Shergill v Singh

Case [2023] FCA 1346

FEDERAL COURT OF AUSTRALIA

Shergill v Singh [2023] FCA 1346  

File number: NSD 991 of 2021
Judgment of: RAPER J
Date of judgment: 3 November 2023
Catchwords:

INDUSTRIAL LAW – alleged contraventions of ss 44, 45, 90(2), 323 and 536 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, was not allowed meal breaks and not given entitlements in accordance with the Act and the Award – application allowed

PRACTICE AND PROCEDURE – application for order permitting the hearing to proceed in absence of respondent pursuant to r 30.21(1)(b)(i) of the Federal Court Rules 2011 (Cth) – where respondent has not filed a notice of address for service nor any other material – application allowed

PUBLIC INTERNATIONAL LAW – foreign state immunity – where respondent was the Indian High Commissioner to Australia – whether respondent able to claim that the applicant’s employer was a foreign state for the purpose of s 12(1) of the Foreign States Immunities Act 1985 (Cth) – diplomatic immunity – whether respondent able to claim diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961 – 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 Convention – consideration of Reyes v Al-Malki [2017] UKSC 61; 3 WLR 923

Legislation:

Diplomatic Privileges and Immunities Act 1967 (Cth) s 7

Fair Work Act 2009 (Cth) Ch 2, Pt 2-2, ss 13, 14, 14(1)(f), 44, 45, 90(2), 143(7)(a), 323, 323(1)(c), 536, 545, 545(5), 562

Federal Court of Australia Act 1976 (Cth) s 51A

Foreign States Immunities Act 1985 (Cth) ss 3, 9, 12(1), 12(3)

Fair Work Regulations 2009 (Cth) regs 3.45, 3.46

Federal Court Rules 2011 (Cth) rr 10.43(1)(a), 10.49(c)(i), 30.21(1)(b)(i)

Uniform Civil Procedure Rules 2005 (NSW) r 29.7

Miscellaneous Award 2010 cll 4.1, 4.2, 10.2, 14, 14.1, 18, 20, 20.2, 21, 22.1, 22.2, 23.1, 23.3, Sch B

Explanatory Memorandum, Fair Work Bill 2008 (Cth)

Vienna Convention on Diplomatic Relations. Opened for signature 18 April 1961. 500 UNTS 95 (entered into force 24 April 1964) arts 1(e), 31(1), 39, 39(2)
Cases cited:

4 yearly review of modern awards – Miscellaneous Award 2010 [2020] FWCFB 754

4 yearly review of modern awards – Miscellaneous Award 2010 [2020] FWCFB 1589

Centennial Northern Mining Services Pty Ltd v CFMEU (No 2) [2015] FCA 136

Fair Work Ombudsman v Lam [2021] FCA 205

Mahmood v Chohan [2021] FCA 973

Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission [2022] FCAFC 170; 295 FCR 106

Reyes v Al-Malki [2017] UKSC 61; 3 WLR 923

United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort [2018] FWCFB 128

Zomba Production Music (Australia) Pty Ltd v Roadhouse Productions Pty Ltd (in liq) [2001] FCA 1526; 190 ALR 288

Neil I,…

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Details
AGLC
Shergill v Singh [2023] FCA 1346
Case
[2023] FCA 1346
Decision Date

CaseChat Overview and Summary

In the case of Shergill v Singh, the applicant, Seema Shergill, sought relief from the Federal Circuit and Family Court of Australia against the respondent, Mr Singh, who was the Indian High Commissioner to Australia. Shergill alleged that Singh had contravened several sections of the Fair Work Act 2009 (Cth) and clauses of the Miscellaneous Award 2010 by employing her as a domestic worker without providing her with proper working conditions, including excessive hours, lack of meal breaks, and inadequate entitlements. Additionally, Shergill sought an order permitting the hearing to proceed in the absence of Singh, who had not filed any necessary documents or notices.

