Kumar v Consulate General of India, Sydney (No.2)
[2019] FCCA 400
•4 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v CONSULATE GENERAL OF INDIA, SYDNEY (No.2) | [2019] FCCA 400 |
| Catchwords: INDUSTRIAL LAW – Fair Work – underpayments – issue dealt with in principal judgment as having been resolved between the parties – issue in fact not resolved or agreement repudiated by the respondent – variation of orders in the principal judgment. |
| Legislation: Fair Work Act 2009 (Cth), s.570 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Kumar v Consulate General of India, Sydney [2018] FCCA 7 |
| Applicant: | HITENDER KUMAR |
| Respondent: | CONSULATE GENERAL OF INDIA, SYDNEY |
| File Number: | SYG 2516 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | Decided without oral hearing |
| Date of Last Submission: | 4 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Dalgleish |
| Solicitors for the Applicant: | RS Global Pty Ltd |
| No submissions by the Respondent |
ORDERS
The dismissal order made on 13 February 2018 is vacated.
The Court notes that the respondent is in default of compliance with Orders 1 – 3 made on 20 April 2018 and that those orders remain in force.
The Court declares that:
a)the respondent between 17 September 2010 and 13 March 2015 contravened s.44 of the Fair Work Act 2009 (Cth) (Fair Work Act) in that it contravened a provision of the National Employment Standards, namely the maximum weekly hours prescribed by s.61(2)(a) and s.62 of the Fair Work Act, by requiring the applicant to work from 8.30am to 6.30pm on weekdays, ie more than 38 hours per week, this requirement being unreasonable as the additional hours were required to be worked without overtime payments; and
b)the respondent during five separate periods between 17 September 2010 and 30 September 2014 contravened s.293 of the Fair Work Act in that it paid the applicant a base rate of pay less than that required by the national minimum wage order in force during those periods.
The respondent shall pay the applicant’s costs of the Application in a Case filed on 3 April 2018 on an indemnity basis.
The application as amended on 3 March 2017 is otherwise 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
On 13 February 2018, I gave judgment in the principal proceedings in this matter.[1] In that judgment, I dealt with the applicant’s (Mr Kumar) claims based upon the Clerks – Private Sector Award 2010 and found that the award did not apply. Consequently, I dismissed his application.
[1] Kumar v Consulate General of India, Sydney [2018] FCCA 7
Mr Kumar had made other claims which, so I was made to understand, had been resolved by the parties. I dealt with those claims at [3] in my principal judgment:
The Indian consulate conceded at the trial that Mr Kumar should receive the following amounts:
a)$605.17 under the National Minimum Wage Orders;
b)$8,032 under the employment contract between Mr Kumar and the Indian consulate for 9.5 hours per week at the contract overtime rate; and
c)an employment bonus of $3,540.
The concession was made by counsel for the respondent (the Consulate General) and I assume was made on instructions. In view of the agreement between the parties, I did not consider it necessary to make any orders in relation to the settled aspect of the proceedings.
Unfortunately, the settlement was not honoured by the Consulate General. The matter came back before me on an Application in a Case filed on 3 April 2018. Mr Kumar sought the following relief in that application:
That Order 1 made on 13 February 2018 be set aside and varied under rule 16.05 of the Federal Circuit Court Rules so that it is vacated and replaced with the following orders:
1.That the respondent pay to the applicant the sum of $12,177.17, being the total of the amounts it conceded at the hearing that the applicant should receive, as set out at paragraph 3 of the Judgment dated 13 February 2018.
2.That the respondent pay the applicant interest on the above sum up to judgment pursuant to s.76(2) and (3) of the Federal Circuit Court of Australia Act 1999 and s.547 of the Fair Work Act 2009 (Cth) (FW Act), at the rates set out in paragraph 2.2 of the Interest on Judgments Practice Note (GPN-JNT), namely 4% above the RBA cash rate.
3. Declarations that:
A.the respondent between 17 September 2010 and 13 March 2015 contravened s.44 of the FW Act in that it contravened a provision of the National Employment Standards, namely the maximum weekly hours prescribed by s.61(2)(a) and s.62 of the FW Act, by requiring the applicant to work from 8.30 am to 6.30 pm on weekdays, ie more than 38 hours per week, this requirement being unreasonable as the additional hours were required to be worked without overtime payments; and
B.the respondent during 5 separate periods between 17 September 2010 and 30 September 2014 contravened s.293 of the FW Act in that it paid the applicant a base rate of pay less than that required by the national minimum wage order in force during those periods.
4. That the respondent pay pecuniary penalties pursuant to s.546 of the FW Act as follows:
A.$10,200 in respect of the above contravention of s.44 of the FW Act; and
B.$10,200 in respect of the above contraventions of s.293 of the FW Act.
