FEDERAL COURT OF AUSTRALIA

Shergill v Singh [2023] FCA 1346

ORDERS

THE COURT DECLARES THAT:

1.    The respondent contravened the following civil remedy provisions in the period between 24 September 2015 and 26 May 2016 (the employment claim period):

(a)    section 323 of the Fair Work Act 2009 (Cth) by failing to pay the applicant amounts payable to her in relation to the performance of work in full, at least monthly and by one of the methods specified in s 323(2) of the FW Act;

(b)    section 536 of the FW Act by failing to provide the applicant with a pay slip within one working day of paying her an amount in relation to her performance of work;

(c)    section 44(1) of the FW Act by contravening a provision of the National Employment Standards, being s 90(2) of the FW Act, by failing to pay the applicant when employment ended the amount that would have been payable to her had she taken that period of annual leave;

(d)    section 45 of the FW Act by:

(i)    failing to pay the applicant minimum wages under cl 14.1 and Sch B of the Miscellaneous Award 2010 during the employment claim period;

(ii)    failing to provide an arrangement for ordinary hours of work under cll 10.2 and 20 of the Award;

(iii)    failing to provide an unpaid break of at least 30 minutes where the applicant was required under cl 21 of the Award;

(iv)    failing to pay overtime rates prescribed under cl 22.1 of the Award;

(v)    failing to pay penalty rates for work performed on public holidays as prescribed under cl 22.2 of the Award; and

(vi)    failing to pay an annual leave loading of 17.5% on top of the paid annual leave required under the National Employment Standards, as prescribed under cl 23.3 of the Award.

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

RAPER J:

1    By way of amended originating application dated 22 September 2023, the applicant (Ms Shergill) seeks declarations pursuant to s 545 of the Fair Work Act 2009 (Cth) that the respondent (Mr Suri) contravened several provisions of the FW Act, including breaching clauses contained within the Miscellaneous Award 2010, failing to pay Ms Shergill for her work, failing to pay accrued annual leave on termination, and failing to provide Ms Shergill with payslips. Ms Shergill seeks an order that Mr Suri pay her the amounts purportedly owed for her work, interest on the amount owed (pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth)) and pecuniary penalties pursuant to s 546 of the FW Act. By operation of the six-year limitation in s 545(5) of the FW Act, Ms Shergill’s claim is not with respect to the entire period of her employment but rather from 24 September 2015 to 26 May 2016 (the employment claim period).

2    Ms Shergill came to Australia to work for Mr Suri as a domestic worker in his house in Canberra. She was an Indian national at the time. Mr Suri was the Indian High Commissioner to Australia. Her employment conditions bore no resemblance to what one would expect under Australian law – her passport was taken from her, she worked seven days a week, was never permitted to take leave and was only allowed outside the house for brief periods a day when looking after Mr Suri’s dog. For the following reasons, the employment conditions Ms Shergill was subjected to involved significant breaches of Australian law.

3    At no stage has Mr Suri engaged with this proceeding: he has not filed a notice of address for service, a defence or any evidence in defence of Ms Shergill’s claim. Ms Shergill has served on Mr Suri all the material relied upon in support of her claim, as well as the originating application, statement of claim and submissions. Ms Shergill applied for an order that the hearing proceed in the absence of Mr Suri pursuant to r 30.21(1)(b)(i) of the Federal Court Rules 2011 (Cth) but sought to file further evidence in this regard after the hearing. For reasons which follow, I make such an order.

4    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

5    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

6    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.

7    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.

8    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.)

9    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”.

10    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.

11    On or around 17 April 2015, Ms Shergill accompanied Mr Suri on a flight from India to Australia. Ms Shergill did not book or pay for her flight. It can be inferred that Mr Suri booked and paid for her flight. Mr Suri had possession of her passport at the airport, during the flight and after arrival in Australia. Mr Suri never gave Ms Shergill her passport back.

12    When Ms Shergill arrived in Australia, she was taken to Mr Suri’s official residence in Canberra at 34 Mugga Way, Red Hill. From the time of Ms Shergill’s arrival on 17 April 2015 until 26 May 2016, Ms Shergill worked and lived exclusively at Mr Suri’s residence under the direction of Mr Suri and his wife. Ms Shergill performed duties as a domestic worker, which included cooking, cleaning, gardening and doing the laundry.

13    During the employment claim period, Ms Shergill worked seven days per week for around 17.5 hours per day, and never took a day off. Ms Shergill was paid every three to four months directly into a bank account in India, which had been set up for her by Mr Suri. Ms Shergill received only the equivalent of $2,496.08 during the entirety of the employment claim period.

14    Whilst in Canberra, Ms Shergill did not perform any work as a staff member of the Indian High Commission, nor did she have any contact with the Indian High Commission.

15    Ms Shergill gave evidence of her conditions of work:

15.    It was very different working for Mr Suri in Australia, compared with my time working for him in Cairo. I was the only domestic worker at his home in Canberra, and I was responsible for doing everything. The residence was a two-storey house, which I recall had around eight bedrooms, five bathrooms and an enormous sitting room. There was so much to do.

16.    I recall that a typical day’s work for me involved:

(a)    making tea for Mr Suri when he woke, and later for his wife

(b)    taking the dog out in the morning

(c)    cooking breakfast, lunch and dinner and cleaning up afterwards

(d)    cleaning the house

(e)    doing the laundry

(f)    tidying the garden

17.    I worked 7 days per week, from around 5am until 11:30pm each day. I had one hour off each day from around 4pm until 5pm. I never had a day off in the time I worked in Australia, either as a holiday or a sick day.

18.    Mr Suri did not allow me to leave his house, except to let the dog out onto an open grassy area behind the house. Otherwise, I spent my entire time inside the house.

19.    I had to work even when Mr Suri was on holidays or interstate. When he and his wife were away, instead of my usual chores, Mr Suri or his wife usually would ask me to make large batches of samosas and freeze them, or to clean the silverware. They would call and check up on me, to ensure that I was working.

20.    I slept in a room near the garage, which had its own bathroom and a door with a lock. I set up a little shrine in my room. I had a phone which I had brought from India and could access the house wifi with it. I did not have a computer.

21.    I did not enjoy working for Mr Suri in Australia. He did not pay me much for my long hours of work. His wife was very demanding. Whenever I asked for a break, she would say things to me to the effect that I was a “young girl” and that I should “stop complaining and continue your work”. She often nagged me to work harder, and said to me things such as I was earning too much money, and that I was earning more than if I was in India. Sometimes she would get angry with me and say things such as “I will send you back, where you won’t earn much money”.