The court had to determine whether Shergill's employer, Singh, could claim immunity under the Foreign States Immunities Act 1985 (Cth) and the Vienna Convention on Diplomatic Relations 1961, given that Singh was a foreign diplomat. The court also needed to decide whether Shergill's employment constituted an act performed in the exercise of functions as a member of the mission, which would confer immunity.

The court found that Shergill's employment did not qualify for diplomatic immunity as she was not employed by the High Commission and did not perform any official duties for the Commission. Instead, she worked as a domestic worker for Singh and his wife. The court held that the provisions of the Fair Work Act applied, and Singh could not claim immunity from the allegations. The court granted Shergill's application for the hearing to proceed in Singh's absence and made significant declarations of contravention. The court ordered Singh to pay Shergill $136,276.62 plus interest for the loss suffered due to the contraventions of the Fair Work Act and scheduled a further hearing to determine the penalties.

The final orders included the payment of $136,276.62 plus interest by Singh to Shergill within 60 days, leave for the parties to apply to vary the declarations and orders within 14 days, liberty for Shergill to apply if the orders were not complied with, and a case management hearing to schedule the penalty hearing.

Orders

Orders of the court

1. Pursuant to s 545(1) of the FW Act, the respondent pay $136,276.62 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 applicant have liberty to apply on seven days’ notice if the above orders are not complied with.

4. The matter be listed for a further case management hearing with respect to the timetabling of the penalty hearing at 9:30am on Friday 24 November 2023.

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

Background

Background to the litigation

Ms Shergill relied upon the following evidence for the purposes of her application: (a)An affidavit of Rachael Grivas affirmed 17 December 2021; (b)An affidavit of Seema Shergill affirmed 23 January 2023; (c)An affidavit of Rachael Grivas affirmed 15 August 2023; (d)An affidavit of Seema Shergill affirmed 16 August 2023; and(e)An affidavit of Rachael Grivas affirmed 22 September 2023.The facts Ms Shergill was born in India. In or around late 2013, Ms Shergill accepted a job to work as a domestic worker for Mr Suri, who was then the Indian Ambassador to Egypt. Ms Shergill travelled to Cairo in 2014 with Mr Suri. Mr Suri took possession of Ms Shergill’s passport for the entire period that Ms Shergill worked for him in Cairo. On 26 February 2015, Mr Suri was announced as the Indian High Commissioner to Australia. Mr Suri asked Ms Shergill in around February 2015 if she would come to Australia with him and his wife to work for them for three years as a domestic worker at their residence in Australia, which Ms Shergill agreed to do. Ms Shergill recalls that Mr Suri and his office in Cairo undertook the arrangements for Ms Shergill’s Australian visa. Ms Shergill deposed:I recall that I was asked by Mr Suri to sign some English language documents as part of this process, which I did. I could not read English at that time. I annex to this affidavit and mark “SS3” and “SS4”, two documents obtained by my lawyers Clayton Utz on 24 May 2017, in a Freedom of Information request to the Department of Foreign Affairs and Trade. “SS3” shows that I was granted a Diplomatic Visa Subclass 995P. “SS4” is a document which I signed, which appears to notify the Department of Foreign Affairs and Trade of my arrival. I did not fill out any of the details on the form at “SS4”, nor was I asked any questions for the purposes of filling it out.(Emphasis in original.) Document “SS3” is an internal DFAT document which contains the recommendation from the Protocol Branch for Ms Shergill to be granted a Diplomatic Visa Subclass 995P to “join the High Commission of India in Canberra as a Staff Member”. Document “SS4” is a Notification of Arrival of Staff Member of Diplomatic Mission, Consular Post, International Organisation or Overseas Mission to DFAT of Ms Shergill’s arrival in Australia. It describes the “Mission/Post” as “High Commission of India, Canberra” and specifies that her title would be “Service Staff” with the primary functions of “Reception and Entertainment of Guests”. However, the evidence revealed that Ms Shergill was not employed by the High Commission nor performed any duties for the Commission. Ms Shergill was not asked any questions for the purpose of the completion of the Notification Form. The form states that her residential address would be 3 Moonah Place, Yarralumla. However, Ms Shergill never lived at this address. It was Ms Shergill’s evidence that she worked (and resided) for a year exclusively at Mr Suri’s residence at 34 Mugga Way, Red Hill. It was also her evidence that she only ever took direction from Mr Suri or his wife as to the performance of her duties. In addition, it was her evidence that her duties were not those of “Reception and Entertainment” but those of a domestic worker in a residential household.

