Danaratna v Arunatilaka

Case [2024] FCA 918

FEDERAL COURT OF AUSTRALIA

Danaratna v Arunatilaka [2024] FCA 918  

File number(s): NSD 171 of 2022
Judgment of: RAPER J
Date of judgment: 15 August 2024
Catchwords:

INDUSTRIAL LAW – alleged contraventions of ss 44, 45, 90(2), 323(1) and 536(1) of the Fair Work Act 2009 (Cth) – where applicant alleges several clauses of the Miscellaneous Award 2010 have been contravened – where applicant worked as a domestic worker for the respondent – where applicant worked excessive hours seven days per week, was not given meal breaks and leave and was not paid her entitlements in accordance with the Act and the Award – application allowed

PUBLIC INTERNATIONAL LAW – foreign state immunity – where respondent was the Deputy High Commissioner of the Sri Lankan High Commission in Australia – diplomatic immunity – whether the employment of the applicant constituted an act performed in the exercise of functions as a member of the mission pursuant to art 39(2) of the Vienna Convention on Diplomatic Relations 1961
Legislation:

Diplomatic Privileges and Immunities Act 1967 (Cth) s 7

Fair Work Act 2009 (Cth) ss 14, 14(1)(f), 44, 45, 47, 48, 49, 90, 90(2), 323, 323(1), 323(2), 536, 536(1), 545(1), 562

Foreign States Immunities Act 1985 (Cth)

Federal Court Rules 2011 (Cth) r 30.21(1)(b)(i)

Vienna Convention on Diplomatic Relations. Opened for signature 18 April 1961. 500 UNTS 95 (entered into force 24 April 1964) art 39(2)
Cases cited:

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435

Collier v Sunday Referee Publishing Co [1940] 2 KB 647

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165

Reyes v Al-Malki [2017] UKSC 61; [2019] AC 735

Shergill v Singh [2023] FCA 1346; 326 IR 428

Neil I, Chin D, Parkin C, The Modern Contract of Employment (3rd ed, Thomson Reuters, 2023)
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 66
Date of hearing: 29 July 2024
Counsel for the Applicant: Ms P Bindon
Solicitor for the Applicant: Clayton Utz
Legal representative for the Respondent: The Respondent did not appear

ORDERS

NSD 171 of 2022
BETWEEN:

HORATHAL PEDI GEDARA PRIYANKA DANARATNA

Applicant
AND:

HIMALEE SUBHASHINI DE SILYA ARUNATILAKA

Respondent

ORDER MADE BY:

RAPER J

DATE OF ORDER:

15 AUGUST 2024

THE COURT DECLARES THAT:

1.The respondent contravened the following civil remedy provisions in the period between 12 March 2016 and 14 August 2018:

(a)section 323(1) of the Fair Work Act 2009 (Cth) by failing to pay the applicant amounts payable to her in relation to the performance of work in full, at least monthly and by one of the methods specified in s 323(2) of the FW Act;

(b)section 536(1) of the FW Act by failing to provide the applicant with a pay slip within one working day of paying her an amount in relation to her performance of work;

(c)section 44 of the FW Act by contravening…

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Danaratna v Arunatilaka [2024] FCA 918
Case
[2024] FCA 918
Decision Date

CaseChat Overview and Summary

The case of Danaratna v Arunatilaka involved Ms Danaratna, a domestic worker, who alleged that her employer, Ms Arunatilaka, had contravened several provisions of the Fair Work Act 2009 (Cth) and clauses of the Miscellaneous Award 2010. Ms Danaratna worked for Ms Arunatilaka, who was the Deputy High Commissioner of the Sri Lankan High Commission in Australia, and claimed that she was subjected to excessive working hours, denied meal breaks and leave, and was not paid her entitlements as per the Act and the Award. The legal issues before the court included whether Ms Arunatilaka had contravened specific sections of the Fair Work Act and the Award, and if Ms Arunatilaka, as a diplomat, was immune from these claims under international law.

The court found that Ms Arunatilaka had indeed contravened the Fair Work Act and the Award by exploiting Ms Danaratna's vulnerable position. It was established that Ms Arunatilaka had arranged for Ms Danaratna to sign documents without proper translation or explanation, resulting in Ms Danaratna being unaware of the terms of her employment. The court also noted the troubling lack of scrutiny by the Department of Immigration and Border Protection, which had granted Ms Danaratna a visa despite clear indications that she would not be paid or protected under the Act or the Award.

The court ordered Ms Arunatilaka to pay Ms Danaratna $374,151.90 plus interest and made declarations regarding the contraventions of the Fair Work Act and the Award. The matter was listed for a further case management hearing to timetable the penalty hearing.

Orders

Orders of the court

1. Pursuant to s 545(1) of the FW Act, the respondent pay $374,151.90 plus interest, to the applicant within 60 days of these orders.

