the following terms and conditions to which Mr. Antonio SCARATI declares to agree entirely”.
83 It is significant that the Preamble referred to the terms and conditions which follow and to which Mr Scarati declared to agree entirely. Those words distinguished the Preamble from the terms and conditions which followed.
84 The words used set out the background (that the appointment was in compliance with the relevant legislation and consideration had been given to relevant factors), the parties’ intentions, and the purpose of the Melbourne Contract, which was to appoint Mr Scarati on terms and conditions (which are said to follow) with which Mr Scarati “declare[d] to agree entirely”.
85 Neither of the phrases “[i]n compliance with” or “with particular reference to” suggest the parties intended that the reference to the 2006 DFAT Agreement operated as a mechanism to set minimum terms that must be observed under the contract – the setting of a floor. There was no clear language (or indeed any language at all) to that effect.
86 Mr Scarati submitted that the following words which appear in the 2000 Legislative Decree were critical:
(a) “[t]he conditions of contract must guarantee and incorporate all favourable entitlements”; and
(b) “[t]he remuneration must be congruent and adequate to guarantee the incorporation of all favourable elements”.
87 Mr Scarati submitted that these words conveyed an obligation or promise and that the 2000 Legislative Decree was clear in its intent and the imposition of an obligation on the Republic when it employs persons in foreign locations. That conclusion may be correct insofar as it refers to obligations which arise independently under the 2000 Legislative Decree. Any determination based on, or as to, that obligation is not before the Court in these proceedings.
88 The parties have agreed that the Republic was bound by the requirements of the 2000 Legislative Decree. There was no need to incorporate it into the contract to impose its requirements. It is not persuasive as to whether the parties intended that external documents be incorporated in the Melbourne Contract.
89 To identify the effect of the Melbourne Contract, the primary focus is to consider the words used in the document itself to determine whether the text of that document is obligatory or promissory in nature by reference to the documents which were asserted to be incorporated. As I have already said, it does not assist to consider what is said in the allegedly incorporated document.
90 The language of the Preamble is different from, and can be contrasted with, the language used in cases where the Court has found that relevant instruments were incorporated in the primary contract by reference.
91 In Riverwood, a letter of offer dealing with various key terms of employment was signed by the employee. This letter included the words: “You agree to abide by all company policies and practices currently in place, any alterations made to them, and any new ones introduced”. North J (in the majority) concluded (at [107]-[108]) that the clause was intended to oblige the employee to comply with the obligations outlined in the policies.
92 In Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62; [2007] FCAFC 120, the employee was required to read and sign various forms contained within a lengthy document entitled “Working with us” which was handed to the employee. The Court held that certain sections of the document were incorporated into the employment contract. Significant to the Court’s conclusion was the fact that the employee was required to sign certain of those sections, and the obligatory language that was used, for example, that “[the employer] will take every practicable step to provide and maintain a safe and healthy work environment for all people”.
93 In Romero, the employee was asked to read and sign a company policy and the letter of engagement contained a statement that all “policies are to be observed at all times”. The Full Court held (at [56]) that this language made it clear that there was “an expectation by the company that there [would] be mutual obligations”.
94 In each case, the parties exhibited, through their conduct and also the express language used in each agreement, that they objectively intended to incorporate the external documents into the contract of employment.
95 In this case, the Preamble did not contain the mandatory or promissory language which would lead me to a conclusion that mutual obligations were being created. There was no mandatory language that the Republic must comply with the 2006 DFAT Agreement, it was not attached to the Melbourne Contract, there was no acknowledgment of either party having read the 2006 DFAT Agreement, and the 2006 DFAT Agreement was not initialled or signed.
96 One of the terms and conditions of the Melbourne Contract dealt with “remuneration” (Article III) as follows:
(a) the base annual salary is specified as Euro 33,960.15;
(b) the annual base salary is said to be established “according to the criteria and the limits set out in the first paragraph of section 157 of the [1967 Presidential Decree]”; and
(c) the annual base salary is subject to revision according to the second paragraph of section 157 of the 1967 Presidential Decree.
97 The terms of Article III are clear and unambiguous. They do not refer to the 2006 DFAT Agreement and the salary requirements are not connected with the 2006 DFAT Agreement in any way. There was no reason for the parties to incorporate external documents when the terms of the primary document are clear and unambiguous.
98 Considering the Melbourne Contract as a whole, there are other terms which are inconsistent with those contained in the 2006 DFAT Agreement. For example, the Melbourne Contract deals clearly with reimbursement for work-related travel, allowances for annual leave and rostered days off, sick leave and disciplinary measures (including possible withholding of salary) in ways which are not consistent with the provisions contained in the 2006 DFAT Agreement. The parties cannot have intended to create inconsistencies within the framework of the terms and conditions of employment.
99 Viewed objectively, a reasonable person in the position of each of the parties would have understood that the terms and conditions of employment, including as to remuneration, were those contained in the Articles of the Melbourne Contract.
100 Mr Scarati contended that his construction was informed by certain surrounding circumstances. In dealing with the surrounding circumstances, Mr Scarati pointed to the fact that he had previously worked for the Republic in Perth under the Perth Contract, which was close to identical to the Melbourne Contract with which he would later be provided by the Republic. Mr Scarati noted that his starting salary under the Perth Contract was slightly higher than the pay rates for an Australian Public Service [APS] Level 6 employee under the then current DFAT Agreement. He also pointed to his earlier employment in the APS prior to 2002. Mr Scarati asserted that these circumstances were part of “a certain provenance” to the Melbourne Contract.
101 Mr Scarati noted that, as early as June 2004, he made a claim in writing to the Republic that he was not being accorded the same rights and entitlements of those persons entitled to the terms and conditions of the then current DFAT Agreement. Mr Scarati submitted this evidenced he considered that the written terms of the Perth Contract entitled him to pay parity or equivalence with locally employed Australian public servants covered by the 2006 DFAT Agreement. Mr Scarati again made a request for pay parity with local conditions in December 2004.
102 Of course, Mr Scarati’s subjective view is not a factor to be taken into account.
103 The communications between the parties were as follows.
104 On 10 June 2004, Mr Scarati communicated with the Italian Ministry of Foreign Affairs (the Ministry), the Ambassador of Italy in Canberra and the Consul of Italy in Perth. The communication arose, as explained by Mr Scarati in his affidavit dated 29 August 2022, because of a concern by Mr Scarati that his contract did not provide the same benefits as other colleagues who were locally employed, but whose contracts were based upon Italian law, having been entered into prior to the 2000 Legislative Decree.
105 The communication (as translated into English) included the following:
…
having regard to
[the fact] that my contract (PREAMBLE) has been drawn up in accordance with:
a. Presidential Decree 05 January 1967 No.18 Part II Title VI as amended;
b. Legislative Decree of 07 April 2000 No. 103;
as well as the
c. Workplace Relations Act 1996;
d. Certified Agreement 2002-2003 of the Australian Department of Foreign Affairs and Trade (DFAT); and,
notwithstanding
Article 157 paragraphs 2 and 3 of Legislative Decree 07 April 2000 No. 103 states that:
(ii) The annual base salary is subject to revision in relation to changes in the terms of reference referred to in the preceding paragraph and to the trend in the cost of living.
(iii) The annual basic salary shall be determined in a uniform manner. by country and by homogeneous tasks [Read: employment level]. Exceptionally, a different remuneration may be allowed in the same country for those places where there is a particularly wide difference in the cost of living.
there are
inequalities for homogeneous tasks in clear conflict with Article 154 above,
I hereby request
that my contract be aligned all in all with that currently in force for local employees governed by Italian [employment] law.
Alternatively,
As per provisions of Art. 154 of the aforementioned Law 103/00 “… the application of local legislation more favourable to the employee …” I request that I be accorded the same rights and criteria of employment as those provided for employees of the Australian Department of Foreign Affairs, as per the “Certified Agreement” and the “Workplace Relations Act 1996” referred to above.
…
(bold and italics in original)
106 The Ministry’s reply was received by Mr Scarati on 23 November 2004. In the reply, reference was made to the difference in conditions between local employees employed under the 2000 Legislative Decree and those local employees employed before that time.
107 The reply (as translated into English) concluded:
Mr. Scarati’s contract of employment conforms to the draft prepared on the basis of the elements supplied by that Embassy [Canberra] and approved by this Ministry.
In view of the foregoing, it is considered that there is no violation of Article 157 of Presidential Decree 18/67 on the subject of unequal pay between employees with similar duties serving within the same country, and that the remuneration paid to Mr. Scarati was correctly fixed in accordance with the regulations in force.
…
108 On 2 December 2004, Mr Scarati again communicated with the Ministry, the Ambassador of Italy in Canberra and the Consul of Italy in Perth as follows:
…
In drafting the above contract it is clear that the Embassy of Italy in Canberra has included the then existing Certified Agreement (read national collective agreement) 2002 - 2003 of the [n.d.t Australian] Department of Foreign Affairs and Trade (DFAT) since in compliance with the privacy of individuals and the confidentiality of employers, to attain reliable information for the purposes satisfying of the terms and conditions referred on the first paragraph of Art. 157 Presidential Decree 18/67 is an exercise to the limit of the impossible.
In absence of a transparent and official salary benchmark of a remunerative and professional nature that does not give ground to incompatibility with local regulations and does not give grounds to disputes, in order to satisfy the criteria set out in the first paragraph of the aforementioned Art. 157 and in compliance with the provisions laid down for the stipulation of contracts to be carried out on locally hired personnel, the Embassy of Italy in Canberra has appropriately referred to the conditions of employment envisaged and the remuneration paid to an employee of the Department of Foreign Affairs and Trade who carries out similar administrative duties to those of a level B2 employee of the Ministry of Foreign Affairs. In this case, a level 2 Public Affairs Officer (PA0-2) [APS 6 – reference to pay point DFAT agreement 2002 -2003];
It is in my opinion that theses contrary to the foregoing would contradict the inclusion of the rules and parameters of the “DFAT Certified Agreement” in my employment contract.
…
I hereby request;
that the superior Ministry apply, with retroactive effect on to the date of my employment, the full implementation of the following local regulations which are an integral part of my individual contract, of which a copy is attached:
1. “Workplace Relations Act 1996”
2. Certified Agreement 2002-2003 of the Department of Foreign Affairs and Trade” and subsequent updates as a result of Sec. 170LX 2.a and 2.b of the Workplace Relations Act 1996
…
(italics and errors in original)
109 On 21 July 2005, Mr Scarati received a reply from the Ministry:
In regards to the application in question, we shall point out that, after careful examination of the documents in on file at this Office, Mr Scarati’s contract of employment appears to be in conformity with local legislations, while [Mr. Scarati’s] request does not appear to be sufficiently substantiated.