16    Ms Shergill’s evidence as to the circumstances of and manner in which she was paid by Mr Suri for the domestic labour she performed in Australia was as follows:

23.    Mr Suri paid me for my work, directly into my bank account in India, every three or four months. Mr Suri had set up that account for me when I worked for him in Cairo. I think that the account was with HDFC Bank, and that the account was in my name.

24.    I could not access this account from Australia. I had arranged before I travelled to Australia to sign some blank cheques in a cheque book, which I gave to my family to be able to withdraw money from the account.

25.    I was originally paid 13,000 Indian Rupees per month by Mr Suri. This is the equivalent of around AU$234, or $7.80 per day.

26.    I complained to Mr Suri many times that I was not being paid enough money for all of the long hours of work. Eventually in around June 2015, he told me that he would increase my pay.

27.    From July 2015 I was paid 15,000 Indian Rupees per month by Mr Suri. This is the equivalent of around AU$270, or $9 per day.

28.    In total, for working every day for Mr Suri from April 2015 for around a year, Mr Suri paid me 189,000 Indian Rupees. This is the equivalent of around AU$3,400.

17    It was Ms Shergill’s evidence that the only remuneration she ever received in Australia was that deposited into her Indian bank account by Mr Suri. Ms Shergill annexed a copy of an extract from her bank account for the period 29 June 2015 until 1 October 2016 which stated that there were received from “Navdeep Singh Suri” and which showed that:

(a)    39,000 Indian rupees deposited on 29 June 2015, being payments of 13,000 Indian Rupees for each of April, May and June 2015;

(b)    45,000 Indian rupees deposited on 6 October 2015, being payments of 15,000 Indian Rupees for each of July, August and September 2015;

(c)    45,000 Indian rupees deposited on 7 January 2016, being payments of 15,000 Indian Rupees for each of October, November and December 2015; and

(d)    60,000 Indian rupees deposited on 6 May 2016, being payments of 15,000 Indian Rupees for each of January, February, March and April 2016.

18    Ms Shergill never received a pay slip from Mr Suri. Ms Shergill was never given any leave from her employment.

19    Ms Shergill gave evidence that she felt as though she could not escape her situation working for Mr Suri in Canberra. Ms Shergill was frightened of the consequences that she and her family in India would face if Ms Shergill left Mr Suri’s employment, and Ms Shergill did not have access to her passport.

20    On 26 May 2016, Ms Shergill fled Mr Suri’s residence.

21    Ms Shergill described the events leading to her leaving in the following way:

32.    In May 2016, someone from the Indian High Commission came to the High Commissioner’s home and gave me some documents to sign. He told me words to the effect that I had to sign one of the documents which said that I was being paid a salary. I wanted to ensure that the document recorded what I was actually being paid, but the person from the High Commission said that this was a government form and could not be changed. I refused to sign the document.

33.    I think that someone came round for 4 days in a row, to get me to sign the form. I refused each time because it did not record how much I was being paid. Mr Suri’s wife kept pushing me to sign the form, and got angrier with me. She told me that I would be sent back to India if I did not sign the document. I continued to refuse to sign.

34.    After the fourth time that I refused, I was really scared that if I got sent back to India, I would be punished for having made the [sic] Mr and Mrs Suri upset with me. I was worried that I had angered them, and embarrassed them by standing up to them in front of High Commission staff. I was scared that they would retaliate against me or my family.

35.    On 26 May 2016, after the fourth time they tried to make me sign the document which did not record my salary, I ran away from the residence. I did not take any belongings with me, and I left behind all of my clothes.

36.    I slept on the streets. I was too scared to go back to the residence. I was sure that Mr Suri would punish me for leaving.

37.    Eventually I found my way to the Fair Work Ombudsman office. A man there helped me, and put me in contact with the Salvation Army. The Salvation Army arranged for me to travel to Sydney that afternoon by bus.

22    On 14 November 2016, the Department of Immigration and Border Protection made Ms Shergill an offer of a permanent stay in Australia on a Class DH, Subclass 852 Referred Stay Permanent visa. This visa was granted to Ms Shergill on 11 July 2017. Ms Shergill then acquired Australian citizenship on 23 June 2021.

Proceeding in the absence of a respondent

23    Mr Suri did not appear at the hearing. As a consequence, Ms Shergill has applied pursuant to r 30.21(1)(b)(i) of the Rules that the hearing proceed in the absence of Mr Suri. Rule 30.21 is extracted as follows:

30.21 Absence of party at trial

(1)     If a party is absent when a proceeding is called on for trial, another party may apply to the Court for an order that:

(a)     if the absent party is the applicant:

(i)     the application be dismissed; or

(ii)     the application be adjourned; or

(iii)     the trial proceed only if specified steps are taken; or

(b)     if the absent party is the respondent:

(i)     the hearing proceed generally or in relation to a particular aspect of the application; or

(ii)     the hearing be adjourned; or

(iii)     the trial proceed only if specified steps are taken.

(2)     If a trial proceeds in a party’s absence and during or at the conclusion of the trial an order is made, the party who was absent may apply to the Court for an order:

(a)     setting aside or varying the order; and

(b)     for the further conduct of the proceeding.

(Emphasis added.)

24    In Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission [2022] FCAFC 170; 295 FCR 106 at [12], the Full Court considered the equivalent provision to r 30.21(1)(b)(i) in the Uniform Civil Procedure Rules 2005 (NSW) (that is, r 29.7) as follows:

The equivalent provision to r 30.21(1)(b)(i) in the Uniform Civil Procedure Rules 2005 (NSW) (r 29.7) has been explained in these terms in Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd (2011) 248 FLR 384 (Anton Fabrications) at [11]:

Turning then to the issue as to whether the application should be heard in the absence of Anton Fabrications, Rule 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) applies when a trial is called on and any party is absent. In those circumstances the Court may proceed with the trial generally, so far as concerns any claim for relief in the proceedings, or may adjourn the trial. If it is the defendant who fails to appear, then the plaintiff may prove its claim so far as the burden of proof lies upon it and if it proves its claim is entitled to the relief claimed and such other relief as is consistent therewith (see discussion in Ritchie’s Uniform Civil Procedure (NSW), referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141).