5.That the respondent pay the above pecuniary penalties to the applicant pursuant to s.546(3)(c) of the FW Act.
6.That, in addition to the amounts referred to above, the respondent contribute to the applicant's superannuation fund such an amount as will avoid the respondent being required to pay the superannuation guarantee charge, namely the sum of $393.70.
7.An order that the respondent pay the applicant his costs in respect of this Application in a Case, including the hearing on 20 April 2018.
8.Except for orders 1 to 7 above, the application as amended on 3 March 2017 otherwise be dismissed.
Those orders were sought as variations to the dismissal order in the principal proceedings under rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).
On 20 April 2018, I made the following orders:
1.The respondent pay to the applicant the sum of $12,177.17, being the total of the amounts it conceded at the hearing that the applicant should receive, as set out at paragraph 3 of the judgment dated 13 February 2018.
2. The respondent pay the applicant interest on the above sum up to judgment pursuant to s.76(2) and (3) of the Federal Circuit Court of Australia Act 1999 (Cth) and s.547 of the Fair Work Act 2009 (Cth), at the rates set out in paragraph 2.2 of the Interest on Judgments Practice Note (GPN-INT), namely 4% above the RBA cash rate.
3. In addition to the amounts referred to above, the respondent contribute to the applicant’s superannuation fund such an amount as will avoid the respondent being required to pay the superannuation guarantee charge, namely the sum of $393.70.
4. The parties have liberty to apply for further directions or orders on three days notice.
Counsel for the Consulate General attended as a courtesy to the Court but made no submissions.
Mr Kumar did not receive any payment pursuant to those orders (or the prior settlement) and the matter came back before me again. By that stage, the solicitors for the Consulate General had withdrawn as they had been unable to obtain any instructions. The solicitors for Mr Kumar drew my orders of 20 April 2018 directly to the attention of the Consulate General by letter dated 25 May 2018, sent by registered post.
I gave further directions on 10 August 2018. The solicitors for Mr Kumar had notified the Consulate General of that directions hearing by letter dated 15 June 2018 but there was no attendance by or on behalf of the Consulate General.
Mr Kumar now seeks the remaining relief in his Application in a Case.
I have before me as evidence the affidavits of Mukund Sharma (solicitor for Mr Kumar) made on 3 April 2018 and 9 August 2018. Mr Sharma deposes as to the litigation history of the matter, the various items of correspondence and the particulars of the conceded contraventions.
Consideration
The Consulate General has had more than 12 months to deal with the settled part of the proceedings. It is painfully apparent that it has repudiated that settlement, which had been negotiated on its behalf by its legal representatives. The Consulate General has also chosen to ignore my orders made on 20 April 2018.
There can be no real doubt that the Consulate General is in breach of the Fair Work Act 2009 (Cth) (Fair Work Act) in respect of the national minimum wage and is in breach of the contract of employment and the Fair Work Act in relation to maximum weekly hours and overtime. Given the repudiation of the settlement of that aspect of the proceedings between the parties, it is appropriate that the Court should revisit its orders and make the declarations sought by Mr Kumar.
Mr Kumar also seeks pecuniary penalties under the Fair Work Act against the Consulate General. In the principal proceedings, it was agreed between the parties that the issue of liability would be dealt with first and that the question of penalties would be dealt with later. My principal judgment established that there was no liability under the Clerks – Private Sector Award 2010. The only other avenue of potential liability had been dealt with by the now repudiated settlement. It thus appeared, at the time of my principal judgment, that there would not need to be any penalty hearing. The Consulate General had foreshadowed prior to that judgment that it would rely upon foreign state immunity in relation to penalties. I assume that it would continue to do so. I am unwilling to deal with an important issue of foreign state immunity on the papers and without having heard from a representative of the foreign state. I will, accordingly, make no order in relation to penalty. In any event, the utility of the making of further orders, which are likely to be ignored, as the orders to this point have been, is highly questionable.
Nevertheless, Mr Kumar is entitled to his costs of the Application in a Case. He has been forced to bring that application and to seek variation of the orders made by the Court in the principal judgment, because of the intransigence of the Consulate General, for which there is no evident justification. Mr Kumar seeks those costs on an indemnity basis under s.570(2)(b) of the Fair Work Act because of the unreasonable acts or omissions of the Consulate General which caused him to incur those costs. I agree. This Court’s power to award costs in Fair Work proceedings was very recently confirmed by the Full Federal Court in Liu v Stephen Grubits & Associates.[2] The Court’s power arises from s.570 and that power is a general one, once the preconditions for the exercise of the power have been met. Those preconditions have been met.
[2] [2019] FCAFC 24
I will make the declarations sought and make an indemnity costs order.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 March 2019
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