Kumar v Consulate General of India, Sydney

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.