We would be grateful if you would invite the employee in question to indicate expressly the local rules which have not been applied in his contract.
…
(errors in original)
110 Mr Scarati was asked about these communications in cross-examination and re-examination.
111 In cross-examination it was put to Mr Scarati that the Ministry rejected the complaint (by way of the communication of 21 July 2005). Mr Scarati agreed.
112 Mr Scarati did not agree, however, that the response from the Ministry was a rejection of an assertion that the 2006 DFAT Agreement should have governed the position. His comment was: “So the ministry has not come back – if you – if you have read the ministry’s reply, there is no mention about DFAT agreement. So your statement that the ministry has said, no, it does not apply”.
113 Mr Scarati’s cross-examination then continued as follows:
[MR TIERNEY]: Did you have any reason at the time of signing the Melbourne contract - - -?---Yes.
- - - to think that the ministry would entitle you to benefits under the DFAT agreement?---No. The preamble was more or less the same thing, the – the same text that it was in Perth.
Yes?---And my priorities at the time, I was just going through a very contentious divorce issue and I had children, so for me the priority back then was to secure a job here in Melbourne where my ex-wife had moved with three children under the age of five, rather than disputing what it is in there, so yes.
Sorry. Yes to what, Mr Scarati?---Yes, I – I knew what it – what it said, the – the preamble.
Yes?---And I accepted it. Yes, sir.
Yes. And you accepted that contract on that understanding?---Absolutely. Yes, sir.
And so it’s correct, isn’t it, that when you signed that agreement you understood that the DFAT agreement did not form part of your employment contract?---No, no. It was part of the preamble. It doesn’t say it is – it doesn’t apply. That’s what - - -
Okay. So you maintained your legal argument – your belief that legally you had that entitlement; is that what you’re saying?---Reading the Italian – the – the document in Italian, yes, sir.
But that was in spite of what you had been told by the ministry about the previous preamble?---As I said, the ministry didn’t got into the discussion of the DFAT agreement, sir.
114 The matter was also dealt with in re-examination. Mr Scarati was asked: “So is it fair to say in that context – and we’re going back to 2003 or ’04 here, 2004 – you never accepted the ministry’s position on these matters, did you?” Mr Scarati’s answer was: “No, sir”.
115 The questioning revealed what might have been Mr Scarati’s subjective impression.
116 Counsel on behalf of Mr Scarati acknowledged that “subjective understandings are not admissible”, but submitted that part of the case remains that the surrounding circumstances in which the contract is signed can be admissible. Counsel continued: “Not subjective in tense, but the surrounding circumstances, in my submission, ultimately will be for the Melbourne contract is a contract that was entered some years earlier over in Perth with the same employer and there was a, sort of, almost an identicality of the preamble – whatever that is – at the time”.
117 I do not think that the circumstances identified in relation to the discussions which were taking place at the time the Perth Contract was in place, and before the Melbourne Contract was entered into, assist Mr Scarati. Insofar as background circumstances may be relevant as surrounding circumstances in which the Melbourne Contract was executed, the background circumstances make it clear that the particular interpretation advanced by Mr Scarati in relation to the Preamble to the Perth Contract was not accepted by the Republic. The response from the Ministry was that Mr Scarati’s request was not sufficiently substantiated. It was rejected.
118 It cannot be said, based on the surrounding circumstances identified, that there was any mutual intention that the 2006 DFAT Agreement would be incorporated into the Melbourne Contract.
119 The Melbourne Contract was entered into after this exchange of communications had taken place. Mr Scarati knew of the view taken by the Republic at the time he signed the Melbourne Contract which, he acknowledged, was in almost identical terms to the Perth Contract.
120 The surrounding circumstances identified by Mr Scarati do not support the conclusion that the parties intended that the 2000 Legislative Decree and the 2006 DFAT Agreement be incorporated into the contractual arrangements between the parties.
Conclusion
121 In the result, by reference to the proposed list of liability questions to be determined, provided to me by the parties, I conclude (as to the questions raised in paragraph 2) that:
(b) Upon its true construction, the Melbourne Contract, in relation to employment at the Republic’s Melbourne Consulate, did not incorporate by reference (and in so doing afford to them contractual force) the following documents identified therein:
(i) the 1967 Presidential Decree;
(ii) the 2000 Legislative Decree;
(iii) the 2006 DFAT Agreement and subsequent agreements, as updated from time to time;
(iv) in view of the ruling as to 2(b)(iii), it is not necessary to answer this question.
(c) In view of the ruling as to 2(b)(iii) it is not necessary to answer this question.
THE AWARD COVERAGE CLAIM
Overview
122 By this claim, Mr Scarati sought a declaration pursuant to s 21 of the FCA Act that, at all material times from 1 January 2010, the Clerks Award applied (and continues to apply) to his employment with the Republic.
123 In the event the Clerks Award does apply, Mr Scarati contended that the Republic breached cl 32.3 of that Award by failing to pay him any annual leave loading. This, he said, amounted to a contravention of s 45 of the FW Act.
124 If the Clerks Award does not apply to his employment, Mr Scarati claimed in the alternative that the Republic breached the Miscellaneous Award for the same failure to pay him any annual leave loading.
125 The Republic admitted that the Miscellaneous Award applied to Mr Scarati’s employment, but denied that the Clerks Award applies.
126 It was common ground that the Republic has never paid any annual leave loading to Mr Scarati under this modern award.
127 Accordingly, the Republic has contravened the Miscellaneous Award 2010 and 2020 by not paying annual leave loading of 17.5% to Mr Scarati.
128 The question to be resolved is whether the Clerks Award applies. If it is established that the Clerks Award applies, the factual question of where Mr Scarati’s duties fall within the scope of that Award can then be considered.
Relevant principles – construction of Industrial Awards
129 Both parties correctly acknowledged that the approach to the construction of industrial awards was recently summarised by the Full Court in King v Melbourne Vicentre Swimming Club Inc (2021) 308 IR 171; [2021] FCAFC 123. In that case, it was said (at [40]) that:
The principles governing the construction of awards are well-established … The construction of an industrial instrument depends on its language, understood in light of its industrial context and purpose: see Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; 138 IR 286 at [2] (Gleeson CJ and McHugh J). In City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379, French J said (most citations removed):
The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words. The words are to be read as a whole and in context.
130 The statement that the interpretation of an award begins with a consideration of the “natural and ordinary meaning of its words” is a well-established principle. That approach is to be taken when interpreting coverage clauses (see, for example, City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (City of Wanneroo) citing Re Clothing Trades Award (1950) 68 CAR 597; and Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) (2019) 284 IR 97; [2019] FCA 37).
131 If there is ambiguity, the award’s history and subject matter may be considered (City of Wanneroo at 378).
132 It has also been said that attention should be given to the meaning intended when the document was drafted, but not so as to disregard the words of the instrument. In Kucks v CSR Limited (1996) 66 IR 182, Madgwick J held:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
(emphasis added)
133 The Clerks Award applies to “private sector employers throughout Australia in relation to employees wholly or principally engaged in clerical work”. The coverage clause (cl 4.1) relevantly states:
This occupational award covers:
(a) private sector employers throughout Australia in relation to employees wholly or principally engaged in clerical work; and
(b) private sector employees who are wholly or principally engaged in clerical work and who are employed by employers mentioned in clause 4.1(a).
Consideration
134 As identified by Mr Scarati, the focal point of the conflict between the parties in relation to the construction of the Award is whether the Award covers Consular officials in light of its reference to “private sector employees”.
135 The coverage of the Clerks Award as to Consular employees has been the subject of a number of decisions. One is the Full Court decision in Republic of Italy v Benvenuto (2018) 261 FCR 19; [2018] FCAFC 64 (Benvenuto).
136 Mr Scarati submitted that I am bound by the Full Court decision in Benvenuto. The Republic, whilst accepting that the decision is persuasive authority, respectfully submitted that the decision was plainly wrong and invited me not to follow it.
137 In advancing that proposition (that I am not bound to follow the Full Court decision in Benvenuto), reference was made to the decision of French J (as his Honour then was) in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 (Hicks). In that decision, French J said (at [75]): “[i]t is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong”. Of course, reference there was being made to a decision of another judge at first instance, not a decision of the Full Court. I do not believe that Hicks is authority for the proposition that it would be open to me to ignore a decision of the Full Court simply because I believed that decision to be plainly wrong.
138 In La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, Burchett J observed (at 204) that:
[T]he practice in England, and I think also in Australia, is that ‘a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance … unless he is convinced that the judgment was wrong’.
139 French J continued to observe in Hicks (at [76]) that:
where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention”.
140 Indeed, in a different context, the Full Court (French, Whitlam and Katz JJ) in Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253; [2001] FCA 1884 held (at [39]-[41]) that it was not open to a single judge of this Court to find that a decision of a Full Court was given per incuriam. That is, a single judge cannot be invited to revisit a decision of a higher court on the basis that not all materials or arguments that could have been put before the Court were put before it.
141 It is not open to me to ignore the decision of the Full Court in Benvenuto by considering whether the Full Court’s decision in Benvenuto is plainly wrong. I am bound by that decision.
142 As a matter of completeness, I will briefly consider the arguments raised by the Republic in support of its contention that the decision in Benvenuto is plainly wrong.
143 In Benvenuto at first instance, the Republic argued before the South Australian Industrial Magistrate that it was not bound by the Clerks Award. The Industrial Magistrate found that each employee was covered by the Clerks Award, notwithstanding any submission that the Republic was not engaged in the private sector in Australia.
144 The Republic appealed, but did not challenge the finding concerning the coverage of the Clerks Award. The point was not argued before the Full Court.
145 As it happened, it was necessary for the Republic to obtain an extension of time to appeal to the Full Court. White J heard the application and granted the extension.
146 After this time, but before the Full Court appeal in Benvenuto was determined and reasons handed down Judge Driver of the Federal Circuit Court of Australia (as it then was) was required to adjudicate a matter in which a former employee (in a Consular office) claimed coverage by the Clerks Award (Kumar v Consulate General of India, Sydney (2018) 329 FLR 90; [2018] FCCA 7 (Kumar)). At the time Kumar was published, Judge Driver did not have the benefit of the reasoning of the Full Court in Benvenuto.
