Hitender Kumar, an Australian citizen, who worked at the Indian Consulate in Sydney as a ‘chauffeur-cum-messenger’ has lost his appeal in the Federal Circuit Court where he alleged he was underpaid by his former employer.
Kumar worked as a chauffeur-cum-messenger from February 2010 to March 2015 where his work involved both driving and administrative tasks.
He alleged he was unfairly dismissed by the then Consul General of India in Sydney over a dispute about the use of e-tag on a private car and later on raising the issue of his annual leave and non-payment of bonus with the High Commission in Canberra.
In May 2016, Fair Work Commission ordered the Consulate of India to pay Mr Kumar $10,620 in compensation for his unfair dismissal.
Mr Kumar argued he had been underpaid according to the Clerks Private Sector Award 2010, and the national minimum wage standards.
However, the Federal Circuit Court on February 13th dismissed this application against the Consulate General of India, Sydney.
In what is being called a ‘significant crack in the system’ by Kumar’s barrister, Federal Circuit Court Judge Ross Driver ruled that Kumar could not be covered by the award because working for a foreign consulate is not a private sector job nor it comes under the purview of a public sector employment.
"It follows, and I find, that Mr Kumar's employment was not covered by the Award," he said.
Kumar’s barrister, Ross Dalgleish, told BuzzFeed News the decision was significant as it meant no local clerical or administrative worker at a foreign consulate could be covered by the award.
“This is a fairly significant crack in the system that Mr Kumar’s fallen down,” he said.
The Indian consulate during the trial conceded that Kumar was owed a total of $12,177.17 for underpayments, based on the minimum wage standards and his contract. However he is yet to be paid this amount, according to his barrister.
Mr Kumar who was disappointed with the decision told Fairfax, "This judgment exposes Australian citizens and permanent citizens for exploitation by foreign consulates and embassies as they do not get the benefit of the Award."
"The Australian government is a mute witness to such exploitation."
To know if you are being exploited at work or if you are an employer or an employee seeking assistance, visit the www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94. An interpreter service is available on 13 14 50.