Evidence

Evidence Before The Court

Further, for the following reasons, I allow Ms Shergill’s application on the question of liability, noting that the question of penalties remains to be determined at a later date. Filed evidence Ms Shergill relied upon the following evidence for the purposes of her application: (a)An affidavit of Rachael Grivas affirmed 17 December 2021; (b)An affidavit of Seema Shergill affirmed 23 January 2023; (c)An affidavit of Rachael Grivas affirmed 15 August 2023; (d)An affidavit of Seema Shergill affirmed 16 August 2023; and(e)An affidavit of Rachael Grivas affirmed 22 September 2023.The facts Ms Shergill was born in India. In or around late 2013, Ms Shergill accepted a job to work as a domestic worker for Mr Suri, who was then the Indian Ambassador to Egypt. Ms Shergill travelled to Cairo in 2014 with Mr Suri. Mr Suri took possession of Ms Shergill’s passport for the entire period that Ms Shergill worked for him in Cairo. On 26 February 2015, Mr Suri was announced as the Indian High Commissioner to Australia. Mr Suri asked Ms Shergill in around February 2015 if she would come to Australia with him and his wife to work for them for three years as a domestic worker at their residence in Australia, which Ms Shergill agreed to do. Ms Shergill recalls that Mr Suri and his office in Cairo undertook the arrangements for Ms Shergill’s Australian visa. Ms Shergill deposed:I recall that I was asked by Mr Suri to sign some English language documents as part of this process, which I did. I could not read English at that time. I annex to this affidavit and mark “SS3” and “SS4”, two documents obtained by my lawyers Clayton Utz on 24 May 2017, in a Freedom of Information request to the Department of Foreign Affairs and Trade. “SS3” shows that I was granted a Diplomatic Visa Subclass 995P. “SS4” is a document which I signed, which appears to notify the Department of Foreign Affairs and Trade of my arrival. I did not fill out any of the details on the form at “SS4”, nor was I asked any questions for the purposes of filling it out.(Emphasis in original.) Document “SS3” is an internal DFAT document which contains the recommendation from the Protocol Branch for Ms Shergill to be granted a Diplomatic Visa Subclass 995P to “join the High Commission of India in Canberra as a Staff Member”. Document “SS4” is a Notification of Arrival of Staff Member of Diplomatic Mission, Consular Post, International Organisation or Overseas Mission to DFAT of Ms Shergill’s arrival in Australia. It describes the “Mission/Post” as “High Commission of India, Canberra” and specifies that her title would be “Service Staff” with the primary functions of “Reception and Entertainment of Guests”. However, the evidence revealed that Ms Shergill was not employed by the High Commission nor performed any duties for the Commission. Ms Shergill was not asked any questions for the purpose of the completion of the Notification Form. The form states that her residential address would be 3 Moonah Place, Yarralumla. However, Ms Shergill never lived at this address. It was Ms Shergill’s evidence that she worked (and resided) for a year exclusively at Mr Suri’s residence at 34 Mugga Way, Red Hill. It was also her evidence that she only ever took direction from Mr Suri or his wife as to the performance of her duties. In addition, it was her evidence that her duties were not those of “Reception and Entertainment” but those of a domestic worker in a residential household.

Decision

Reasons for decision

Given cll 18 and 23.1 impose no obligation on an employer, no declaratory relief may be sought under these provisions.Conclusion For the forgoing reasons, I am satisfied that it is appropriate in all the circumstances to:(a)make, in large part, the declarations of contravention sought by Ms Shergill; (b)order Mr Suri to pay Ms Shergill $136,276.62, plus interest, for the loss suffered by reason of Mr Suri’s contraventions of the FW Act. I will list the matter for timetabling of the penalty hearing on 24 November 2023.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.