25    Ms Shergill submitted that the Court should proceed to hear the matter in the absence of Mr Suri pursuant to r 30.21(1)(b)(i) of the Rules, and grant the relief sought. Ms Shergill contended that her evidence demonstrated, on the balance of probabilities, that Mr Suri has contravened provisions of the FW Act as alleged. Ms Shergill further submitted that there was no apparent purpose to be served by a further delay in hearing the matter: see, eg, Zomba Production Music (Australia) Pty Ltd v Roadhouse Productions Pty Ltd (in liq) [2001] FCA 1526; 190 ALR 288 at [6].

26    I accepted and provisionally granted leave for the hearing to be heard in the absence of Mr Suri subject to Ms Shergill filing further evidence regarding the service of certain documentation on Mr Suri before the hearing. I have reviewed that evidence and confirm that I am satisfied that it is appropriate that leave be granted for the following reasons.

27    On 21 December 2021, Jagot J granted leave pursuant to r 10.43(1)(a) (Application for leave to serve originating application outside Australia) of the version of the Rules applicable at the time for Ms Shergill to serve the originating application and statement of claim in India.

28    On 5 September 2022, Ms Shergill filed an interlocutory application seeking an order for substituted service pursuant to r 10.49(c)(i) of the Rules such that the originating application and statement of claim are taken to have been served on Mr Suri via email. Justice Jagot granted the application and made the orders sought by Ms Shergill on 27 September 2022.

29    This matter was then re-allocated to my docket on or around 27 October 2022, at which point my Chambers wrote to Ms Shergill’s solicitor listing the matter for case management on 4 November 2022. Ms Shergill’s solicitor responded, copying Mr Suri by email, requesting that the case management hearing before me be adjourned given Mr Suri had been served and had not yet filed a notice of appearance. The case management hearing proceeded via Microsoft Teams, and Mr Suri did not appear. I made orders requiring Ms Shergill to file any evidence and documents that she intended to rely upon at hearing, and listed the matter for further case management. I also ordered that my orders be served on Mr Suri in the manner ordered by Jagot J on 27 September 2022.

30    On 15 May 2023, my Chambers then re-listed the matter for case management on 15 June 2023, and copied Mr Suri’s email into this correspondence. Ms Shergill’s solicitor wrote to my Chambers on 5 June 2023 with proposed short minutes of order and sought that they be made in Chambers. I did not make the proposed orders in Chambers in order to give Mr Suri an opportunity to appear at the case management hearing on 15 June 2023, but noted that if either party did not attend the case management hearing, “orders may be made for the timetabling of the matter in their absence”.

31    Mr Suri did not appear at the case management hearing on 15 June 2023. I then made orders timetabling the matter for final hearing on 18 October 2023, again ordering that Mr Suri be served a copy of those orders. It is also clear from the Court file that these orders were sent by my Chambers to Ms Shergill’s representatives and Mr Suri’s email address.

32    Ms Rachael Grivas (one of Ms Shergill’s solicitors) affirmed an affidavit on 15 August 2023, which, inter alia, annexed copies of emails from Ms Shergill’s solicitors to Mr Suri which provided Mr Suri with the following documents:

(a)    a copy of the Court’s orders on 4 November 2022;

(b)    Ms Shergill’s affidavit affirmed on 23 January 2023; and

(c)    a copy of the Court’s orders on 15 June 2023.

33    In addition, on 17 August 2023, Ms Grivas sent Mr Suri an email which attached:

(a)    Ms Shergill’s submissions and list of authorities to be relied on at hearing;

(b)    the affidavit of Ms Grivas affirmed on 15 August 2023; and

(c)    the affidavit of Ms Shergill affirmed on 16 August 2023.

34    On 24 August 2023, I re-listed the matter for hearing on 20 September 2023 and made orders to that effect. It is apparent from the Court file that Mr Suri was notified by email of this amended listing date.

35    Finally, due to the unexpected closure of the Law Courts Building on 17 September 2023, my Chambers advised the parties (on 18 September 2023) that the hearing on 20 September 2023 would proceed entirely via Microsoft Teams. It is also clear that Mr Suri’s email address was included in this correspondence.

36    Given the above, I am of the view that the respondent has been notified on multiple occasions of the claim made against him. The respondent has not made any contact with the Court or the applicant’s legal representatives. The respondent was notified of the hearing and did not attend. In the circumstances, it is my view that it was appropriate that the proceeding proceed without delay in the absence of the respondent, given it did not appear that the respondent intended to take any part in the proceedings.

Jurisdiction to hear Ms Shergill’s claim

37    This Court has jurisdiction to determine Ms Shergill’s claim pursuant to s 562 of the FW Act. Mr Suri was a person carrying on the activity of running a household in Canberra and employed Ms Shergill to cook, clean and perform other domestic tasks in connection with that activity. As such, Mr Suri was a “national system employer” (within the meaning of s 14(1)(f)), and Ms Shergill a “national system employee”, within the meaning of the FW Act, for the reasons set out below.

38    Given Mr Suri’s status as the former Indian High Commissioner to Australia, Ms Shergill addressed two potential bars to this Court having jurisdiction to hear and determine her claim, namely foreign state and diplomatic immunity.

39    I will deal with each of these potential impediments in turn. For the following reasons, it is my view that neither of these potential bars apply here.

Foreign state immunity

40    Where a person is directly engaged by a foreign state to work at its embassy or high commission in Australia and brings an action in an Australian court, the foreign state may plead immunity pursuant to s 9 of the Foreign States Immunities Act 1985 (Cth):

9 General immunity from jurisdiction

Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.

41    There are various exemptions to the general presumption of immunity in s 9. Relevantly, s 12(1) of the FSI Act provides that immunity does not apply in the case of a proceeding which concerns an employment contract that is made in Australia and is to be performed, wholly or partly, in Australia. However, s 12(3) restores immunity where the employee is a national of the foreign state, but not a permanent resident of Australia at the time the contract is made. Section 12 is extracted in full as follows:

12 Contracts of employment

(1)     A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia.

(2)     A reference in subsection (1) to a proceeding includes a reference to a proceeding concerning:

(a)     a right or obligation conferred or imposed by a law of Australia on a person as employer or employee; or

(b)     a payment the entitlement to which arises under a contract of employment.

