Scotto v Scala Bros Pty Ltd

In *Scotto v Scala Bros Pty Ltd*, the applicant, Mr Scotto, brought proceedings against the respondent, Scala Bros Pty Ltd, alleging underpayment of wages and entitlements. The dispute concerned whether Mr Scotto was entitled to recover amounts that became due more than six years prior to the commencement of the proceedings, despite the conduct concluding within that six-year period. The matter was heard by Judge Cameron.

The court was required to determine two primary legal issues. Firstly, it needed to ascertain whether events occurring outside the six-year limitation period, but which were part of a continuous course of conduct that concluded within the limitation period, could form the basis of a cause of action that was within time. Secondly, the court had to consider the application of the relevant provisions of the *Workplace Relations Act 1996* (Cth) (WR Act) and the *Fair Work Act 2009* (Cth) (IR Act) to the claims, particularly in light of the repeal of the WR Act and the transitional provisions.

Judge Cameron reasoned that the limitation period for applications for orders for the payment of money under the IR Act, as stipulated in s 369(3), refers to when the money became due. However, s 357(3) of the IR Act provides a six-year limitation period for instituting proceedings for a civil penalty. The court found that where a contravention constitutes a course of conduct, and that course of conduct concludes within the limitation period, then the entire course of conduct can be the subject of proceedings, even if parts of it occurred outside the limitation period. This principle was applied to allow claims for underpayments that occurred outside the six-year period, provided they were part of a continuous course of conduct that extended into the limitation period. The court also confirmed that the WR Act continued to apply to causes of action arising before its repeal due to transitional provisions, and that the IR Act was preserved to the extent it was relevant to the proceedings.

The court made orders for the payment of money to the applicant, Mr Scotto, representing underpayments of wages and annual leave entitlements, and awarded interest on those sums.