Scarati v Republic of Italy [2023] FCA 1264

Federal Court of Australia

Scarati v Republic of Italy [2023] FCA 1264 File number: VID 536 of 2020

Judgment of: THOMAS J

Date of judgment: 20 October 2023

Catchwords: CONTRACT – construction of contract – whether preamble incorporated into the terms of the contract – intention of parties – where preamble referred to the 1967 Presidential Decree, the 2000 Legislative Decree and the 2006 DFAT Agreement – whether 2006 DFAT Agreement incorporated into the contract – held: preamble does not impose any contractual obligation – contract does not incorporate the 1967 Presidential Decree, the 2000 Legislative Decree and the 2006 DFAT Agreement INDUSTRIAL LAW – construction of industrial awards – whether applicant's duties fall within the Clerks Award or the Miscellaneous Award – where there is disagreement in the nature of the applicant's duties – question of the level at which the applicant is employed at – held: applicant falls within the Clerks Award – applicant's duties primarily clerical and administrative in nature – applicant employed as Level 3 employee PRECEDENT – single judge decision – where respondent submits a decision of the Full Court is plainly wrong – whether single judge bound to follow the Full Court SUPERANNUATION – whether respondent failed to make employer superannuation contributions – where respondent does not dispute that it failed to make employer superannuation contributions – where applicant seeking declaration that he was entitled to superannuation contributions – whether applicant has standing to obtain declaratory relief – whether applicant has real and not theoretical interest to seek a declaration – distinguishing seeking declarations to recover superannuation contributions with seeking declarations of entitlement to superannuation contributions – held: applicant can seek declaratory relief in relation to statutory entitlement COURTS AND JUDGES – jurisdiction – whether Federal Court can exercise jurisdiction – whether Long Service Leave Act 2018 (Vic) (LSL Act) reposes exclusive jurisdiction on the Industrial Division of the Magistrates' Court of Victoria – whether under s 79 of the Judiciary Act 1903 (Cth), rights and remedies under State legislation can be applicable in federal jurisdiction – held: this Court can exercise jurisdiction to deal with applicant's claim under the LSL Act FAIR WORK ACT – obligation for employer to keep employee records – whether respondent contravened s 535(3) of the Fair Work Act 2009 (Cth) (FW Act) – whether respondent failed to provide applicant with a copy of employee records – where applicant's solicitors requested employee record – where respondent refused to provide employee records on grounds of "confidentiality obligations" – where respondent not satisfied that employee's solicitors were authorised to make the request – where respondent did not provide employee records until after proceedings had been commenced – held: respondent failed to provide employee records and contravened r 3.42(1) of the Fair Work Regulations 2009 (Cth)