147 Judge Driver preferred the ordinary meaning of the words “private sector” and ruled that the Clerks Award did not cover the claimant. The Republic submitted that this was the correct approach and that it should be followed by me. It submitted that the definition of “private sector” adopted by the Industrial Magistrate at first instance in Benvenuto was excessively broad. The Republic highlighted that, in Benvenuto, the Full Court did not consider the coverage of the Clerks Award, and did not directly consider whether the consulate of a foreign ministry was properly considered part of the “private sector”.
148 In Benvenuto, whilst there was no challenge as to the finding regarding the coverage of the Clerks Award, White J rejected parts of the analysis by the Industrial Magistrate. His Honour said:
18. The Industrial Magistrate reasoned that the Clerks’ Award was applicable because the Republic was, in relation to its employment of the respondents, an “Australian employer” of the kind to which s 35(1)(f) of the FW Act referred. Namely, it was an employer that:
(f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia;
19. No challenge was made to the Magistrate’s conclusion in this respect. However, in my view, s 35(1)(f) did not have any application to the Republic’s activities as an employer of the respondents. The definition in s 35(1) concerns the term “Australian employer” appearing in ss 33 and 34, which are concerned with the employment of persons on Australian ships in and beyond Australia’s exclusive economic zone.
149 However, White J concluded that other provisions of the FW Act indicated the Republic was bound by the Clerks Award. White J observed (at [20]):
Nevertheless, other provisions within the FW Act do indicate that the Republic was bound by the Clerks’ Award in respect of the respondents’ employment. Section 47(1)(a) in Pt 2-1 of the FW Act provides that “[a] modern award applies to an employee [or] employer … if … the modern award covers the employee [or] employer”. Section 42 defines the terms “employee” and “employer” for the purposes of Pt 2-1 as a “national system employee” and a “national system employer” respectively. The effect of ss 30B and 30D of the FW Act is to extend the reach of the term “national system employer” to include any person in a “referring State” so far as “the person employs, or usually employs, an individual”. For the purposes which are presently relevant, South Australia is, a referring State — see Fair Work (Commonwealth Powers) Act 2009 (SA), s 5. In my view, it is by this scheme of provisions that the Republic was bound by the Clerks’ Award in its employment of the respondents.
150 Whilst the question considered by White J was not the subject of any challenge before the Full Court, that aspect of the decision was, of course, central to the outcome. Allsop CJ and Besanko J each agreed with the reasons published by White J.
151 The decision of the Full Court in Benvenuto is not, in my view, plainly wrong. In any event, the decision binds this Court as it is presently constituted.
152 I therefore conclude that the Clerks Award covers Mr Scarati and the Republic.
153 As a result, it is necessary to consider Mr Scarati’s duties, and where they fall within the scope of the Clerks Award.
Mr Scarati’s duties
154 As mentioned above, the parties disputed the duties performed by Mr Scarati in his work for the Republic.
155 Mr Scarati deposed to the nature of the duties he has performed in the Melbourne Consulate at [45]-[46] of his affidavit dated 29 August 2022 as follows:
45 The Melbourne Contract, provides, among other things, that I am engaged as an Administrative Assistant to the Citizenship and Passport Section of the Republic’s Melbourne Consulate. My role as an Administration Officer to the Consular and Visa Department encompasses tasks, including, but not limited to, the following:
(a) reporting on legislative requirements;
(b) assessment of citizenship applications;
(c) assessment of passport applications; and
(d) decision-making on passport and citizenship applications.
46 This was confirmed to me by the Republic in 2017 when I was issued with a document in the Italian language setting out my core or basic duties in the Melbourne consulate:
(a) certificates, attestations, legalizations, and endorsements and certification of copies of documents with the exclusion of issuing citizenship certificates;
(b) validation of driver licences;
(c) electoral matters;
(d) notifications, letters rogatory, declarations and applications;
(e) residual conscription operations;
(f) pensions and health;
(g) receiving and forwarding certificates of the consular registry, births deaths and marriages and citizenship received from local authorities, from Italian citizens and or from ship masters or commanders of aircrafts, excluding authority to issue citizenship certificates;
(h) financial assistance, cash disbursements and repatriation of citizens (preliminary acts);
(i) keeping and updating the consular registers and correspondence in relation to AIRE [Registry of Italians Resident Abroad];
(j) keeping the register of local authorities’ signatures; and
(k) translation and certification concerning legislation and local customs.
(bold and italics in original)
156 At [47], Mr Scarati deposed that he has carried out the above described duties in his work at the Melbourne Consulate since 2008.
157 The Republic did not accept Mr Scarati’s description of his duties. Rather, it submitted that Mr Scarati’s role is clerical and with limited authority.
158 The Republic relied on the evidence of Mr Arturo Camillacci, Deputy Consul-General, as to the roles and duties performed by Mr Scarati. The Republic further submitted the Court should have primary, if not exclusive, regard to the terms of the Melbourne Contract.
159 Mr Camillacci described Mr Scarati’s duties at [35]-[36] of his affidavit dated 20 September 2022 as follows:
35. At paragraph 45 of his affidavit affirmed on 29 August 2022, Mr Scarati states that, according to his employment contract, his role includes four specific tasks: reporting on legislative requirements; assessment of citizenship applications; assessment of passport applications; decision-making on passport and citizenship applications. I respond to this as follows:
(a) Reporting on legislative requirements: As stated above, Mr Scarati tells the applicants which documents are required to process the application. He does not ‘report on legislative requirements.’ He tells applicants, “If you want the application to go through you need to bring these papers.” He doesn’t give legal advice.
(b) Assessment of citizenship applications: Mr Scarati does an initial assessment on the basis of what Mr Scarati tells him at the first interview. But he does not assess the application. He does not make a decision. I am the one who decides whether to approve an application.
(c) Assessment of passport applications: I believe Mr Scarati worked on passport applications before he worked with me. I can’t speak on this because I was not in Australia. Mr Scarati has a limited delegation to approve routine renewals of passport applications – where no further documentation or consideration is required. Mr Scarati cannot make final decisions on whether to grant a passport. The approval can only be signed by the Consul-General or somebody who has been delegated that power. The person to whom the power is delegated must be a Ministry employee. It cannot be a local employee. This is according to the Foreign Ministry Regulations.
(d) Decision-making on passport and citizenship applications: This is not accurate. Mr Scarati cannot make a decision on whether to grant a person’s citizenship or passport application, as I explained above. If there is a straightforward case, Mr Scarati may to a person that they have grounds to apply, but the file has to be passed to me and I am the one who makes the decision.
36. At paragraph 46 of his affidavit, Mr Scarati stated that he was issued with a document in the Italian language setting out his core or basic duties in 2017. He states that since 2008 he has carried out these duties in his work at the Melbourne consulate. I have considered whether Mr Scarati in fact performed these duties. My response is as follows:
(a) Certificates, attestations, legalizations, and endorsements and certification of copies of documents with the exclusion of issuing citizenship certificates: Certifications refers to formally certifying English translation of Italian documents. Mr Scarati can do that. Any Consular employee can do that.
(b) Validation of driver licences: When an Italian citizen arrives here, they must go to VicRoads to obtain a licence to drive in Australia. The Consulate has a basic document to assist citizens getting their Australian licences, but we don’t ‘validate’ a driver’s licence. The Legal Affairs department issues that.
(c) Electoral matters: Whenever there is a general election, Italian citizens abroad can cast ballots. The Consulate operates as a ‘polling booth.’ The Consulate sends out the ballot papers and receives the completed ballot papers. The ballots are put in a sealed bag to be opened in Italy. The Consulate also verifies which citizens have the right to vote. Consular staff members, including Mr Scarati, are tasked with the verification of the voters’ list residing in our jurisdiction. The list is sent from the Ministry of the Interior and is updated every six months. Consular staff check if voters names are spelled correctly and that their addresses are the same. This is crucial to ensure that the ballot papers will be sent to all those eligible to vote. It’s a mechanical task. Mr Scarati not involved in the collection of the ballot papers.
(d) Notifications, letters rogatory, declarations and applications:
i. Declarations refers to a formal declaration by an Italian citizen that information they have given is true and correct. This task is like witnessing a signature. Mr Scarati can do this.
ii. The notifications are performed by another employee, Mr Piciocchi. I have not seen Mr Scarati perform notifications. If he does this, it’s not under my supervision.
iii. Letters rogatory is not a task we do. This task is only performed by the Consul-General in person. Taking care of rogatory matters is only within the jurisdictional powers of the Consul-General and cannot be delegated.
iv. ‘Applications’ is a generic term. I don’t know what it refers to specifically here.
(e) Residual conscription operations: There was a military draft in Italy until 1995, which has now been discontinued. But there is a window of people born from 1983 to 1985 who still receive conscription notices. If that happens to a person living in Australia, they must be notified. It is possible that Mr Scarati calls the person or sends them a message about the conscription notice. If somebody comes to the window, there is a form he has to fill in and sign. It says he’s aware that he was supposed to be drafted. He’s residing abroad. He’s not objecting to the reinstatement of the draft.
(f) Pensions and health: In Melbourne there are offices called the Patronati. These offices provide assistance to the elderly in the Italian community. They receive some funding from the government, which we supervise. I am not aware of Mr Scarati being involved in this. He does not pay or supervise the payment of pensions or the awarding of pensions. We have an accounting department which receives money to pay government pensions.
(g) Reviewing and forwarding certificates of the consular registry, birth deaths and marriages and citizenship received from local authorities ...: When somebody gets married or has children in Australia, it may be registered in Italy. In order to register it, the person has to bring to the consular office the certificate of birth or marriage, and a translation into Italian. A Consulate staff member looks at the translation and checks if it matches the original. They scan the documents and send it to the municipality where the person was born, or his ancestral home in Italy in order to have it recorded in Italy. All of my colleagues can do this task, but I do not think Mr Scarati is currently involved in this task. It may have been part of his duties previously.
(h) Financial assistance, cash disbursements and repatriation of citizens (preliminary acts):
i. The Consulate offers financial assistance occasionally, where an Italian visiting citizen is robbed or injured or in need of financial help. We can advance some money, with a pledge from the person to return the money as soon as they can. I have not seen Mr Scarati perform any of these tasks. This involves using MIRTA, online software. Only the Consul-General is authorised to approve financial assistance. Mr Antonio Mucci oversees social assistance for the Consulate.
ii. Repatriation refers to assisting or arranging for someone to be sent back to Italy. The Consulate will purchase a flight. The Consul-General makes that decision.
iii. The accounting officer is the only person tasked with issuing cash disbursements, and only under the order of the Consul-General.
