Shergill v Singh [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)