2. The parties have leave to make any application to vary the above declarations and orders within 14 days, or such longer time as may be allowed, with notification of such application to be provided by email to the associate to Justice Raper.

3. The matter be listed for a further case management hearing with respect to the timetabling of the penalty hearing at 10:00 am on 29 August 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

At hearing Ms Danaratna relied upon the following evidence, in support of her application:(a)an affidavit of Ms Kylie-Jade Crawford affirmed 13 February 2024; (b)affidavits of Ms Robyn Lewis affirmed 10 June 2024 and 22 July 2024;(c)her own affidavit affirmed 11 June 2024; and(d)an affidavit of Ms Lal Kuruppu, affirmed 11 June 2024.The Facts Between 2002 and 2015 Ms Danaratna performed work as an office cleaner in Kandy, Sri Lanka. Ms Arunatilaka was a friend of her former employer’s wife. In that context, Ms Arunatilaka approached Ms Danaratna and told her that she was travelling to Australia to work as the Deputy High Commissioner of Sri Lanka and asked if she would like to come to Australia to work as her domestic servant. Ms Danaratna went to Colombo to meet with Ms Arunatilaka and prepared a meal for her so that Ms Arunatilaka could test her culinary skills. Ms Danaratna had never left Sri Lanka, prior to receiving Ms Arunatilaka’s assistance in obtaining a passport and being granted a subclass 403 domestic worker visa to perform work as Ms Arunatilaka’s private domestic employee. Ms Danaratna was (and remains) unable to speak or read in English. Ms Arunatilaka arranged for Ms Danaratna to sign all the relevant documents which would facilitate her passage to Australia. Ms Danaratna has no recollection of Ms Arunatilaka translating nor explaining to her the terms of any of the documents. The suite of documents comprised an Application for a Temporary Work (International Relations) visa, the Advice by a migration agent/exempt person of providing immigration assistance (Form 956), a Subclass 403 domestic worker stream employee declaration form and a contract of employment. The Application for a Temporary Work visa, described her position as being one of a “domestic worker” where her duties would involve “cooking, cleaning and other household chores” and that Ms Arunatilaka was the “organisation or individual for whom the work or activity will be undertaken”. The address at which the activity was to be undertaken was “No 1, Gawler Crescent, Deakin 2600”. Curiously, whilst the form indicates that Ms Danaratna would receive salary/wages, accommodation, meal allowance and other living allowance, the monetary value for each of those amounts is left blank. By correspondence dated 20 July 2015, the Sri Lankan Ministry of Foreign Affairs stated to the Australian High Commission in Colombo: The Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka presents its compliments to the (Australian High Commission in Sri Lanka and … has the hounor (sic) to inform that Ms. Hortal Pedi Gedara Priyanka Danaratna. Private Domestic employee of Mrs. Himalee Subhashini De Silva Arunatilaka who has been appointed as Deputy High Commissioner to the Sri Lanka High Commission in Canberra is scheduled to leave for Australia shortly. The Ministry wishes to inform the following:1. Ms. Danaratna, is a Sri Lankan citizen (carrying a valid ordinary passport …) and neither a citizen nor a permanent resident of any other country; 2. Ms. Danaratna undertakes work only as a domestic worker of Mrs. Arunatilaka’s private household;3. Ms. Danaratna will leave Australia at the conclusion of Mrs. Arunatilaka’s term at the Sri Lanka Mission or when Mrs. Arunatilaka leaves Australia, whichever comes first; 4. Both Mrs. Arunatilaka and her spouse are not related to Ms. Danaratna; and5. Ms. Danaratna is schedule to leave for Canberra on 20 August 2015. The monthly emoluments, allowances, return airfare and cost of medical care of Ms. Danaratna will be met by the Sri Lanka Mission during her assignment with Mrs. Arunatilaka. The Ministry of Foreign Affairs would appreciate if the esteemed High Commission could grant appropriate gratis visa to Ms. Horathal Pedi Gedara Priyanka Danaratna, Private Domestic employee of Mrs. Himalee Subhashini De Silva Arunatilaka. The passport: duly filled visa application form, and other relevant documents are enclosed herewith. The Ministry of Foreign Affairs of the Democratic Republic of Sri Lanka avails itself of this opportunity to renew the High Commission of Australia in Sri Lanka the assurances of its highest consideration.