(i) Keeping and updating the consular registers in relation to AIRE [Registry of Italians Resident Abroad]: When someone changes address, a staff member updates the AIRE database. It is a basic clerical task. Mr Scarati does not currently do this but might have been performing this task before November 2018.
(j) Keeping the register of local authorities’ signatures: Prior to 1995, each consulate was required to keep a register of local authorities’ signatures. This ended when Australia ratified the 1961 Hague Convention on Abolishing the Requirement of Legalisation for Foreign Public Documents. The Consulate is not required to do this anymore.
(k) Translation and certification concerning legislation and local customs: I am not aware if Mr Scarati receives requests for translation and certification. I certainly don’t ask him to do it. I don’t know if Mr Scarati is qualified or certified as a translator.
(italics in original)
160 Mr Scarati further relied upon his second affidavit dated 3 October 2022, where he replied in detail to Mr Camillacci’s affidavit.
161 Both Mr Scarati and Mr Camillacci gave evidence and were cross-examined at the hearing.
162 During cross-examination, Mr Camillacci confirmed his descriptions of the duties performed by Mr Scarati as follows:
(a) “Duties of conservation, of supervision and administration in the interests of citizens”: Mr Camillacci had never seen Mr Scarati undertake any of these duties;
(b) “Certificates, attestations, legalizations, and endorsements and certification of copies of documents with the exclusion of issuing citizenship certificates”: these are very basic fundamental tasks which Mr Camillacci has seen Mr Scarati undertake;
(c) “Validation of driver licences”: this is a very administrative process usually undertaken by another colleague, but Mr Camillacci could not exclude that Mr Scarati had not undertaken the task before;
(d) “Electoral matters”: this involves checking and amending the electoral list of people. Many Consular officers are involved in these tasks, including Mr Scarati;
(e) “Notifications, letters rotatory, declarations and applications”: Mr Camillacci had not seen Mr Scarati undertake these tasks;
(f) “Residual conscription operations”: Mr Camillacci said these had been suspended in the late 1980s and that any tasks in this area are rare;
(g) “Pensions and health”: Mr Camillacci has not seen Mr Scarati involved in any of these tasks;
(h) “Receiving and forwarding certificates of the consular registry, birth deaths and marriages and citizenship received from local authorities, from Italian citizens or from ship masters or commanders of aircrafts, excluding authority to issue citizenship certificates”: Mr Camillacci understands this was a task that Mr Scarati performed prior to Mr Camillacci’s arrival and would probably continue to perform some of these tasks. The tasks performed by Mr Scarati would be connected with citizenship issues;
(i) “Financial assistance, cash disbursements and repatriation of citizens (preliminary acts) (*)”: Mr Camillacci said that these tasks are undertaken by an accounting officer, authorised by the Consul-General;
(j) “Keeping and updating the consular registers and correspondence in relation to AIRE [Registry of Italians Resident Abroad]”: Many of these registers were abolished “almost a decade ago”. Mr Scarati may have some involvement arising out of his duties in the citizenship area;
(k) “Keeping the register of local authorities’ signatures”: Mr Camillacci said this was a task undertaken prior to Australia becoming part of the Convention, which appeared to be a reference to the Hague Convention;
(l) “Translation and certification” concerning legislation and local customs: Mr Camillacci said that, on occasion, Mr Scarati undertook some of these tasks.
163 Mr Camillacci said that, in performing his role and meeting citizenship applicants, Mr Scarati might have had to provide some information to the applicants on legislative requirements.
164 Mr Camillacci also said that the recognition of citizenship by descent does not involve the exercise of any discretionary power by the person processing an application.
165 Although Mr Scarati sought to challenge the veracity of the affidavit evidence given by Mr Camillacci, based on a reference in cross-examination to the affidavit having been checked by him, it can be seen that his oral evidence was largely consistent with his written evidence.
166 During cross-examination, Mr Scarati clarified the following:
(a) As to reporting on legislative requirements, the reporting related to individual cases. That was the context in which it might be said that Mr Scarati reported to, or provided advice to, the Consul-General. This was limited to cases which were being processed by Mr Scarati.
(b) Passport applications processed by Mr Scarati were routine passport applications. Applications involving a level of complexity or difficulty were approved generally by officers in Italy.
(c) Mr Scarati does not supervise lower level employees. In terms of experience, Mr Scarati is of the view that it could be said he supervises other employees at the same level as him when they came to him, as colleagues and friends, to seek advice, which he always provided.
(d) Mr Scarati reports to Mr Camillacci.
(e) Mr Scarati has no post-graduate qualifications in fields relevant to his work.
(f) Mr Scarati does not formally train employees within the Consulate. Because of his experience, he might, in particular areas, informally provide some training, but this involves people at his own level as all are administrative assistants.
(g) Mr Scarati does not assist in the delivery of training courses. Participation in formal training courses is not part of his duties.
(h) As part of his duties, Mr Scarati does not provide reports to management. Mr Scarati has, in a practical sense, on occasions, advised about certain citizenship applications which he is processing.
167 Mr Scarati was asked questions regarding the APS levels. Those matters are not relevant, given the findings which I have made concerning the Contract Underpayment Claim.
168 However, they are relevant to an understanding of Mr Scarati’s duties generally. Mr Scarati said:
(a) he does not advise on policies. That is “way out of” his line of “business or competency”;
(b) he has no role in strategic planning, program and project management and policy development. In the area of policy development, it is something dealt with “on a ministry level”. Policy is “delivered from above” and executed at Consulate level;
(c) As to dealing with stakeholders in a representational role, he has, on occasions, met with community members. He has accompanied the Consul-General when the Consul-General has met with community members. Stakeholders are Italian citizens, some of whom live in remote areas. Such stakeholders are told what services are available at the Consulate and how stakeholders should access those services;
(d) he has no role in setting priorities for the work area or maintaining team cohesion or to ensure quality of outputs for the work area. That role is undertaken by the Consul-General;
(e) he is not required to maintain awareness of the longer term strategic, political or operational outcomes of the Consulate;
(f) he was not required to monitor work area performance with an in-depth understanding of relevant legislative and policy framework. The extent to which he maintained work area performance is that he is the first aid officer and the fire warden so, as to that aspect of organisational health and safety, he is responsible;
(g) he had no role in designing or running recruitment and staffing activities;
(h) his role did not involve co-ordinating risk assessment or risk management activities for a project or program except to the extent involved as a first aid and emergency officer;
(i) he gave advice to customers (as to the success or otherwise of citizenship applications), but not to external stakeholders;
(j) he has assisted in reviewing the way the Consulate processes citizenship applications. He regards this as advising the Consul-General;
(k) however, he has no supervisory role within the Consulate;
(l) he does not liaise with internal and external stakeholders on policy, project or operational issues;
(m) he is not involved in co-ordinating and participating in contract management, and believes this would be a matter for the administrative section and not within his role; and
(n) he does not perform research work and analysis, including contributing to the preparation of reports on relevant program activities.
169 Attention was drawn to a document called “Decreto Di Delega Di Funzione Consolare” (the Decree). That document was referred to in [46] of Mr Scarati’s affidavit dated 29 August 2022. Ms Hanna Pappalardo, the Consul-General for Victoria and Tasmania, said that the Decree is a document used by each Consul-General setting out duties which an employee might be required to do. Ms Pappalardo said that the Decrees are not aimed to describe tasks accurately. It is an internal document.
170 Mr Scarati accepted in closing submissions that Mr Camillacci was his direct manager, but contended that, in reality, they worked as a team in the citizenship and passport section.
What were Mr Scarati’s duties?
171 In light of the above, I make the following findings regarding the duties carried out by Mr Scarati in his employment with the Republic.
172 At all relevant times, Mr Scarati was employed as an administrative assistant in the citizenship and passport section of the Melbourne Consulate. In essence, his role required him to process and/or make an initial or threshold assessment of citizenship and passport applications received by the Consulate. No exercise of discretion was involved in these duties.
173 More specifically, his duties primarily included the following:
(a) assessing and processing routine passport applications or renewals, and routine citizenship applications. Applications involving a level of complexity or difficulty would be referred to the Ministry in Italy; and
(b) reporting on legislative requirements in relation to the individual applications which came before him for assessment, in the sense of:
(i) advising customers of the steps necessary to make an application;
(ii) advising customers as to the potential success or otherwise of their applications; and
(iii) providing, in some cases, reports or “advice” to the Consul-General about individual cases.
174 He carried out a number of other basic activities from time to time, including:
(a) checking and amending the electoral list of people;
(b) certificates, attestations, legalizations, endorsements and copies of documents;
(c) translation and certification concerning legislation and local customs; and
(d) attending community “training” sessions with the Consul-General.
175 Mr Scarati reported directly to Mr Camillacci. Although Mr Camillacci was Mr Scarati’s direct manager, it is evident that Mr Scarati could carry out most of his tasks without the need to report to, or seek approval from, Mr Camillacci.
176 It was clear that Mr Scarati is a capable, experienced and valued employee. So much was acknowledged by his colleagues and, in particular, his manager, Mr Camillacci. However, it was equally clear that the duties performed by him were primarily clerical and administrative in nature.
177 Importantly, his role did not require him to:
(a) exercise any discretionary or decision-making powers;
(b) make any final decisions on citizenship or passport applications;
(c) make any decisions, or give any advice, in relation to issues of policy;
(d) supervise lower level employees; or
(e) train lower level employees.
What is Mr Scarati’s classification?
178 In determining whether a particular award classification is applicable to an employee, the Court is required to examine “the major and substantial” aspect of their work (Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 (Choppair) at [64]-[66]).
179 As stated above, the major and substantial aspect of Mr Scarati’s work was to conduct a threshold assessment of, and to process, routine passport and citizenship applications.
180 Counsel for Mr Scarati submitted at the hearing that Mr Scarati is a “highly experienced and relatively senior clerical employee”, who should be classified at the highest level of the Clerks Award, that is, Level 5.
181 To determine the appropriate classification applicable to Mr Scarati’s employment, I will assess the various classifications under the Clerks Award.
