Antonio Mucci v Consulate General of Italy in Melbourne (as agent of the Italian State in Australia)
[2012] FWA 9243
•30 OCTOBER 2012
[2012] FWA 9243 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Antonio Mucci
v
Consulate General of Italy in Melbourne (as agent of the Italian State in Australia)
(C2012/2808)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 30 OCTOBER 2012 |
alleged dispute concerning wages and conditions of employment - national system employer - national system employee - incorporation of agreement into employment contract - coverage of an agreement
[1] Mr Antonio Mucci filed an application for Fair Work Australia to deal with a dispute in accordance with a dispute settlement procedure citing the "Consulate General of Italy in Melbourne (as agent of the Italian State in Australia)" as the respondent.
[2] The respondent has challenged the jurisdiction of Fair Work Australia to deal with this matter. It does so on the basis that it is not a national system employer and that there is no other basis upon which jurisdiction could be founded.
[3] The applicant contends that the respondent is a national system employer and, by operation of section 738 of the Fair Work Act 2009 (the Act), Division 2 of Part 6 - 2 - Dealing with disputes applies. He accepts that section 735 makes it clear that that he must be a national system employee employed by a national system employer in order that Fair Work Australia may deal with the dispute.
[4] To make good his proposition, Mr Mucci relies on part of the definition of a national system employer in section 14(1) of the Act :
"(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory."
[5] Mr Mucci is an Australian citizen "employed to carry out duties at the Consulate General of Italy in Melbourne." 1 He is employed pursuant to a contract made on 13 July 2009 executed by him and by Francesco de Conno, who signed the contract as “The Consul General” and “Head of the Diplomatic Mission” (the Contract). Affixed to the Contract was the stamp of the Consulate General of Italy/Melbourne. The preamble to the Contract recites that "the Italian Consulate General of Melbourne employs Mr Antonio Mucci, Italian citizen" on certain terms and conditions that are set out in the contract. The preamble also cites Mr Mucci's Italian tax file number and notes that his fiscal residence is in Tuscany.
[6] The applicant submits that the "Italian Government is a body politic which carries on activities within a Territory of Australia through its Embassy in Canberra. It employs individuals in connection with its activities in Canberra and around Australia." It contends that as the applicant is one such employee his employer is a national system employer within the meaning of section 14(f) of the Act.
[7] This submission seems to me to be fundamentally flawed. Even be it the case that Mr Mucci is employed by the Republic of Italy, something of which I am not convinced, and even if it carries on an activity in the Australian Capital Territory, Mr Mucci is not a national system employee because he is not an individual in connection with the activity carried on in the Territory. Mr Mucci works in Melbourne and he is employed in connection with the activities of the Italian Consulate General in Melbourne. He thus does not fall within the definition of national system employee in section 13 of the Act.
[8] In any event, I think the better view is that Mr Mucci is employed by the Italian Consulate General of Melbourne as is specified in his contract of employment. The Consulate General does not carry out activities in a Territory.
[9] The respondent did not assert that the wrong entity had been named in the originating application, although I note that the Notice of Representative Commencing to Act filed by its solicitors indicates that they act for the “Consulate General of Italy in Melbourne”. The words in brackets in the originating application have been omitted. In any event, whether it be the Republic of Italy, the Consulate General of Italy in Melbourne or the Consul General who is the employer, none of them employs Mr Mucci in connection with an activity carried on in a Territory. He does not assert that he is employed by the Italian Embassy, which is located in Canberra and carries out an activity in a Territory.
[10] However, that is not the end of the matter because in 1996 Victoria referred certain elements of its industrial relations power to the Commonwealth. 2
[11] Section 30D of the Act provides that a national system employer includes any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual. If the respondent is a national system employer by operation of section 30D, Mr Mucci falls within the definition of national system employee within section 30C.
[12] If Mr Mucci is employed by the Consulate General of Italy in Melbourne or the Consul General it seems to me that he is a national system employee employed by a national system employer as none of the exemptions in the Victorian referral Act applies.
[13] This aspect was not dealt with by either party, but were I to finally decide the matter on the basis that Fair Work Australia may deal with the dispute because Mr Mucci is a national system employee by operation of Section 30D of the Act, I would provide the parties an opportunity to address me on it.