Evidence

Evidence Before The Court

For the following reasons, Ms Danaratna has established that Ms Arunatilaka has breached the FW Act and is entitled to the declaratory and compensatory relief she seeks. The question of penalty remains to be determined at a later stage. Filed Evidence At hearing Ms Danaratna relied upon the following evidence, in support of her application:(a)an affidavit of Ms Kylie-Jade Crawford affirmed 13 February 2024; (b)affidavits of Ms Robyn Lewis affirmed 10 June 2024 and 22 July 2024;(c)her own affidavit affirmed 11 June 2024; and(d)an affidavit of Ms Lal Kuruppu, affirmed 11 June 2024.The Facts Between 2002 and 2015 Ms Danaratna performed work as an office cleaner in Kandy, Sri Lanka. Ms Arunatilaka was a friend of her former employer’s wife. In that context, Ms Arunatilaka approached Ms Danaratna and told her that she was travelling to Australia to work as the Deputy High Commissioner of Sri Lanka and asked if she would like to come to Australia to work as her domestic servant. Ms Danaratna went to Colombo to meet with Ms Arunatilaka and prepared a meal for her so that Ms Arunatilaka could test her culinary skills. Ms Danaratna had never left Sri Lanka, prior to receiving Ms Arunatilaka’s assistance in obtaining a passport and being granted a subclass 403 domestic worker visa to perform work as Ms Arunatilaka’s private domestic employee. Ms Danaratna was (and remains) unable to speak or read in English. Ms Arunatilaka arranged for Ms Danaratna to sign all the relevant documents which would facilitate her passage to Australia. Ms Danaratna has no recollection of Ms Arunatilaka translating nor explaining to her the terms of any of the documents. The suite of documents comprised an Application for a Temporary Work (International Relations) visa, the Advice by a migration agent/exempt person of providing immigration assistance (Form 956), a Subclass 403 domestic worker stream employee declaration form and a contract of employment. The Application for a Temporary Work visa, described her position as being one of a “domestic worker” where her duties would involve “cooking, cleaning and other household chores” and that Ms Arunatilaka was the “organisation or individual for whom the work or activity will be undertaken”. The address at which the activity was to be undertaken was “No 1, Gawler Crescent, Deakin 2600”. Curiously, whilst the form indicates that Ms Danaratna would receive salary/wages, accommodation, meal allowance and other living allowance, the monetary value for each of those amounts is left blank. By correspondence dated 20 July 2015, the Sri Lankan Ministry of Foreign Affairs stated to the Australian High Commission in Colombo: The Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka presents its compliments to the (Australian High Commission in Sri Lanka and … has the hounor (sic) to inform that Ms. Hortal Pedi Gedara Priyanka Danaratna. Private Domestic employee of Mrs. Himalee Subhashini De Silva Arunatilaka who has been appointed as Deputy High Commissioner to the Sri Lanka High Commission in Canberra is scheduled to leave for Australia shortly. The Ministry wishes to inform the following:1. Ms. Danaratna, is a Sri Lankan citizen (carrying a valid ordinary passport …) and neither a citizen nor a permanent resident of any other country; 2. Ms. Danaratna undertakes work only as a domestic worker of Mrs. Arunatilaka’s private household;3. Ms. Danaratna will leave Australia at the conclusion of Mrs. Arunatilaka’s term at the Sri Lanka Mission or when Mrs. Arunatilaka leaves Australia, whichever comes first; 4. Both Mrs. Arunatilaka and her spouse are not related to Ms. Danaratna; and5. Ms. Danaratna is schedule to leave for Canberra on 20 August 2015. The monthly emoluments, allowances, return airfare and cost of medical care of Ms. Danaratna will be met by the Sri Lanka Mission during her assignment with Mrs. Arunatilaka. The Ministry of Foreign Affairs would appreciate if the esteemed High Commission could grant appropriate gratis visa to Ms. Horathal Pedi Gedara Priyanka Danaratna, Private Domestic employee of Mrs. Himalee Subhashini De Silva Arunatilaka. The passport: duly filled visa application form, and other relevant documents are enclosed herewith. The Ministry of Foreign Affairs of the Democratic Republic of Sri Lanka avails itself of this opportunity to renew the High Commission of Australia in Sri Lanka the assurances of its highest consideration.

Decision

Reasons for decision

Whilst there was no necessity to decide this issue and it was not determinative in this case, I would make the following observation. It is not without concern that it would have been clear to the Department of Immigration and Border Protection (as it then was), by reason of the materials provided to it in support of the Subclass 403 domestic worker stream visa that Ms Danaratna was not going to paid nor enjoy the protections under the Award or the FW Act. There was no apparent attempt to conceal the arrangement by Ms Arunatilaka. It is perplexing that the Department, in the circumstances, did nothing and granted the visa in the circumstances. I accept that the Department was not involved in this application nor invited to make any submission in this regard. However, it may have been the case, that insufficient scrutiny was given by the Department prior to the inception of this arrangement. If there had been, the circumstances of Ms Danaratna’s employment may have been very different. Conclusion For these reasons I am satisfied that it is appropriate to:(a)make declarations directed to the conduct about which Ms Danaratna claims but in a form different from that proposed by Ms Danaratna;(b)order Ms Arunatilaka pay Ms Danaratna $374,151.90, plus interest, for the loss suffered by reason of Ms Arunatilaka’s contravening conduct under the FW Act; and(c)list the matter for case management to timetable the matter for a penalty hearing at 10:00am on 29 August 2024.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.