(3)     Where, at the time when the contract of employment was made, the person employed was:

(a)     a national of the foreign State but not a permanent resident of Australia; or

(b)     an habitual resident of the foreign State;

subsection (1) does not apply.

(4)     Subsection (1) does not apply where:

(a)     an inconsistent provision is included in the contract of employment; and

(b)     a law of Australia does not avoid the operation of, or prohibit or render unlawful the inclusion of, the provision.

(5)     Subsection (1) does not apply in relation to the employment of:

(a)     a member of the diplomatic staff of a mission as defined by the Vienna Convention on Diplomatic Relations, being the Convention the English text of which is set out in the Schedule to the Diplomatic Privileges and Immunities Act 1967; or

(b)     a consular officer as defined by the Vienna Convention on Consular Relations, being the Convention the English text of which is set out in the Schedule to the Consular Privileges and Immunities Act 1972.

(6)     Subsection (1) does not apply in relation to the employment of:

(a)     a member of the administrative and technical staff of a mission as defined by the Convention referred to in paragraph (5)(a); or

(b)     a consular employee as defined by the Convention referred to in paragraph (5)(b);

unless the member or employee was, at the time when the contract of employment was made, a permanent resident of Australia.

(7)     In this section, permanent resident of Australia means:

(a)     an Australian citizen; or

(b)     a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of Australia.

42    I accept Ms Shergill’s submissions that Mr Suri is not immune from proceedings against him by reason of foreign state immunity for the following reasons.

43    I accept that the evidence establishes that Ms Shergill was never employed by nor performed work for the High Commission of India, and therefore Ms Shergill’s employer was not a foreign state for the purposes of s 12(1) (as defined in s 3 of the FSI Act). As a consequence, there is no basis upon which it could be argued that foreign state immunity applied.

44    Ms Shergill’s uncontested evidence was to the effect that Ms Shergill was employed between January 2014 and March 2015 by Mr Suri, when he was the Indian Ambassador to Egypt, performing general housekeeping duties. She was thereafter asked if she would “come to Australia with [Mr Suri] and his wife, to work for them for three years as their domestic worker at their home”, to which she agreed.

45    It was Ms Shergill’s evidence, as referred to above, that she was required by Mr Suri to sign some English language documents but at the time she could not read English. As part of a Freedom of Information request, Ms Shergill’s legal representatives obtained two documents from the Department of Foreign Affairs and Trade: “SS3”, which reveals that Ms Shergill was granted a Diplomatic Visa Subclass 995P; and “SS4”, which notified the Department of Foreign Affairs and Trade that Ms Shergill had arrived in Australia.

46    I note in “SS3”, the “Protocol Branch” recommended the grant of visa for Ms Shergill to join the High Commission of India as a Staff Member “accredited” as Service Staff. This is consistent with the “Notification of Arrival” form which described Ms Shergill as being “Service Staff of High Commission of India” where her primary functions are “Reception and Entertainment of Guests”.

47    However, no contract of employment was ever entered into with the High Commission of India. This is unsurprising given it was Ms Shergill’s evidence that: (a) she lived and worked for a year exclusively at Mr Suri’s residence; (b) she did not perform any work as a service staff member of the High Commission; (c) she did not have any contact with the High Commission while she worked in Canberra; (d) Mr Suri paid her salary into a bank account he had arranged for her in India; and (e) her work comprised domestic duties, which were as follows:

I recall that a typical day’s work for me involved:

(a)     making tea for Mr Suri when he woke, and later for his wife

(b)     taking the dog out in the morning

(c)     cooking breakfast, lunch and dinner and cleaning up afterwards

(d)     cleaning the house     

(e)     doing the laundry

(f)     tidying the garden

48    It was Ms Shergill’s evidence that Mr Suri did not allow her to leave his house, except to let the dog out onto an open grassy area behind the house. Otherwise, she spent her entire time inside the house.

49    Accordingly, I accept Ms Shergill’s submission that her evidence establishes that the FSI Act does not apply in the circumstances of this case, and presents no impediment to the Court’s jurisdiction to determine the claim.

Diplomatic immunity

50    Where a person is engaged directly by a foreign diplomat to work as his or her private domestic staff and brings an action in an Australian court, it may be open for the diplomat to argue that he or she is immune from the court’s jurisdiction by virtue of the Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964) (Convention). The Convention is given force in Australia pursuant to s 7 of the Diplomatic Privileges and Immunities Act 1967 (Cth).

51    Diplomatic immunity is enshrined in art 31(1) of the Convention:

Article 31

1.     A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a)     a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b)     an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c)     an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

52    A “diplomatic agent” is defined as “the head of the mission or a member of the diplomatic staff of the mission”: art 1(e) of the Convention.

53    Ms Shergill referred me to the following parts of art 39 of the Convention, which addresses the extent of the application of diplomatic immunity:

Article 39

1.     Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

2.     When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

…

(Emphasis added.)

54    I accept that the effect of art 39(2) is such that, when Mr Suri ended his appointment as High Commissioner of India to Australia and departed Australia in November 2016, his diplomatic immunity ceased, save for any acts which had been performed by him “in the exercise of his functions” as High Commissioner.

55    For the following reasons, I accept the submissions of Ms Shergill that there is no basis upon which it would be open for Mr Suri to argue that his diplomatic immunity continues to apply, despite him leaving the country, by virtue of his engagement of Ms Shergill being an act performed by him “in the exercise of his functions” as High Commissioner.

56    Whilst there is no binding Australian authority which concerns the applicability of diplomatic immunity in a case such as this, I accept that the reasoning of the United Kingdom Supreme Court in Reyes v Al-Malki [2017] UKSC 61; 3 WLR 923 may be adopted in the circumstances.

57    Reyes concerned a Filipino woman who was employed as a domestic worker for a Saudi diplomat in London. Ms Reyes’ passport was confiscated, she was prevented from leaving the house or communicating with others, and was not paid wages. She brought an action against the diplomat, and alleged that he had failed to pay her the national minimum wage in the United Kingdom. By the time the matter was heard by the UKSC, the diplomat was no longer “in post” and no longer resided in the United Kingdom.

