Diplomatic Immunity not available to former Indian High Commissioner to Australia for breaches of the Fair Work Act

In an interesting decision traversing both industrial relations and public international law, the Federal Court has found that the former Indian High Commissioner to Australia committed significant breaches of the Fair Work Act between September 2015 and May 2016.  The former Indian High Commissioner to Australia, Navdeep Suri Singh, has been ordered by the Federal Court to pay his former housekeeper, Seema Shergill, almost $190,000 for loss suffered by reason of Mr Suri’s contraventions of the Fair Work Act.

Background

Ms Shergill commenced working for Mr Suri in 2014 in Cairo, Egypt, while Mr Suri was the Indian Ambassador to Egypt.  Ms Shergill accepted an offer to work for Mr Suri in Australia as a domestic cleaner at his private residence after Mr Suri was announced as the Indian High Commissioner to Australia in February 2015. 

Ms Shergill worked and lived at Mr Suri’s residence in Red Hill, Australian Capital Territory, between 17 April 2015 and 26 May 2016.  In what the Federal Court described as ‘employment conditions [bearing] no resemblance to what one would expect under Australian law’, Ms Shergill:

  • had her passport taken from her;

  • worked seven days per week for around 17.5 hours per day (from 5:00 am to 11:30 pm);

  • was not permitted to take leave;

  • was only allowed outside for brief periods each day when looking after Mr Suri’s dog; and

  • was paid every three to four months into an Indian bank account, with income during the eight-month period totalling $2,496.08.

Ms Shergill performed domestic housekeeping duties such as cleaning, cooking, gardening and laundry.  Importantly, Ms Shergill was not performing work as a member of the Indian High Commission.

Ms Shergill escaped Mr Suri’s residence before seeking assistance from the Salvation Army and the Fair Work Ombudsman.

Federal Court Proceedings

Ms Shergill commenced proceedings in the Federal Court for recovery of unpaid wages under the Fair Work Act.  The matter was determined in the absence of Mr Suri who failed to participate in the proceedings or appear at the hearing of the matter.

As a preliminary matter, the Federal Court concluded that it had jurisdiction to determine Ms Shergill’s claim.  This conclusion required the Court to find that Mr Suri did not have the protection of foreign state or diplomatic immunity arising under:

  • the Foreign States Immunities Act 1985 (Cth); or

  • the Vienna Convention on Diplomatic Relations given force in Australia through the Diplomatic Privileges and Immunities Act 1967 (Cth).

The Court found that Ms Shergill was a national system employee and was classified at level 2 of the Miscellaneous Award 2010 (the Award) during her employment.  In accordance with the Award, Ms Shergill was entitled to:

  • work ordinary hours as a full-time employee being an average of 38 per week;

  • the minimum wage applicable to a level 2 classification under the Award;

  • work ordinary hours not exceeding 10 hours on any day (or 12 by agreement);

  • not be required to work for more than five hours without an unpaid break;

  • overtime and penalty rates; and

  • annual leave loading in additional to payment for annual leave.

Accordingly, Mr Suri contravened section 45 of the Fair Work Act by contravening various provisions of the Award.  Mr Suri was ordered to pay Ms Shergill $136,276.62 plus interest of $53,427.09 for these contraventions.  The matter has also been listed for a further hearing to determine penalties for Mr Suri’s breaches of the Fair Work Act.

This is a significant decision clarifying that a former diplomat has no diplomatic immunity against claims arising under the Fair Work Act once the diplomat has left their post.

Jasmine O’Brien
Principal
T +61 3 9611 0149
jobrien@sladen.com.au

Jordan Bauer
Senior Associate
T +61 3 9611 0130
jbauer@sladen.com.au

Jordan Bauer