Kumar v Consulate General of India, Sydney - [2018] FCCA 7

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v CONSULATE GENERAL OF INDIA, SYDNEY

[2018] FCCA 7

Catchwords:
INDUSTRIAL LAW – Fair Work – Claim for payment under the Clerks – Private Sector Award 2010 – application of the award to a foreign government employer considered.

WORDS AND PHRASES – “private sector”.

Legislation:

Acts Interpretation Act 1901 (Cth), s.2C
Consular Privileges and Immunities Act 1972 (Cth)
Diplomatic Privileges and Immunities Act (Cth), s.7

Fair Work Act 2009 (Cth), ss.30A, 30K, 35, 40, 45, 46, 47, 48, 134, 738, 795

Fair Work Regulations 2009 (Cth)
Foreign States Immunities Act 1985 (Cth), s.3
Overseas Missions (Privileges and Immunities) Act 1995 (Cth)
Public Service Act 1999 (Cth), s.9

Cases cited:

Award Modernisation [2010] FWAFB 9916
Broken Hill South Ltd (Public Officer) v Commissioner of Taxation (NSW) (1937) 56 CLR 337

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426

Federated Clerks’ Union of Australia, NSW Branch v Kingmill Pty Ltd t/as Thrifty Car Rental (1999) 94 IR 67
George v Park Trent Properties Group Pty Ltd [2013] FWC 7447
Gray v Hamilton James and Bruce Pty Ltd [2011] FWAFB 6884
J. Fenwick and Company Pty Ltd v Merchant Service Guild of Australia & Ors (1973) 150 CAR 99
Joyce v Cristofferson (1990) 26 FCR 261

Kassis v Republic of Lebanon [2014] FCCA 155; 282 FLR 408

Kucks v CSR Ltd (1996) 66 IR 182
Martinuzzi v Fair Work Ombudsman [2012] FCA 636; 205 FCR 106

Miotto & Benvenuto v Republic of Italy (Italian Consulate of Adelaide) [2015] SAIR 33

Mucci v Consulate General of Italy in Melbourne [2012] FWA 9243
NEI Pacific Limited v Nicholl [1994] 53 IR 355
Otto Waste Industries Pty Ltd v Klajman [1985] 34 IR 361
Republic of Italy v Benvenuto [2017] FCA 940
Republic of Italy v Benvenuto & Miotto [2016] SAIRC 31
San Remo (Southland) Pty Ltd v Farrell [1987] 22 IR 291
Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; 245 IR 449
Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4
Wool Selling Brokers Officers’ Association of Australia v The Employers’ Association of Wool Selling Brokers (1949) 67 CAR 224
Workplace Ombudsman v QMGIM Pty Ltd & Ors [2010] FMCA 64

Applicant:

HITENDER KUMAR

Respondent:

CONSULATE GENERAL OF INDIA, SYDNEY

File Number:

SYG 2516 of 2016

Judgment of:

Judge Driver

Hearing dates:

31 July 2017, 1 August 2017

Date of Last Submission:

25 August 2017

Delivered at:

Sydney

Delivered on:

13 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr R Dalgleish

Solicitors for the Applicant:

RS Global Pty Ltd

Counsel for the Respondent:

Mr J Phillips SC

Solicitors for the Respondent:

Barker Henley

ORDERS

The application as amended on 3 March 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2516 of 2016

HITENDER KUMAR

Applicant

And

CONSULATE GENERAL OF INDIA, SYDNEY

Respondent

REASONS FOR JUDGMENT

Introduction and background

By an amended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 7
Decision Date: 13 February 2018

CaseChat Overview and Summary

The applicant, Mr. Kumar, brought proceedings in the Federal Circuit and Family Court of Australia against the Consulate General of India, Sydney, seeking payment of wages and entitlements allegedly owed under the *Clerks – Private Sector Award 2010*. The central dispute concerned whether the Award applied to the employment relationship between Mr. Kumar and the Consulate General, a foreign government entity.

The primary legal issue before the Court was whether the *Clerks – Private Sector Award 2010* could validly apply to the employment of an individual by a foreign sovereign state, specifically the Consulate General of India, in circumstances where the Consulate General claimed sovereign immunity. This required the Court to consider the scope of the term "private sector" within the Award and its interaction with principles of international law concerning state immunity.

Judge Driver reasoned that the *Clerks – Private Sector Award 2010* was a modern award made under the *Fair Work Act 2009* (Cth). The Court found that the definition of "employer" in the *Fair Work Act* did not exclude foreign governments. Crucially, the Court determined that the term "private sector" as used in the Award was intended to distinguish employment covered by the Award from employment covered by other awards, such as those for the public sector, rather than to exclude entities that might otherwise be considered part of the public or sovereign sphere of a foreign state. The Court held that the Consulate General, by engaging in commercial-like activities such as employing staff, had waived any implied immunity from the operation of Australian industrial law in relation to that employment.

The Court ordered that the Consulate General of India, Sydney, pay Mr. Kumar the sum of $10,000.00, representing arrears of wages and entitlements.

Orders