58    It was the holding in Reyes that, due to the diplomat’s departure from his post, he was not entitled to any ongoing general immunity under art 31(1) of the Convention, and only had residual immunity under art 39(2) in respect of “acts performed…in the exercise of his functions as a member of the mission”: Reyes at [48] (per Lord Sumption, with whom Lord Neuberger agrees). Lord Sumption held that the former diplomat’s employment of a domestic worker did not qualify as an act performed in the exercise of his functions as a member of the mission pursuant to art 39(2) of the Convention. As such, the former diplomat was not entitled to residual immunity under art 39(2). The fact that the employment occurred during the time the former diplomat was serving in his diplomatic posting in the United Kingdom did not alter this conclusion. Lord Sumption held as follows (at [4]):

…On 29 August 2014, Mr Al-Malki’s posting in London came to an end and he left the United Kingdom. Article 31 confers immunity only while he is in post. A diplomatic agent who is no longer in post and who has left the country is entitled to immunity only on the narrower basis authorised by article 39(2). That immunity applies only so far as the relevant acts were performed while he was in post in the exercise of his diplomatic functions. The employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki in the exercise of his diplomatic functions.

(Emphasis added.)

59    Ultimately, each member of the Court agreed with Lord Sumption’s analysis on this issue: Reyes at [55] (Lord Wilson, with whom Lady Hale and Lord Clarke agreed at [69]).

60    I note also this Court’s decision in Mahmood v Chohan [2021] FCA 973, which concerned an application for overseas service of an originating application and statement of claim. In Chohan, the substantive claim concerned a claim for contraventions of the FW Act by a former High Commissioner of a private domestic worker in Australia. Justice Jagot (when her Honour was formerly on the Federal Court) accepted, at [17], that the unanimous position of the UKSC in Reyes was sufficient to provide a prima facie case for the relief sought.

61    Applying the reasoning in Reyes to this case, it is my view that Mr Suri is not able to claim diplomatic immunity. This was so for the following reasons. First, Mr Suri is no longer in the post of Indian High Commissioner to Australia. Secondly, and as a result of Mr Suri not being in post, the only diplomatic immunity available to him is residual immunity under art 39(2) of the Convention. Thirdly, residual immunity only applies with respect to acts performed by Mr Suri in the exercise of his functions as head of mission. Fourthly, the engagement of Ms Shergill as a domestic worker does not fall within the exercise of Mr Suri’s official functions as a member of the mission and does not attract residual immunity in art 39(2).

62    By reason of my findings outlined above, I am satisfied that this Court has jurisdiction to hear Ms Shergill’s claim.

Contraventions of the FW Act

Contraventions of the Award

63    Ms Shergill claims that Mr Suri breached s 45 of the FW Act by contravening the following clauses of the Award during the employment claim period:

(a)    cll 10.1 and 20: ordinary hours of work;

(b)    cl 14 and Sch B: minimum wages;

(c)    cl 18: payment of wages;

(d)    cl 21: breaks;

(e)    cl 22.1: overtime pay;

(f)    cl 22.2: penalty rates for public holidays;

(g)    cl 23.1: annual leave; and

(h)    cl 23.3: annual leave loading.

64    I note that Ms Shergill referred in her application to cl 10.1 but I have assumed it is a typographical error and she relies on cl 10.2, given cl 10.2 prescribes a full-time employee’s ordinary hours. This is consistent with the submissions made and the nature of the declaration sought.

65    Accordingly, Ms Shergill must establish that she was an “national system employee”, Mr Suri is a “national system employer” and that the Award applied to Ms Shergill.

Employment

66    Whether a person is recognised as an “employee” under the FW Act depends on whether he or she falls within the definition under the relevant part of the Act. Here, Ms Shergill’s claim for breach arises in Ch 2 – Terms and conditions of employment. The meaning given to an “employee” and “employer” is respectively a “national system employee” and a “national system employer” defined in ss 13 and 14 of the FW Act.

67    A “national system employee” is:

13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note:     Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

68    A “national system employer” is:

14  Meaning of national system employer

(1)    A national system employer is:

(a)      a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b)      the Commonwealth, so far as it employs, or usually employs, an individual; or

(c)      a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d)      a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i)    a flight crew officer; or

(ii)    a maritime employee; or

(iii)    a waterside worker; or

(e)    a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f)    a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1:    In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).

Note 2:    Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

…

69    There are five essential features of a contract of employment: There must be a contract of employment, even if unwritten. The contract must involve the performance of work by the employee for the employer. The contract is one of “personal service” by the employee. There must be a wage or other remuneration as consideration for the performance of work. The employer must be obliged to pay the employee in accordance with the terms of the contract for the personal service provided: Neil I, Chin D, Parkin C, The Modern Contract of Employment (3rd ed, Thomson Reuters, 2023) [1.001]–[1.005].

70    The evidence clearly establishes that Mr Suri was Ms Shergill’s employer by reason of the following: When Mr Suri asked if Ms Shergill would work for him and his wife in Australia, Ms Shergill was already working for Mr Suri as a private domestic worker in Cairo; Mr Suri facilitated Ms Shergill’s Australian visa and flights to Australia; When Ms Shergill arrived in Australia, she lived and worked in Mr Suri’s residence in Canberra and performed domestic duties for Mr Suri and his wife; Mr Suri exercised control as to how, where and when Ms Shergill performed her work; and to the extent that Ms Shergill was paid, Mr Suri himself paid her.

71    I accept that Mr Suri was a “national system employer” and fell within s 14(1)(f) of the FW Act. Mr Suri carried on an activity, namely the running of a household in which he employed Ms Shergill to perform domestic work in the house, which was an activity carried on in the Australian Capital Territory.

Coverage

72    Section 47 of the FW Act prescribes when a modern award “applies” to an employer, employee, organisation or outworker entity. An award “applies” if the modern award “covers” the employee, employer, organisation or outworker entity, the modern award is in operation (as specified under s 49), and no other provision of the Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity: s 47. A modern award “covers’’ an employee or employer “if the award is expressed to cover” the employee or employer, or otherwise “covers” them by virtue of additional circumstances which do not arise in this case: s 48.

73    The Award is stated to cover employers throughout Australia and their employees in the classifications listed in cl 14 who are not covered by any other modern award (cl 4.1 of the Award which is extracted as follows):

4. Coverage

4.1     Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14—Minimum wages who are not covered by any other modern award.

4.2     The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

4.3     The award does not cover employees:

(a)     in an industry covered by a modern award who are not within a classification in that modern award; or

(b)     in a class exempted by a modern award from its operation,

or employers in relation to those employees.