182 Schedule A – Classification Structure and Definitions to the Clerks Award provided (as at the date of the hearing), in respect of a Level 2 employee:
A.3 Level 2
A.3.1 Characteristics
(a) This level caters for employees who have had sufficient experience or training to enable them to carry out their assigned duties under general direction.
(b) Employees at this level are responsible and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.
(c) The work of employees at this level may be subject to final checking and, as required, progress checking.
(d) Employees at this level may be required to check the work or provide guidance to other employees at a lower level or provide assistance to less experienced employees at the same level or any combination of one or more of these requirements.
183 It is clear that Mr Scarati falls within this classification. However, it is relatively apparent that he is more senior than this.
184 The characteristics of a Level 3 employee under the Clerks Award are described as follows:
A.4 Level 3
A.4.1 Characteristics
(a) Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work.
(b) Employees at this level require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgment in carrying out their assigned duties.
(c) Employees at this level may be required to give assistance or guidance (including guidance in relation to quality of work and which may require some allocation of duties) to employees in Levels 1 and 2 and should be able to train such employees by means of personal instruction and demonstration.
185 In light of the evidence, Mr Scarati can further be classified as a Level 3 employee. He is able to perform “specialised” tasks in the sense that he is able to assess and process passport and citizenship applications, and provide limited reports on individual cases to his supervisors and the Consul-General.
186 The evidence suggested that Mr Scarati does not require extensive guidance or direction, and, by the nature of his duties, in particular the processing of passport and citizenship applications, he is permitted to exercise limited initiative and judgment.
187 Although Mr Scarati does not give assistance or guidance to lower level employees, it was clear that, due to his experience, he will often assist other colleagues in the “administrative assistant” role.
188 Turning to Level 4, which characteristics are as follows:
A.6 Level 4
A.6.1 Characteristics
(a) Employees at this level will have achieved a level of organisation or industry specific knowledge sufficient for them to give advice or information to the organisation and clients in relation to specific areas of their responsibility.
(b) Employees at this level require only limited guidance or direction and would normally report to more senior staff as required.
(c) A principal feature, but not a requirement, of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordination of work flow, checking of progress, quality of work and resolving problems.
(d) Employees at this level exercise initiative, discretion and judgment at times in performing their duties.
(e) Employees at this level are able to train employees in Levels 1-3 by personal instruction and demonstration.
189 It can be seen that the major difference between a Level 3 and Level 4 employee are those characteristics listed at A.6.1(c)-(e), namely, the supervision of employees in lower levels, the exercise of initiative, discretion and judgment, and the ability to train lower level employees.
190 There is no doubt that Mr Scarati satisfies the requirements under A.6.1(a) and (b). He has a breadth of experience, and has worked in his field for a long period of time such that he would possess a level of organisation and/or industry specific knowledge. It is also evident that he requires limited guidance and direction, insofar as his completion of routine assessment and processing of applications.
191 However, his role plainly does not satisfy the “principal feature” of a Level 4 employee listed in A.6.1(c). As I have found, Mr Scarati does not supervise employees in lower levels, nor was there any evidence that he allocated duties within his section, coordinated employee workflow, or checked the progress or quality of other employees’ work. The extent of his supervision was a natural incident of his experience and time in the role, and involved providing advice to other administrative assistants (employed at the same level) who came to him as colleagues and friends.
192 Further, Mr Scarati’s role conferred minimal authority upon him, as all final decisions ultimately had to be referred to Mr Camillacci or the Consul-General. Relatedly, he was not required to exercise any formal discretion when assessing and processing the applications before him.
193 For these reasons, I cannot be satisfied that Mr Scarati’s duties classify him as a Level 4 employee. The relevant level he was employed at is at Level 3 employee.
Conclusion
194 The Republic was required to pay Mr Scarati annual leave loading at a rate of 17.5%.
195 The parties agreed the following in the Statement of Agreed Facts:
(a) In the period from 1 January 2010 and following, Mr Scarati has periodically taken authorised paid annual leave.
(b) Mr Scarati has not been paid any annual leave loading, at any time, during his employment with Republic.
196 It follows that the Republic breached cl 32.3 of the Clerks Award by failing to pay Mr Scarati any annual leave loading.
197 Mr Scarati claims that this gives rise to a contravention of s 45 of the FW Act. That section provides that a person must not contravene a term of a modern award.
198 By failing to pay Mr Scarati’s annual leave loading, and breaching cl 32.3 of the Clerks Award, the Republic has contravened s 45 of the FW Act.
THE SUPERANNUATION CLAIM
Overview
199 By this claim, Mr Scarati seeks a declaration of a breach of the SGA Act by reason of the Republic’s failure to make employer superannuation contributions for Mr Scarati’s benefit between 2002 and 2013.
200 Mr Scarati contended that, at all material times on and from the commencement of the employment relationship in 2002 or, alternatively, from June 2008 upon his commencement in the Melbourne Consulate:
(a) he was an “employee” for the purposes of s 12(3) of the SGA Act;
(b) the Republic, in its employment of Mr Scarati, was subject to the operation of the Superannuation Guarantee Charge Act 1992 (Cth) (SGC Act);
(c) the Republic was required, as an employer under each Act which employed Mr Scarati within Australia, to calculate the relevant superannuation charge calculated in accordance with each Act and then pay the charge to a superannuation fund nominated by Mr Scarati; and
(d) pursuant to s 49 of the SGA Act, the Republic was liable to pay the “general interest charge” in respect of all unpaid superannuation to Mr Scarati.
201 By the Statement of Agreed Facts, the Republic admitted the following:
(a) The Republic did not make any superannuation employer contributions to Mr Scarati’s nominated superannuation fund pursuant to the SGA Act for Mr Scarati’s benefit, in the period from 2 December 2002 to 31 December 2012 (inclusive).
(b) Since January 2013, the Republic has made employer superannuation contributions for Mr Scarati’s benefit based on Mr Scarati’s wage rates (from January 2013) as specified in [55] of his affidavit dated 29 August 2022.
202 Accordingly, the Republic does not dispute that it failed to make the required superannuation contributions during the relevant period. Rather, it submitted that the Court should refuse to give a declaration on the subject matter because Mr Scarati does not have standing to seek declarations under the SGA Act. The Republic no longer presses any claim for set-off.
203 The core question in relation to the Superannuation Claim is whether Mr Scarati has standing to obtain the declaratory relief he seeks.
Submissions
204 The Republic submitted that Mr Scarati does not have standing to obtain the relief sought because he has no right, enforceable against the Republic, to be paid superannuation. In support of this contention, the Republic relied upon the decisions of Kronen v Federal Commissioner of Taxation (2012) 213 FCR 495; [2012] FCA 1463 (Kronen) and Oze-Igiehon v Uber Technology Inc [2017] FCA 1024 (Oze-Igiehon).
205 By reference to various authorities concerning standing to obtain declaratory relief, Mr Scarati submitted he had a real, and not theoretical interest to seek a declaration of right in relation to the Republic’s failure to comply with the SGA Act and the SGC Act.
206 Mr Scarati also made reference to the decisions of Choppair and Dental Corporation Pty Ltd v Moffet (2020) 278 FCR 502; [2020] FCAFC 118 (Dental Corporation), the latter being a decision in which a Full Court of this Court upheld declarations made by the primary judge regarding an employee’s status under s 12(3) of the SGA Act.
207 In response to Mr Scarati’s reliance on these authorities, the Republic submitted that the Court did not have regard to the decisions in Kronen or Oze-Igiehon and that Mr Scarati’s standing to seek orders was not considered in each case.
Consideration
208 Under the statutory scheme of the SGA Act and the SGC Act, an employer is obliged to provide a prescribed minimum level of superannuation to all employees. Where an employer fails to make superannuation contributions as required, the employer is liable to pay a tax known as a superannuation guarantee charge.
209 It is clear that an employee is not entitled to seek recovery of any payments due from their employer under either the SGA Act or the SGC Act (Oze-Igiehon).
210 However, that is not what Mr Scarati sought to do by the Superannuation Claim. Rather, he sought a declaration under s 21 of the FCA Act.
211 The principles relating to this Court’s power to grant declaratory relief were assayed by the Full Court in Clarence City Council v Commonwealth (2020) 280 FCR 265; [2020] FCAFC 134 (Clarence City Council (FC)) at [57]-[66].
212 In Clarence City Council (FC), it was said by Jagot, Kerr and Anderson JJ (at [63]) that:
It is clear from the terms of s 21 that declaratory relief may be awarded regardless of whether or not any consequential relief is or could be claimed by the applicant: see Aussie Airlines at 414, and the authorities cited therein.
213 As stated in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 at [52], “[t]here may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention”.
214 Critically, as is the issue here, an applicant must have standing to obtain declaratory relief.
215 As stated by the High Court in Hobart International Airport Pty Ltd v Clarence City Council (2022) 399 ALR 214; [2022] HCA 5 (Clarence City Council (HCA)), in federal jurisdiction, questions of “standing” to seek declaratory relief are subsumed within the constitutional requirement of a “matter” (at [31]). The plurality went on to say:
The “significance of standing to the existence of a matter for the purposes of Ch III” is, in essence, that there is no “matter” unless there is a remedy available at the suit of the person instituting the proceedings in question”. While “[a] negative answer to the question — is there a matter before the Court in which it has federal jurisdiction? — would render the question of the plaintiff’s standing moot”, “an affirmative answer to the question — is there a matter? — may not be sufficient to answer the question whether the plaintiff has standing”.
(footnotes omitted)
216 It is said to be “‘conceptually awkward, if not impossible’ to sever the requirement of a ‘matter’ and standing” (Clarence City Council v Commonwealth (2020) 280 FCR 265; [2020] FCAFC 134 at [72]). In Edwards v Santos Limited (2011) 242 CLR 421; [2011] HCA 8, Heydon J summarised the requirements for standing as follows (at [38]):
An example of how a person can have standing to obtain a declaration and how a court can have jurisdiction to grant a declaration is afforded by Aussie Airlines Pty Ltd v Australian Airlines Ltd … Lockhart J (Spender and Cooper JJ concurring) said that the question [in Aussie Airlines] was not “hypothetical”, it was of “real practical importance” to the applicant, the applicant had a “real commercial interest” in the relief, the head lessee was “plainly a contradictor”, and there was “obviously a real controversy”. So here, whether or not the plaintiffs have rights enforceable against the petroleum defendants, the question whether the [Authority to Prospect 259P] is valid is not hypothetical, it is of real practical importance to the plaintiffs, they have a real commercial interest in the relief, the petroleum defendants (and Queensland) are plainly contradictors, and there is obviously a real controversy.
