Shergill v Singh [2023] FCA 1346

Shergill v Singh [2023] FCA 1346

The respondent was personally the applicant's employer and was a national system employer carrying on the activity of running a household in the Australian Capital Territory. The applicant was a national system employee covered by the Miscellaneous Award 2010. Neither foreign state immunity nor residual diplomatic immunity applied because the applicant was not employed by the High Commission of India and the engagement of a private domestic worker was not an act performed in the exercise of the respondent's diplomatic functions. On the uncontested evidence, the applicant worked excessive hours, was not paid in full or at least monthly, was not provided pay slips, did not receive annual...

Jurisdiction
Australia
Judgment Date
03 November 2023
Procedural Posture
Fair Work Act Application Alleging Contraventions of Civil Remedy Provisions and Award Obligations / Liability Hearing Proceeded in the Absence of the Respondent; Application Allowed on Liability and Penalty Hearing to Be Timetabled
Outcome
Application allowed on liability; declarations of contravention made; respondent ordered to pay compensation plus interest; penalty hearing to be timetabled.
Legal Topics
['fair Work Act Contraventions' 'miscellaneous Award 2010' 'underpayment of Wages' 'annual Leave and Leave Loading' 'pay Slips' 'proceeding in Absence of Respondent' 'foreign State Immunity' 'diplomatic Immunity']
['industrial Law' 'practice and Procedure' 'public International Law'] ['fair Work Act Contraventions' 'miscellaneous Award 2010' 'underpayment of Wages' 'annual Leave and Leave Loading' 'pay Slips' 'proceeding in Absence of Respondent' 'foreign State Immunity' 'diplomatic Immunity']

Case Brief

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Procedural Posture

Fair Work Act Application Alleging Contraventions of Civil Remedy Provisions and Award Obligations / Liability Hearing Proceeded in the Absence of the Respondent; Application Allowed on Liability and Penalty Hearing to Be Timetabled

Legal Issues

  1. 1 ['Whether the hearing should proceed in the absence of the respondent under r 30.21(1)(b)(i) of the Federal Court Rules 2011 (Cth).' "Whether foreign state immunity or diplomatic immunity prevented the Court from determining the applicant's claim against the former Indian High Commissioner to Australia." 'Whether the applicant was a national system employee and the respondent a national system employer under the Fair Work Act 2009 (Cth).' "Whether the Miscellaneous Award 2010 covered the applicant's employment as a domestic worker." 'Whether the respondent contravened ss 44, 45, 90(2), 323 and 536 of the Fair Work Act 2009 (Cth).' 'What compensation and interest should be ordered for the contraventions.']

Ratio Decidendi

The respondent was personally the applicant's employer and was a national system employer carrying on the activity of running a household in the Australian Capital Territory. The applicant was a national system employee covered by the Miscellaneous Award 2010. Neither foreign state immunity nor residual diplomatic immunity applied because the applicant was not employed by the High Commission of India and the engagement of a private domestic worker was not an act performed in the exercise of the respondent's diplomatic functions. On the uncontested evidence, the applicant worked excessive hours, was not paid in full or at least monthly, was not provided pay slips, did not receive annual...

Court Disposition

Application allowed on liability; declarations of contravention made; respondent ordered to pay compensation plus interest; penalty hearing to be timetabled.

Orders

  • ['Declared that the respondent contravened s 323 of the Fair Work Act 2009 (Cth) during the period between 24 September 2015 and 26 May 2016 by failing to pay the applicant amounts payable in relation to performance of work in full, at least monthly and by one of the methods specified in s 323(2).' 'Declared that...