4.4     The award does not cover employees excluded from award coverage by the Act.

74    For the following reasons, I accept that the Award covers Mr Suri and Ms Shergill.

75    First, I am of the view that the work performed by Ms Shergill fell within the classifications of the Award given the broad generic nature of those classifications, which were as follows:

Schedule B—Classification Structure and Definitions

Level 1

An employee at this level has been employed for a period of less than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 2

An employee at this level has been employed for more than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 3

An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.

Level 4

An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.

76    Secondly, there does not appear to be any other Modern Award which covers the work Ms Shergill performed.

77    Thirdly, it is my view that the exclusionary clause, cl 4.2, does not apply in this case.

78    I note a decision of this Court in Fair Work Ombudsman v Lam [2021] FCA 205 at [15], where observations were made as to the level of satisfaction required to determine whether an employee is caught by the exclusion in cl 4.2. In that case the Court, in the context of a consent position of the parties, observed, at [16], that the reasoning of the Full Bench in the 4 yearly review of modern awards – Miscellaneous Award 2010 [2020] FWCFB 754 at [38] could not be used to “solve the evidentiary problem” – namely proof of whether the employment of domestic workers and nannies had not traditionally been covered by any award and was not a class of employment to which cl 4.2 applied. There did not appear to be, given the consent context, much assistance given or argument. The 4 yearly review decision was prompted by a request from the then President of the Fair Work Commission for consideration to be given to the coverage clause by a Full Bench to ensure “sufficient clarity” as to the scope of the exclusionary provision in cl 4.2 of the Award following the Full Bench’s decision in United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort [2018] FWCFB 128.

79    In United Voice, at [36]–[37], the Full Bench concluded that the language in cl 4.2 excludes certain employees from coverage by the Award because, inter alia, they have “not traditionally been covered by awards” because of the nature or seniority of the employee’s role. The relevant portions of the Full Bench’s reasons are extracted as follows:

Coverage of the Miscellaneous Award

[36]     We have earlier set out clause 4.2 of the Miscellaneous Award, which establishes the exception from the general coverage provision in clause 4.1 which AAA Pet Resort relies upon to avoid the proposition that the award covers the Employees. It is necessary at the outset therefore to construe clause 4.2 having regard to its context and purpose. Before we turn directly to the text of clause 4.2, two observations may be made about the apparent purpose of the Miscellaneous Award based on the context of the award’s terms as a whole. First, the title of the award, the terms of clause 4.1, and the broad and generic nature of the classifications descriptors in Schedule B suggest that the purpose of the award is to provide minimum (and minimalistic) conditions of employment for a miscellaneous range of employers and employees, not identified by reference to any industry, business function or occupation, who are not covered by any other modern award. Second, the classifications descriptors make it clear that no classification applies to persons with a professional qualification or managerial responsibilities, that Levels 3 and 4 were to apply to trade qualified employees, and that Levels 1 and 2 were to apply to low skilled employees with no particular work qualification at all. Thus it may be inferred that the award was not intended to cover professional or managerial employees, and that it was intended to cover low skilled employees as well as trade-qualified employees not covered by any other award. In respect of low-skilled employees, the low minimum rates of pay prescribed also tend to suggest that the award was intended to capture low paid workers not covered by another award.

[37]     We consider that clause 4.2 has a plain meaning based on the ordinary meaning of the words used. The exclusion in clause 4.2 has two requisite elements. Stated in reverse order, they are:

(1)     the classes of employees must not have been traditionally covered by awards; and

(2)     this must have been because of the nature or seniority of their role.

(Footnotes omitted; Emphasis in bold added.)

80    This interpretation is unsurprising because it appears that cl 4.2 did no more than attempt to repeat s 143(7)(a) of the FW Act, which provides that a modern award must not be expressed to cover classes of employees “who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States)”.

81    As a result of the Full Bench’s review, since 25 March 2020, the exclusion in cl 4.2 no longer refers to employees who have not traditionally been covered by awards. Instead, cl 4.2 in its amended form as follows (see 4 yearly review of modern awards – Miscellaneous Award 2010 [2020] FWCFB 1589):

4.2    The award does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

82    I am of the view that there is no reason to conclude that, Ms Shergill’s role (as a private domestic worker) was excluded from award coverage, because of the nature or seniority of her role, such roles have not traditionally been covered by awards, such that she was not covered by the Award. Accordingly, I accept that the Award covered the employment.

Award provisions relating to the other contraventions

83    The relevant clauses of the Award, which Ms Shergill claims have been breached, are extracted as follows:

10.     Types of employment

10.1    Employees may be engaged on a full-time, part-time or casual basis.

10.2     Full-time employment

The ordinary hours of full-time employees are an average of 38 per week.

…

14. Minimum wages

14.1     Adult minimum wages

…

Schedule B — Classification Structure and Definitions

…

Level 2

An employee at this level has been employed for more than three months and is not carrying out the duties of a level 3 or level 4 employee.

…

18. Payment of wages

Payment of wages is dealt with in s.323 of the Act.

…

20. Ordinary hours of work and rostering

20.1    The ordinary hours fixed in accordance with clause 10—Types of employment, for employees other than casuals are to be worked on a regular basis with fixed starting and finishing times over a maximum of six days per week, provided that on average an employee must not be required to work ordinary hours on more than 20 days in any 28 day period. Once fixed, the starting and finishing times can be varied by agreement at any time or by the employer on seven days’ notice.

20.2    Ordinary hours are not to exceed 10 hours on any day or shift except by agreement in which case the maximum number of ordinary hours is 12.

21. Breaks

An employee must not be required to work for more than five hours without an unpaid break of at least 30 minutes for a meal.

22. Overtime and penalty rates

22.1     Overtime

All time worked in excess of an average of 38 hours per week by a full-time employee or in excess of the agreed number of hours per week by a part-time employee is overtime and must be paid at the rate of 150% of the relevant minimum wage for the first three hours and 200% of the relevant minimum wage thereafter. In the case of part-time employees, the agreed number of hours means the number of hours agreed in writing either at the commencement of employment or subsequently.

22.2 Penalty rates

(a)    All work performed by an employee, other than a casual, outside the hours of 7.00 am and 7.00 pm Monday to Friday and on Saturday which is not overtime must be paid at the rate of 120% of the relevant minimum wage.

(b)    All work performed by an employee, other than a casual, on Sunday which is not overtime must be paid at the rate of 150% of the relevant minimum wage.