(footnotes omitted; emphasis added)
217 As stated in Clarence City Council (HCA), Mr Scarati must have a “sufficient” or “real” interest in obtaining the relief sought. This requirement applies differently in different sorts of controversies (Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, LexisNexis Butterworths, 2015), at [19-175], p 626).
218 When the matter relates to private rights, the plurality in Clarence City Council (HCA) said (at [34]) that:
[T]he general principle is clear: an applicant for declaratory relief will have a “sufficient” or “real” interest in obtaining relief where it pertains to declaring the existence of legally enforceable rights or liabilities of the applicant, including statutory rights.
(footnote omitted)
219 Further, as observed by the Full Court in Clarence City Council (FC), relief which relates to “the existence of” the applicant’s statutory entitlements will give rise to a real interest (at [146]):
An interest in relief will be “real” where the relief sought pertains to declaring the existence of legally enforceable rights or liabilities of the applicant. For instance, an interest in relief will be “real” in the relevant sense where the relief sought concerns the existence of statutory entitlements.
(emphasis added)
220 That interest can exist even if the applicant does not have a cause of action to obtain associated relief. As the plurality stated in Clarence City Council (HCA) at [32]:
The question must be real, not theoretical. There must be a proper contradictor — someone presently existing who has a true interest to oppose the declaration sought. And the applicant must have a “sufficient” or “real” interest in obtaining the relief. There is no requirement that an applicant for declaratory relief have a cause of action in order to obtain it. Those principles are not exhaustive.
(footnotes omitted)
221 None of the cases relied on by the Republic considered an employee’s standing to seek declaratory relief in relation to their statutory entitlement to superannuation contributions. They considered circumstances where an employee or other person has attempted to enforce their entitlement to be paid superannuation contributions.
222 In Kronen, Mr Kronen sought relief against the Australian Taxation Office (ATO) for its refusal to recover an alleged shortfall in superannuation contributions payable by his employer. Besanko J stated (at [50]) that:
The insuperable difficulty for the applicant in this case is that I do not think the [SGA Act] contains a scheme which gives him a right or imposes a duty on the respondent. The words in s 36 (and s 37 if that be relevant) are wholly permissive and it is the employer who is given the right to object. Furthermore, there is no section which provides a trigger to an obligation on the respondent to hear and decide a claim by an employee that his or her employer was not making superannuation contributions according to law. The fact that there might be an administrative structure (that is, employee notification) does not confer a right on the applicant to require the respondent to take action or impose a duty on the respondent to do so. Section 45A (if it be relevant) did not create a duty to hear and determine.
(emphasis added)
223 Kronen is not relevant to the present case. It was a case where the applicant sought to assert that the ATO had a duty to take action to enforce the payment of superannuation contributions by his employer.
224 The reference to the relevant superannuation legislation not giving the applicant a right must be read to mean a right under the enactment to compel the ATO to take a certain course and not as having any bearing on whether an applicant in a similar position to Mr Kronen might have standing to seek declaratory relief in relation to similar questions.
225 The Republic also relied on the decision of Oze-Igiehon. In that case, the applicant sought that Uber make payments of superannuation allegedly due to a group of persons under the SGA Act.
226 Gilmour J noted (at [16]) that “[t]he liability to pay a superannuation charge arises as a statutory obligation under s 16 of the SGA Act. It is not a contractual entitlement”.
227 In relation to the applicant’s claims, Gilmour J observed (at [18]-[20]) that:
18 The applicant, in his written and oral submissions, did not assert that he is an employee of Uber Australia, nor has he sought to demonstrate, why in any capacity, he has any right under ss 12, 15B or 16 of the SGA Act or otherwise. Indeed in the course of the hearing, the applicant conceded as a fact that he was not an employee. However, even were he an employee of Uber Australia, then it would avail him nothing.
19 This is so because the only persons who have standing to bring a claim in respect of any payments due under either the SGA Act or the SGC Act are the Commissioner, a Second Commissioner or a Deputy Commissioner. Section 43 of the SGA Act provides that the Commissioner has the general administration of that Act.
20 It follows that no employee is entitled to seek recovery of any superannuation shortfall from their employer for an alleged breach of s 16 of the SGA Act.
228 Again, the above observations were in relation to an employee’s entitlement to actually seek recovery of superannuation, not to seek a declaration regarding their entitlement to it.
229 In Pruessner v Caelli Constructions Pty Ltd [2022] FedCFamC2G 206, the Federal Circuit and Family Court of Australia adopted the reasoning in Oze-Igiehon in response to the applicant’s claim to various entitlements under an award and to superannuation pursuant to s 12(3) of the SGA Act.
230 It is not clear from the judgment whether the applicant was seeking to recover his entitlement to superannuation contributions, or was merely seeking a declaration that he was so entitled. It seems that the applicant sought to actually enforce his entitlement to contributions under the scheme.
231 Judge McNab, relying on Oze-Igiehon, accepted the respondent’s submission that only the ATO had standing to enforce the superannuation regime, and stated (at [59]) that this was “not a case [where] an entitlement to enforce superannuation contributions is said to arise as part of proceeding to enforce Award entitlements”.
232 There is otherwise a line of authorities which suggests that the ATO’s exclusive standing to enforce the superannuation legislative scheme does not affect the Court’s ability to make orders in relation to an employee’s entitlement to superannuation contributions, nor does it affect an employee’s ability to seek declaratory relief in relation to its entitlements.
233 In Choppair, Bromberg J considered an appeal from a decision of the Federal Circuit Court. At first instance, the respondent was ordered to pay compensation directly to the applicant for superannuation contributions it had failed to make as required by legislation.
234 Bromberg J considered that the primary judge failed to consider that the proper recipient of contributions under the superannuation legislative scheme was a complying fund, and that the compensation order would not satisfy the employer’s liability under the scheme.
235 His Honour concluded (at [94]):
I will make orders to the effect that the primary judge’s compensation order be varied so that amounts due to Ms Bobridge for the underpayment of superannuation are to be paid into Ms Bobridge’s complying superannuation fund.
236 In Australian Workers’ Union v BlueScope Steel (AIS) Pty Ltd (2018) 107 ATR 333; [2018] FCA 80, the applicant commenced proceedings regarding six employees’ entitlement to superannuation. Having found that the employees were entitled to more superannuation than they received, Flick J considered the relief that should be granted:
148 The relief to be granted should include declaratory relief. But the form of any such relief requires detailed consideration. Care should obviously be taken to ensure that the declarations to be made are confined to the facts and circumstances of the present case and resolve questions as to the rights of the parties. Declaratory relief should obviously not extend to declarations as to the manner of resolution of abstract questions of law.
149 Declarations should thus be drafted which declare that there has been a contravention of s 50 of the Fair Work Act 2009 and the facts giving rise to that declaration.
150 Declarations should also be drafted which declare that the superannuation contributions in respect to Messrs Storey and Le Clerc have not been calculated in accordance with the Superannuation Guarantee (Administration) Act 1992 or the Agreements. It may, perhaps, be more prudent to grant such relief in terms of the “additional hours component” and the “public holidays component” forming part of the “ordinary hours of work”.
…
152 But no order should be made in the present proceeding that there should be payable to either Mr Storey or Mr Le Clerc any sum of money representing the extent to which contributions have not been made as should have been made. It is to be assumed that such shortfalls in contributions will be rectified, either pursuant to voluntary contributions by one or other of the Respondents or pursuant to the intervention of the Commissioner of Taxation when discharging his responsibility in administering the legislation.
(italics in original)
237 Although an appeal against the decision was allowed (Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union (2019) 270 FCR 359; [2019] FCAFC 84), nothing was said by the Full Court about the declaratory relief being inappropriate. In fact, the Court noted (at [194]) that:
The primary judge made declarations of contravention in respect of the appellants’ failure to make the minimum superannuation contributions, which formed the basis for breaches of s 50 of the FW Act and Item 15 of Sch 16 to the FW Transitional Act. The primary judge made Orders accordingly, which are not the subject of any of the grounds of appeal.
238 Recently, in Dental Corporation, the Full Court (Perram, Wigney and Anderson JJ) upheld declarations made by the primary judge regarding an employee’s status as an employee under s 12(3) of the SGA Act.
239 In the proceedings below, the applicant contended that the respondent had been required to make superannuation contributions to his nominated fund because of the SGA Act and the fact that he fell within the extended definition of an employee under s 12(3). The trial judge granted a declaration to that effect as a matter of relief.
240 The Full Court considered, and dismissed, a ground of appeal that the applicant was not an employee for the purposes of s 12(3) of the SGA Act. The Court did not suggest that there were any issues with the applicant’s standing to seek such relief.
Does the HCA’s decision in Jamsek cast doubt on the above authorities?
241 Mr Scarati also relied on the decision in ZG Operations Australia Pty Ltd (ACN 060 142 501) v Jamsek (2022) 398 ALR 603; [2022] HCA 2 (Jamsek) as supporting the fact that the Court can grant the declaratory relief he sought.
242 The applicants had initially commenced proceedings in the Federal Court seeking declarations and orders in respect of certain statutory entitlements. In the first instance decision (Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934), Thawley J observed (at [214]) that:
The applicants sought declaratory relief to the effect that they were employees within the meaning of the SGA Act. A question was raised about whether such declaratory relief would have been appropriate even if the applicants were employees.
243 However, because his Honour considered that the applicants were not employees within the meaning of the SGA Act, it was not necessary to consider the appropriateness of declaratory relief.
244 In Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114; [2020] FCAFC 119 at [121]), the Full Court held that the applicants were employees of the first respondent for the purposes of s 12(1) of the SGA Act. The Court made orders to that effect. The Court did not consider whether the applicants fell under the expanded definition of employee in the SGA Act after reaching that conclusion.
245 In the appeal to the High Court, it was held that the applicants were not employees. There was no criticism by the High Court of the orders made by the Full Court regarding the applicants’ entitlement to superannuation.
246 The applicants contended (in a notice of cross-appeal) that, if they were found not to be employees, Mr Jamsek and Mr Whitby fell within the expanded definition of “employee” under s 12(3) of the SGA Act. Kiefel CJ, Keane and Edelman JJ considered that it would be inappropriate to deal with this contention in circumstances where the Commissioner of Taxation was not a party to the proceedings, and where the Full Court did not address the questions (at [75]). The Court decided (at [76]):
So far as the proposed cross-appeal by the respondents is concerned, the justice of the case would be met by an order that the issues raised by the notice of cross-appeal be remitted to the Full Court to enable that matter to be determined following the joinder of the Commissioner of Taxation.