[14] However, even if Mr Mucci is a national system employee that does not finalise the matter before me. Division 2 of Part 6-2 operates as specified in section 738 of the Act:
“738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”
[15] Mr Mucci submits that the Division applies by virtue of section 738(b) because he and his employer are covered by the Department of Foreign Affairs and Trade Enterprise Agreement 2011-2014 (the Agreement). He bases this submission on the preamble to his contract, entitled “EMPLOYMENT CONTRACT ADHEREING TO LOCAL LEGISLATION”, which provides:
“In compliance with the provisions under Sub-section II, Section IV of Presidential Decree n. 18 of 5/1/1967 and subsequent amendments and inclusions - in particular the Legislative Decree in n. 103 of 07/04/2000, as well as “The Department of Foreign Affairs and Trade Certified Agreement 2003-2006” Act, the Italian Consulate General of Melbourne employs Mr Antonio MUCCI, Italian citizen, born on [redacted] in San Marcello Pistoiese, tax-file number [redacted], (of fiscal residence within the Municipality of Prato, Province) of Prato, Tuscany), Australian resident since [redacted], based on the following terms and conditions to which Mr. Antonio MUCCI declares to adhere entirely.”
[16] I should note that I was provided with a translation of the Contract from its original Italian.
[17] The applicant submits that the wording of the preamble means that the Agreement has been expressly incorporated into his contract of employment and that the Agreement contains a dispute settlement procedure that enables a dispute to be referred to Fair Work Australia. To seek to overcome the inconvenient fact, that even if the Agreement is incorporated into the Contract, neither the applicant nor his employer is covered by it, the applicant submits that Fair Work Australia should make an order that the Agreement covers them under section 53(3) of the Act.
[18] The applicant’s submission is untenable and must be rejected. In the first place, the Contract does not incorporate the Agreement. Whatever the translated words; “In compliance with the provisions under ...as well as the Department of Foreign Affairs and Trade Certified Agreement 2003 -2006” mean, they do not have the effect of incorporating the Agreement into the Contract. [my emphasis]
[19] As the applicant’s solicitor recognized a preamble may be referred to to assist in ascertaining the meaning of an ambiguous provision. There is nothing ambiguous about the terms of the Contract dealing with remuneration and the terms and conditions of Mr Mucci’s employment. It is crystal clear that Italian law was to govern most of these aspects. As the 2003-2006 Agreement was not incorporated, the applicant’s submission that the current Agreement is incorporated by implication is also unsustainable.
[20] Further, even were the Agreement to have been incorporated into the Contract, that would not result in Mr Mucci or his employer being covered by it. There is no warrant for invoking the provisions of section 53(1) of the Act because no order has been made, or could be made, as there is not another provision of the Act under which it could be made as is required by section 53(3). The requirements of section 738(b) of the Act have not been met.
[21] It is then put in the alternative that the Division applies because a modern award provides a procedure for dealing with disputes. The applicant submits that the parties are covered by a modern award, “the Clerks Award”. I take this to be a reference to the Clerks - Private Sector Award 2010. Again the applicant’s submission is misconceived. As its name suggests, and its coverage clause makes clear, the Award only covers employers in the private sector and their clerical employees. Neither Mr Mucci nor his employer is involved in the private sector. The requirements of section 738(a) have not been met.
[22] In the further alternative, the applicant submits that his contract of employment includes a procedure for dealing with disputes to the extent that the dispute is about matters in relation to the NES or a safety net contractual entitlement. He again relies on the supposed incorporation of the Agreement into the Contract. For the reasons I expressed earlier, this submission is untenable.
[23] Further, Mr Mucci refers to clause 18 of the Contract which provides:
“Section 18 - Disputes
Without prejudice to the regulations stipulated in conventional and general international law, local jurisdiction will resolve any disputes that may arise from this contract.”
[24] The applicant submits that clause 18 has the effect of providing a dispute settlement procedure, which is the procedure set out in the Agreement, at least insofar as there is a dispute about the National Employment Standards. In his further written submissions he contends that the term in the Contract provides a procedure for dealing with disputes to the extent that the dispute is about the National Employment Standards or a safety net contractual entitlement as defined in section 12 of the Act. I do not accept this submission because clause 18 clearly does nothing of the sort. The requirements of section 738(c) of the Act have not been met. It is not suggested that section 738(d) is relevant.
[25] Having formed the view that Division 2 of Part 6-2 of the Act does not apply to the dispute between Mr Mucci and his employer it is not necessary to decide whether “Fair Work Australia does not have jurisdiction over the Italian Consulate [because] [t]he employee works for the Italian government at the Italian Consulate General in Melbourne on a daily basis and solely on Italian matters relating to Italian rules and regulations” as submitted by the Respondent. Nor do I have to determine whether Mr Mucci is a national system employee.
[26] Fair Work Australia is not empowered to deal with this dispute.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr. G Scomparin on behalf of the Consulate General of Italy in Melbourne
Ms. G Marchetti on behalf of Mr. A Mucci
Hearing details:
2012
23 April and 23 July
Final written submissions:
2012
3 October
1 Applicant’s outline of submissions filed 3 July 2012, paragraph 31.
2 Commonwealth Powers (Industrial Relations) Act 1996 (Vic)
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