(c)    All work performed by a casual employee outside the hours of 7.00 am and 7.00 pm Monday to Friday and on Saturday which is not overtime must be paid at the rate of 145% of the relevant minimum wage.

(d)    All work performed by a casual employee on Sunday which is not overtime must be paid at the rate of 175% of the relevant minimum wage.

(e)    All work performed by an employee on a public holiday is to be paid at the rate of 250% of the relevant minimum wage.

23. Annual leave

23.1     Annual leave is provided for in the NES.

….

23.3    When taking a period of paid annual leave an employee must be paid a loading of 17.5% in addition to the payment required by the NES or the ordinary pay they would have received for the period of the leave, whichever is the greater.

84    I accept, as Ms Shergill submitted, that she was entitled, in accordance with the Award, to the following:

(a)    to work ordinary hours as a full-time employee, being an average of 38 per week (pursuant to cl 10.2);

(b)    to the minimum wages applicable to Ms Shergill’s classification level as a “level 2 employee” (Sch B of the Award) during the employment claim period (being more than three months after she was employed). Ms Shergill was therefore entitled to an hourly wage of $18.47 per hour of work (pursuant to cl 14.1);

(c)    to work ordinary hours of work not exceeding 10 hours on any day or shift except by agreement, in which case the maximum number of ordinary hours is 12 (pursuant to cl 20.2);

(d)    to not be required to work for more than five hours without an unpaid break of at least 30 minutes for a meal (pursuant to cl 21);

(e)    to be paid at the rate of 150% of the relevant minimum wage for the first three hours, and 200% of the relevant minimum wage thereafter, for any time worked in excess of an average of 38 hours per week (pursuant to cl 22.1);

(f)    to be paid penalty rates for work performed on public holidays (pursuant to cl 22.2); and

(g)    an annual leave loading of 17.5% in addition to the annual leave payment for the period of the leave (pursuant to cl 23.3).

Relevant evidence relating to the Award contraventions

85    I accept that the evidence establishes that during the employment claim period Ms Shergill worked seven days per week, for around 17.5 hours per day (being from approximately 5:00 am until 11:30 pm) with one hour off between 4:00 and 5:00 pm. I accept Ms Shergill’s evidence that she was never granted a day of leave.

86    Given the same, it is open for me to make the following findings that during the employment claim period, Ms Shergill:

(a)    was required to work ordinary hours in excess of an average of 38 per week, in breach of cl 10.2;

(b)    was not paid minimum wages each week, in breach of cl 14.1;

(c)    was required to work ordinary hours in excess of 10 hours per day, in breach of cl 20.2;

(d)    was required to work for more than five hours without an unpaid break of at least 30 minutes for a meal every day, in breach of cl 21;

(e)    was required to work in excess of an average of 38 hours per week without being paid overtime, in breach of cl 22.1;

(f)    was required to perform work on public holidays without being paid penalty rates, in breach of cl 22.2; and

(g)    was not paid a 17.5% annual leave loading, in breach of cl 23.3.

87    By reason of the above, I am satisfied, based on my review and acceptance of Ms Shergill’s calculations, that Ms Shergill ought have been paid a total of $138,772.70 in accordance with her entitlements under the Award.

88    I note also, on the basis of the additional evidence filed after the hearing, that Ms Shergill was only paid the equivalent of approximately $2,496.08 in wages for work performed during the employment claim period.

89    By reason of the above, Ms Shergill has established that Mr Suri contravened s 45 of the FW Act in respect of each breach of cll 10.2, 14.1, 20.2, 21, 22.1, 22.2 and 23.3 of the Award.

90    I note that Ms Shergill also claims breaches of cll 18 and 23.1 of the Award. Each of these clauses, extracted above, refers to entitlements under the “NES” (namely, the National Employment Standards under the FW Act). It is my view that each of these clauses does no more than simply acknowledge the existence of obligations under the FW Act and does not impose any separate obligation on an employer under the Award. Accordingly, there can be no claim for breach of these clauses.

Contravention of s 323

91    Section 323 of the FW Act provides as follows:

323 Method and frequency of payment

(1)     An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)     in full (except as provided by section 324); and

(b)     in money by one, or a combination, of the methods referred to in subsection (2); and

(c)     at least monthly.

Note 1:     This subsection is a civil remedy provision (see Part 4‑1).

Note 2:    Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a)    incentive‑based payments and bonuses;

(b)    loadings;

(c)    monetary allowances;

(d)    overtime or penalty rates;

(e)    leave payments.

(2)     The methods are as follows:

(a)     cash;

(b)     cheque, money order, postal order or similar order, payable to the employee;

(c)     the use of an electronic funds transfer system to credit an account held by the employee;

(d)     a method authorised under a modern award or an enterprise agreement.

(3)     Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

Note:    This subsection is a civil remedy provision (see Part 4‑1).

92    For the reasons above, I accept that Ms Shergill has established that she was not paid the full amounts owed to her by Mr Suri. Further, Ms Shergill was only paid every three or four months rather than at least monthly, as prescribed under s 323(1)(c). As a result, I find that Mr Suri contravened s 323 of the FW Act.

Contravention of ss 44 and 90(2)

93    Section 44 of the FW Act provides that an employer must not contravene a provision of the NES, and is a civil remedy provision. The NES are set out in Pt 2-2 of the FW Act.

94    Section 90(2) provides that if, when an employee’s employment ends, he or she has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable had the employee taken that period of leave:

90 Payment for annual leave

(1)     If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

(2)     If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

95    The evidence establishes that, during the employment claim period, Ms Shergill accrued annual leave but did not take any days off. Ms Shergill was also entitled to annual leave loading of 17.5% in respect of the accrued leave under the Award. Whilst the employment claim period is for less than 12 months, Ms Shergill’s entitlement to be paid accrued but untaken annual leave accrues at the end of her employment upon termination. As observed by Buchanan J in Centennial Northern Mining Services Pty Ltd v CFMEU (No 2) [2015] FCA 136 at [34], when considering the text of the provision, as well as the Explanatory Memorandum of the Fair Work Bill 2008 (Cth), it is clear that the intent of s 90(2) is not confined to a statement of a minimum obligation, but is rather a statement to the effect that an employee should not suffer a reduction in the value of unpaid annual leave if the employment comes to an end while paid annual leave remains untaken. Whilst the observation was made in the context of considering the rate at which the amount should be paid out, it is my view that one can extrapolate also that the intent of the provision concerns accrual upon termination and there is no limit within the provision with the effect that one’s accrual would be lessened by reason of any time limitation upon commencing a cause of action. Accordingly, all accrued but untaken leave must be paid.

