Director of the Fair Work Building Industry Inspectorate v Giovanni Italiano

The Director of the Fair Work Building Industry Inspectorate (the applicant) brought proceedings against Giovanni Italiano (the respondent) in the Federal Court of Australia. The dispute concerned the respondent's alleged contravention of section 550 of the Fair Work Act 2009 (Cth) by being knowingly concerned in the contravention of section 550 of the Fair Work Act 2009 (Cth) by P & P Italiano Holdings Pty Ltd (the corporation). The applicant alleged that the corporation, as a national system employer, had contravened the Fair Work Act by entering into employment contracts with an individual that purported to be for a fixed term of four years, when those contracts were, in substance, for an indefinite period and thus were in contravention of section 123 of the Fair Work Act.

The court was required to determine whether the respondent, as a director of the corporation, was knowingly concerned in the corporation's alleged contravention of the Fair Work Act. Specifically, the court had to consider whether the respondent had the requisite knowledge that the corporation's conduct constituted a contravention of the Fair Work Act. This involved examining the respondent's role in the corporation, his awareness of the employment contracts entered into with Mr Gerges, and the nature of those contracts.

The court found that the corporation was a constitutional corporation and a national system employer. It also found that the corporation had entered into two written contracts of employment with Mr Gerges, each for a fixed term of four years. The court noted that the letters of employment referred to the employing entity as "P & P Italiano Limestone Contractors Pty Ltd ATF the P & P Italiano Family Trust," but that no such corporation existed. The court determined that the respondent, along with Mr Marsico, was a director of the corporation and had led Mr Gerges to believe that they were responsible for carrying on the business of his employer. The court concluded that the respondent was knowingly concerned in the corporation's contravention of section 123 of the Fair Work Act, as he was aware of the terms of the employment contracts and the fact that they were entered into by the corporation.

The court ordered that the respondent was liable for the contravention of section 550 of the Fair Work Act 2009 (Cth) by P & P Italiano Holdings Pty Ltd.