(emphasis added)
247 This single passage from the High Court does not seem to displace the clear Full Court decision in Dental Corporation.
Conclusion
248 The authorities support the conclusion I have reached that an applicant can seek declaratory relief in relation to a statutory entitlement, whether or not they have a cause of action to enforce that entitlement, provided they have a sufficient or real interest in the relief sought; there is a proper contradictor; and there is a “real controversy” to be resolved.
249 As indicated in Clarence City Council (FC) (at [146]), an applicant who seeks relief concerning the existence of their statutory entitlements has a real or sufficient interest in seeking that relief, and therefore has standing.
250 It is not relevant to the question of standing whether or not any consequential relief, such as recovery of the contributions due, could be claimed by Mr Scarati.
251 In this case, Mr Scarati has a real and sufficient interest in the relief sought. There is a proper contradictor and there is a real controversy to be resolved. Mr Scarati has standing to seek, and this Court has power to grant, declaratory relief regarding his entitlement to superannuation contributions under the SGA Act.
252 For these reasons, the Republic’s challenge to Mr Scarati’s standing must be rejected.
THE LONG SERVICE LEAVE CLAIM
Overview
253 Mr Scarati sought a declaration that he has accrued a right to paid long service leave under the 1992 and 2018 LSL Acts during his employment with the Republic.
254 The Republic admitted in the Statement of Agreed Facts, under cover of objection, that:
(a) at all material times, the Republic was an employer for the purposes of the 2018 LSL Act;
(b) in the period 2002 to 30 June 2020 and continuing, Mr Scarati has been employed continuously by the Republic for the purposes of the 2018 LSL Act; and
(c) as at 21 October 2022, Mr Scarati will have accrued a service period under the 2018 LSL Act of approximately 20 years and continues to accrue a service period under that Act.
255 The Republic’s only objection was that this Court does not have jurisdiction to determine the Long Service Leave Claim. It submitted that this Court does not have jurisdiction because the 2018 LSL Act reposes exclusive jurisdiction, in relation to matters arising under that Act, on the Industrial Division of the Magistrates’ Court of Victoria.
Submissions
256 Mr Scarati submitted that there was a distinction between this Court’s jurisdiction to grant declaratory relief regarding his entitlement to leave under the 1992 and 2018 LSL Acts and a claim for money owing under those LSL Acts. He seemed to accept that this Court would not have jurisdiction to determine the latter.
257 The Republic accepted that it must contend with authorities that have assumed this Court’s authority to make orders in respect of the 1992 and 2018 LSL Acts. However, it submitted that this Court should accept the reasoning of Jessup J in Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191 (Finch) to hold that it does not have jurisdiction to determine the Long Service Leave Claim.
Consideration
The 2018 LSL Act
258 Section 24(1) of the 2018 LSL Act provides that the Industrial Division of the Magistrates’ Court “has jurisdiction to deal with” various matters in relation to long service leave, including “an application as to whether an employee is entitled to long service leave”: s 24(1)(a).
259 Section 26(2) also provides:
An employee to whom money is owed by an employer for long service leave under this Act or any other Act, or under an employment agreement or order made under this Act or any other Act, may commence a proceeding in the Industrial Division of the Magistrates’ Court to recover the money owing.
260 There is nothing in the text of ss 24 or 26 that expressly confers exclusive jurisdiction on the Industrial Division of the Magistrates’ Court in relation to the matters listed in that section.
261 In contrast, s 25 of the 2018 LSL Act provides:
Proceedings for offences to be brought in Industrial Division of the Magistrates’ Court
(1) If a person is charged with an offence against this Act, the charge must be heard, and all penalties recovered, before the Industrial Division of the Magistrates’ Court.
(2) Despite anything to the contrary in any Act, the jurisdiction of the Industrial Division of the Magistrates’ Court in relation to any matter referred to in subsection (1) is exclusive.
…
262 A comparison of the text of ss 24 and 26 on one hand, and s 25 on the other hand, lead to the conclusion that the jurisdiction of the Industrial Division of the Magistrates’ Court conferred under ss 24 and 26 is not exclusive.
This Court’s jurisdiction
263 In Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559; [2001] HCA 1, Gleeson CJ, Gaudron and Gummow JJ stated that, by reason of s 79 of the Judiciary Act 1903 (Cth) (the Judiciary Act), rights and remedies conferred by State legislation can be applicable in federal jurisdiction, even though the relevant Act identifies only the courts of the enacting State as the courts able to provide those remedies:
59 It should be emphasised that the law of a State cannot withdraw from this Court federal jurisdiction conferred by s 75 of the Constitution, nor the federal jurisdiction which a court (State or federal) otherwise may exercise under a conferral or investment of jurisdiction by a law made under s 76 or s 77 of the Constitution; nor may a State law otherwise limit the exercise of federal jurisdiction.
…
68 It is well established from the decisions under s 79 of the Judiciary Act, most recently that in Austral Pacific Group Ltd (In liq) v Airservices Australia, that a State statute may be applicable as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies. Indeed, as Gibbs J indicated in John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd, were that not so the operation of federal jurisdiction might readily be stultified. There might be withdrawn from courts exercising federal jurisdiction (including this Court) the effective authority to quell controversies in respect of which, by reason, for example, of the identity of parties, s 75 of the Constitution had conferred original jurisdiction upon this Court and s 77 empowered the Parliament to grant authority to the other federal courts and to State courts exercising federal jurisdiction. An attempt by State law to achieve that result would, as to this Court, be repugnant to s 75 of the Constitution. Where jurisdiction was conferred by a law made by the Parliament in exercise of its powers under s 77 of the Constitution, the State law also would be invalid for inconsistency under s 109 of the Constitution.
(footnotes omitted; emphasis added)
264 As Mr Scarati submitted, s 79 of the Judiciary Act can therefore “pick up” the dispute between him and the Republic regarding the Long Service Leave Claim.
265 Further, where the dispute is “one controversy”, this Court will have jurisdiction to resolve the whole dispute or controversy, even where parts of the matter do not specifically attract federal jurisdiction.
266 In my view, it is clear that the Long Service Leave Claim is part of the matter concerning Mr Scarati’s employment by the Republic (Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27).
267 Section 39B(1A)(c) of the Judiciary Act confers jurisdiction on the Federal Court in all (non-criminal) matters arising under any Commonwealth statute. Because the FW Act applied to the employment relationship between Mr Scarati and the Republic, and Mr Scarati makes various claims under that Act, the whole matter before the Court attracts federal jurisdiction.
268 There are otherwise a number of decisions by the Federal Circuit Court and the Federal Circuit and Family Court of Australia where the Court has considered it has jurisdiction to determine claims under State long service leave Acts despite wording in the statute which confers jurisdiction on State courts.
269 In Balemian v Mobilia Manufacturing Pty Ltd [2017] FCCA 743, the applicant alleged that he was entitled to long service leave pursuant to ss 56 and 57 of the 1992 LSL Act, and that the respondent had breached the Act as a result of its failure to pay the applicant long service leave. The applicant sought compensation for his loss suffered as a result of the unpaid long service leave.
270 The respondent submitted that the Court did not have jurisdiction to entertain the applicant’s claim. However, the Court determined (at [79]-[80]) that it was able to determine the claim as part of its “accrued jurisdiction” as follows:
79. By s.160(1) of the Long Service Leave Act 1992 (Vic) (‘the Long Service Leave Act’), where an employee is owed money under that Act, the employee may take proceedings in the industrial division of the Magistrates Court of Victoria to recover the money owing. The Respondents submit that this Court has no jurisdiction to entertain the claim raised by the Applicant.
80. The Court is satisfied it has accrued jurisdiction to hear and determine the Applicant’s claim for long service leave as this element of the claim clearly arises out of the common substratum of transactions and facts to which the other elements relate. As stated by the High Court in Fencott v Muller (1938) 152 CLR 570 at 680:
“The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.”
(italics in original)
271 In Ertekin v Euro Natural Stone Pty Ltd [2021] FCCA 512, the applicant claimed that his employer had failed to pay amounts due to him under the Long Service Leave Act 1955 (NSW). The Court made the following observation (at [50]):
Subsection 12(1) of the LSL Act confers jurisdiction on the Local Court of New South Wales and on the Supreme Court of New South Wales. That, however, does not prevent this Court from exercising the jurisdiction s 12(1) of the LSL Act confers on those courts. Mr Ertekin’s claim under s 12(1) of the LSL Act arises out of the same substratum of facts as his claims under the FW Act and, for that reason, forms part of the one matter that arises under the FW Act that is before the Court. In those circumstances s 79(1) of the Judiciary Act 1903 (Cth) operates to apply s 12(1) of the LSL Act “as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies”.
(italics in original; footnote omitted)
272 In Kelly v Atanaskovic Hartnell Corporate Services Pty Limited (No 2) [2022] FedCFamC2G 112, the applicant sought an order directing the respondent to pay her long service leave entitlements. The Court observed (at [150]):
The respondents accept that, notwithstanding that the claim under the Long Service Leave Act arises under State law (and is thus a non-federal claim), the Court has accrued jurisdiction to hear and determine the claim. (The respondents note the recent criticisms over the use of the phrase “accrued jurisdiction”). However, given that the respondents seek to resist the claim by reference to (among other things) an order under rule 24.09 of the FCFC Rules, the respondents are relying on federal law as a defence with the result that there is a matter that owes its existence in part to a federal law and thus the Court possesses original jurisdiction (and not merely accrued jurisdiction) to hear the claim.
(footnotes omitted)
273 The Federal Court has also considered claims under State long service leave legislation. However, less guidance has been offered from these decisions.