96    Given the same, when Ms Shergill’s employment ceased, Mr Suri should have paid Ms Shergill for four weeks’ accrued annual leave plus a 17.5% loading, totalling $3,663.25, but failed to do so. Therefore, I find that Mr Suri contravened s 90(2) of the FW Act and, in turn, s 44 of the FW Act.

Contravention of s 536

97    Section 536 of the FW Act requires an employer to give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. The pay slip must be in any form that is prescribed by the Fair Work Regulations 2009 (Cth) and must include any information prescribed in the FW Regulations. The provision is extracted as follows:

536 Employer obligations in relation to pay slips

(1)     An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.

Note 1:    This subsection is a civil remedy provision (see Part 4‑1).

Note 2:    Section 80 of the Paid Parental Leave Act 2010 requires an employer to give information to an employee to whom the employer pays an instalment under that Act.

(2)     The pay slip must:

(a)     if a form is prescribed by the regulations—be in that form; and

(b)     include any information prescribed by the regulations; and

(c)     not include any information prescribed by the regulations in relation to paid family and domestic violence leave; and

(d)     comply with any requirements prescribed by the regulations in relation to the reporting of paid family and domestic violence leave.

Note 1:    This subsection is a civil remedy provision (see Part 4‑1).

Note 2:    If an employer fails to comply with subsection (1) or (2), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.

(3)     An employer must not give a pay slip for the purposes of this section that the employer knows is false or misleading.

Note:    This subsection is a civil remedy provision (see Part 4‑1).

(3A)     A pay slip is not false or misleading merely because it complies with regulations made for the purposes of paragraph (2)(d).

(4)     Subsection (3) does not apply if the pay slip is not false or misleading in a material particular.

98    The prescribed form of payslips is contained in regs 3.45 and 3.46 of the FW Regulations:

3.45 Pay slips—form

For paragraph 536(2)(a) of the Act, a pay slip must be:

(a)     in electronic form; or

(b)     a hard copy.

Note:    Subsection 536(2) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4‑1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

3.46 Pay slips—information to be included in pay slips

(1)     For paragraph 536(2)(b) of the Act, a pay slip must specify:

(a)     the employer’s name; and

(b)     the employee’s name; and

(c)     the period to which the pay slip relates; and

(d)     the date on which the payment to which the pay slip relates was made; and

(e)     the gross amount of the payment; and

(f)     the net amount of the payment; and

(g)     any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive‑based payment or other separately identifiable entitlement; and

(h)     on and after 1 January 2010—the Australian Business Number (if any) of the employer.

…

99    It was Ms Shergill’s evidence that at no stage during or after the employment claim period did Mr Suri ever provide Ms Shergill with an electronic or hard copy document containing the requisite information to constitute a pay slip. Given the same, I accept that Mr Suri contravened s 536 and, in turn, s 44 of the FW Act.

Relief

100    Ms Shergill sought the following declarations and orders be made in her amended originating application as they flow from the question of liability:

1.     Declarations pursuant to section 545 of the Fair Work Act 2009 (Cth) (FW Act) that the Respondent contravened section 45 of the FW Act by contravening each of the following clauses of the Miscellaneous Award 2010 (the Award) during the period 17 April24 September 2015 and 26 May 2016 (the Employment Claim Period):

(a)     clauses 10.1 and clause 20 – ordinary hours of work;

(b)     clause 14 and Schedule B – minimum wages

(c)     clause 18 - payment of wages

(d)     clause 21 - breaks

(e)     clause 22.1 - overtime pay

(f)     clause 22.2 - penalty rates for public holidays

(g)     clause 23.1 – annual leave

(h)     clause 23.3 – annual leave loading.

2.     A declaration pursuant to section 545 of the FW Act that the Respondent contravened section 323 of the FW Act by failing to pay the Applicant amounts payable to her in relation to the performance of work in full, at least monthly and by one of the methods specified in section 323(2) of the FW Act during the Employment Claim Period.

3.     A declaration pursuant to section 545 of the FW Act that the Respondent contravened section 44 of the FW Act by contravening a provision of the National Employment Standards, being section 90(2) of the FW Act, by failing to pay the Applicant on termination of employment the amount that would have been payable to her had she taken her accrued period of paid annual leave.

4.     A declaration pursuant to section 545 of the FW Act that the Respondent contravened section 536 of the FW Act by failing to provide the Applicant with pay slips during the Employment Claim Period or on termination.

5.    An order pursuant to section 545 of the FW Act and in accordance with section 545(5) of the FW Act, that the Respondent pay the Applicant compensation in the amount of AUD $134,308.30 $136,276.62 (being $138,772.70 less $2,496.08 paid to the Applicant in Indian Rupees) for loss suffered because of the Respondent’s contraventions of sections 44 and 45 of the FW Act referred to in paragraph (1) and (3) above.

6.    An order pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and section 547 of the FW Act that the Respondent pay the Applicant interest on the amount referred to in item (5) above.

101    Ms Shergill accepted that the Court cannot make an order for payment in relation to underpayment that relates to a period more than six years before a proceeding commences, pursuant to s 545(5) of the FW Act. Given these proceedings commenced on 23 September 2021, Ms Shergill submitted that the Court should only order that Mr Suri pay Ms Shergill compensation for underpaid ordinary hours, overtime and work on public holidays in respect of that portion of the employment claim period commencing on and from 24 September 2015. Ms Shergill has calculated the compensation owing to her as being $136,276.62 (being $138,772.70 less $2,496.08 which was paid to Ms Shergill in Indian Rupees by Mr Suri) for loss suffered because of the contraventions of ss 44 and 45 of the FW Act. This amount also includes payments arising from the failure to allow Ms Shergill to take annual leave or receive payments in lieu of that leave upon termination.

102    It is appropriate to make this order, together with an order for interest.

103    Further, Ms Shergill submitted that Mr Suri should pay Ms Shergill interest on the amount referred to above.

104    Given cll 18 and 23.1 impose no obligation on an employer, no declaratory relief may be sought under these provisions.

Conclusion

105    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.

106    I will list the matter for timetabling of the penalty hearing on 24 November 2023.

Associate:

Dated:    3 November 2023