274 For example, in Moffet v Dental Corp Pty Ltd (2019) 286 IR 21; [2019] FCA 344, the Court made reference to the jurisdiction conferred on State courts by the Long Service Leave Act 1955 (NSW). However, Flick J did not make any determinations regarding that Act as it was concluded (at [80]-[81]) that the applicant was not a “worker” for the purposes of the Act:
80 …
Section 7(2) provides that the Act applies such that “[n]o contract or agreement … shall operate to annul or vary or exclude any of the provisions of this Act”. An “employer” thus may not “contract out” of the Long Service Leave Act: Steiner v Strang [2016] NSWSC 395 at [150] per Slattery J. Section 12 provides for any “worker” to make an application to the Local Court of New South Wales or the Supreme Court of New South Wales “for an order directing the employer to pay to the worker the full amount of any payment which has become due” under the Long Service Leave Act. Notwithstanding that provision, no submission was advanced in the present case as to the jurisdiction or the appropriateness of this Court making a declaration of contravention of the State Act and making any order to give effect to any entitlement that Dr Moffet may have under that Act.
81 No different conclusion, in any event, should be reached in respect to this claim than that reached in respect to the claims made under the Fair Work Act. For the reasons already given, it is concluded that Dr Moffet was not a “worker” for the purposes of the Long Service Leave Act as he was not “employed”. Dental Corp was not his “employer”.
(italics added)
The decision in Finch
275 As mentioned above, the Republic relied upon the decision in Finch in support of its submission that this Court does not have jurisdiction to deal with the Long Service Leave Claim.
276 In that case, Jessup J dismissed the applicant’s claim for long service leave owed to it on the basis that the money had to be sued for in the Industrial Division of the Victorian Magistrates’ Court. His Honour stated (at [85]):
The respondents’ submissions dealt next with the applicant’s claims under the LSL Act. It was said that, pursuant to s 160 of that Act, recovery of money owed under s 58 had to be sued for in the Industrial Division of the Magistrates’ Court of Victoria. That submission must be accepted: see Houston v Dewi Thomas Pty Ltd [1967] VR 300, 305.
277 As can be seen from the above passage, his Honour relied on the decision of Houston v Dewi Thomas Pty Ltd [1967] VR 300, in which an employee sought holiday pay from his employer. Starke J held that the employee’s right to holiday pay arose exclusively out of s 149 of the Labour and Industry Act 1958 (Vic), which he said provided an exclusive mode of enforcement. His Honour relied on the decision in Josephson v Walker (1914) 18 CLR 691 where Griffith CJ said (at 697): “A new obligation is created and special mode of enforcing it is given. That mode, according to the general rule, is exclusive of any other mode of enforcing it”.
278 The reasoning of Jessup J in Finch has not been applied or dealt with in any subsequent decisions. Jessup J also did not describe how the 1992 LSL Act provided a “special mode of enforcing it” which was “exclusive of any other mode of enforcing it”.
279 On the other hand, the decision of the Full Court in Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421; [2020] FCAFC 204 implicitly confirmed that the former Federal Circuit Court (and the Federal Court) have jurisdiction to determine claims concerning an employee’s entitlement to long service leave under the 1992 LSL Act (which is relevantly in the same form as the 2018 LSL Act).
280 In that case, the Full Court dealt with an appeal from a decision of the Federal Circuit Court in which the applicant had claimed (among other things) that, when his employment was terminated, he was underpaid his entitlement to long service leave under the 1992 LSL Act.
281 At first instance, it was concluded that the applicant was entitled to the long service leave he claimed. A declaration was made requiring the employer to recognise the service provided by the applicant for the purposes of Mr Keenan’s long service leave entitlements.
282 This finding was challenged on appeal. Bromberg and Mortimer JJ rejected the challenge, with the result that the declaration made by the primary judge stood.
283 There were no observations made by their Honours which cast doubt upon the appropriateness of, or the Court’s jurisdiction to make, the declarations.
Conclusion
284 In my view, this Court has jurisdiction to deal with any matters under ss 24 or 26 of the 2018 LSL Act by reason of s 79 of the Judiciary Act.
285 For this reason, the Republic’s challenge to this Court’s jurisdiction must be rejected.
EMPLOYEE RECORDS CLAIM
Overview
286 The facts relevant to this claim, as set out in the Statement of Agreed Facts, are as follows:
(a) On 25 May 2020, Mr Scarati, via his solicitors, made a written request to the Republic to inspect his employment records and to obtain copies of same (Records Request).
(b) By a letter dated 29 May 2020, the Republic refused the Records Request on the grounds of “confidentiality” obligations it owed to Mr Scarati. It sought a request from Mr Scarati personally. The Republic made no offer to provide access to those documents to Mr Scarati. It did not thereafter provide access to those records within 14 days.
(c) On 12 August 2020, Mr Scarati issued these proceedings. As at that date, the Republic had still not given Mr Scarati access to his employee records and/or provided him with a copy of same.
(d) The proceedings were served on 18 February 2021.
(e) The Republic first provided certain employee records to Mr Scarati under cover of a letter dated 30 November 2021 to Mr Scarati’s then lawyers, which were in Italian.
(f) Further copies of employee records were provided by the Republic on 12 and 15 August 2022, predominantly in Italian.
(g) The Republic did not provide matching translations of the records provided on 12 and 15 August 2022 until 18 August 2022.
287 As set out earlier, the Republic admitted its contravention of reg 3.31(2)(a) of the FW Regulations, being its failure to keep the employee records in relation to Mr Scarati in English.
288 Accordingly, all there is to determine is whether, by its above conduct, the Republic contravened s 535(3) of the FW Act, by reference to reg 3.42(2) and (3) of the FW Regulations, by its failure to make available to Mr Scarati the requested employee records for inspection.
Relevant legislation
289 Section 535 of the FW Act imposes obligations upon an employer in relation to employee records.
290 Section 535(1) requires an employer to make, and keep for seven years, employee records of the kind prescribed by the FW Regulations in relation to each of its employees. Section 535(3) then provides that the FW Regulations may provide for the inspection of those records.
291 Relevantly, reg 3.42(1) provides that, for s 535(3) of the FW Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates. If the record is kept at the premises where the employee works, it must be made available for inspection within three business days, or posted to the employee within 14 days of the request (reg 3.42(3)).
Submissions
292 Mr Scarati submitted that it was clear the Republic had breached reg 3.42 by failing to provide him with a copy of his employee records that he had requested. He said there was no basis in the legislation for a denial of access on the grounds relied upon by the Republic.
293 Mr Scarati submitted that “at its most benign, this first response/refusal was dissembling and game playing in the face of impending litigation”. He noted the request came well after a formal letter of demand had been sent by his lawyers in relation to the matters now before this Court. He went further to suggest that, “at its worst”, this was a conscious and deliberate contravention of a civil remedy provision.
294 In response, the Republic contended that:
(a) it was not uncommon for a request to be made for a government department to seek express written authority from a person before providing sensitive personal information, particularly where the express words of reg 3.42(1) of the FW Regulations require the request to come from the employee; and
(b) it was not unreasonable for the Republic to seek written authority from Mr Scarati before providing those employee records.
Consideration
295 In my view, provided that the person making the request is properly authorised to act on behalf of the employee to whom the records relate (and provides adequate evidence to this effect), the employer is obliged to release the records to them.
296 It would be unduly restrictive to read the legislation as allowing only the employee to make a request. It is possible to envision many circumstances where it may be unreasonable or impractical for only the employee to make the request. An example may be where a person is under guardianship or an enduring power of attorney.
297 However, an employer may reasonably refuse to release the records if the employer is not satisfied that the person making the request is authorised by the employee. The employee must either make the request or provide evidence that the person is making the request as the employee’s authorised representative.
298 In the present case, Mr Scarati’s lawyers made a written request to the Republic on 25 May 2020. That request was not accompanied by an authority from Mr Scarati. In my view, the Republic was within its rights, at that stage, to request that the lawyers provide evidence of Mr Scarati’s authority (or to provide a written request from Mr Scarati) before releasing documents.
299 Mr Scarati asserted that there was a continuing obligation to produce the records.
300 The issue is that the Republic maintained its refusal to release records until 30 November 2021. Although the evidence in relation to this point was scarce, the objective circumstances suggest that it must have become apparent to the Republic that the solicitors did, in fact, have Mr Scarati’s authority.
301 I cannot form a concluded view of what events transpired between the parties after the request was first made on 25 May 2020 and before this proceeding was served on 18 February 2021.
302 I do conclude, however, that by the time the initial Statement of Claim was served on 21 February 2021, it must have been clear to the Republic that the solicitors had authority. The first version of the Statement of Claim contained the allegation that the Republic had breached its obligation to provide to Mr Scarati his employee records.
303 There has been no sufficient explanation provided by the Republic as to why, after receiving the Statement of Claim, it did not immediately provide the requested documents.
304 As such, the Republic’s refusal to provide the records was in breach of its obligations from this point onwards.
305 Notwithstanding the above, Mr Scarati’s conduct cannot be ignored. It is surprising that he did not, in response to the Republic’s request, simply provide a written signed authority or a request for the release of his records and, further, that the solicitors for Mr Scarati did not respond to the Republic with evidence of Mr Scarati’s authority, which would potentially have brought the matter to a close.
306 As a result, the Republic contravened reg 3.42(1) of the FW Regulations after 21 February 2021.
CONCLUSION
307 For the reasons above, I have concluded as follows:
(a) The Contract Underpayment Claim must fail. The Preamble to the Melbourne Contract did not create an obligation for wages to be paid in accordance with the DFAT Agreements, and none of the 1967 Presidential Decree, 2000 Legislative Decree, nor the 2006 DFAT Agreement were incorporated by reference. As a result, the s 323 FW Act Claim must also fail.
(b) In relation to the Award Coverage Claim:
(i) Mr Scarati’s employment is covered by the Clerks Award;
(ii) Mr Scarati is classified as a Level 3 employee under the Clerks Award; and
(iii) by failing to pay Mr Scarati annual leave loading, the Republic has breached cl 32.3 of the Clerks Award and thereby breached s 45 of the FW Act;
(c) In relation to the Superannuation Claim, the Republic’s challenge to Mr Scarati’s standing to seek a declaration must fail. The terms of the declaration to be granted shall be determined at the next stage of the proceeding;
(d) In relation to the Long Service Leave Claim, the Republic’s objection to this Court’s jurisdiction must fail. The terms of the declaration to be granted shall be determined at the next stage of the proceeding;
(e) In relation to the Employee Records Claim, by failing to provide the records after 11 August 2020, the Republic was in breach of reg 3.42(1) and thereby breached s 45 of the FW Act.
308 The parties will be heard in relation to penalties and other relief. Costs are reserved.
309 The parties are directed to confer and, if possible, agree on the terms of the Order which arise from these reasons.
I certify that the preceding three hundred and nine (309) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas. |
Associate:
