23 Ms Shergill submitted that the statutory maximum is justified in respect of each of the contraventions on account of the nature and seriousness of Mr Suri's conduct which was egregious and exploitative, where Ms Shergill performing work under "employment conditions [that] bore no resemblance to what one would expect under Australian law": LJ[2]
24 I accept Ms Shergill's description of each of the contraventions as being egregious and exploitative. I found in the liability judgment, 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 5:00pm. Being required to work under such conditions, each compound the effect of the others. The circumstances bring into stark relief why there is need for protections such as those under section 45 of the FW Act, being the failure to provide an arrangement for ordinary hours of work (being an average of 38 hours per week) and failure to provide unpaid breaks (of at least 30 minutes every 5 hours). Such departures from Mr Suri's obligations to Ms Shergill are not minor - they were in every sense egregious and exploitative in their effect of depriving Ms Shergill of any semblance of a work and life divide, and must be considered to fall in the high range of seriousness.
25 The situation was exacerbated by the fact that Mr Suri never permitted Ms Shergill to take a day's leave, never allowed her to leave his diplomatic residence except for brief periods when looking after the dog and deprived her of her passport at all times. This contravening deprivation (the failure to provide leave) coupled with the circumstances, deprived her of visibility and the protections which come with it: The ability to participate in Australian society and to know and avail herself of its protections.
26 The deleterious effect of these contraventions (and the powerlessness they created) were exacerbated by the failure to pay her at all what she was entitled and the manner in which she was paid. Ms Shergill was not paid at all in Australia, and the only money she received during the employment claim period was a total of around $2,496.08, paid sporadically into a bank account in India set up by Mr Suri. Critically, Ms Shregill did not have access to this account in Australia: LJ[16]. This paltry sum equated to approximately $9.00 per day during the employment claim period, being an amount that was barely half the minimum required to be paid to Ms Shergill per hour under the applicable award, without even taking into account the additional amounts she ought to have been paid on top of the minimum wage for overtime, penalty rates, accrued annual leave on termination and annual leave loading.
27 Ms Shergill was classified as a level 2 worker under the Award. I accept Ms Shergill's submission that any level of underpayment, even if minimal (which was not the case here) would have a significant effect on a low paid employee at this level.
28 The same considerations apply to render the contraventions of sections 323 and 536 of the FW Act which are similarly egregious and exploitative and in the high range of seriousness. It is obvious that vulnerable low paid workers will be disproportionately affected by comparison to higher paid workers where they are not paid in a timely way, and are not provided with transparent pay records, in the form of pay slips which, by operation of r 3.46 of the Fair Work Regulations 2009 (Cth) are required to stipulate essential information including, but not limited to, the hours worked, the pay received, leave accrued and any amount paid that is said to be a bonus, loading, allowance, penalty rate or other separately identifiable entitlement to verify that minimal entitlements are being honoured. At first blush it might appear that a payslip contravention is minor. That may be the case where it happens once. However, the requirement that an employer provide payslips is an essential part of a functioning industrial system. An employee does not have access to his or her employer's records. An employee needs to understand the basis upon which he or she is being paid in a timely way so as to be able to raise discrepancies when they arise. The need is obvious also in the case for foreign nationals, like Ms Shergill. The failure to make and maintain employee entitlement records undermines the ability of employees and also workplace inspectors to ensure compliance: Fair Work Ombudsman v Orwill Pty Ltd & Ors [2011] FMCA 730 at [21]: Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258 at [67]; Fair Work Building Inspectorate v Foxville Projects Group Pty Ltd [2015] FCA 492 at [35].
29 In the context of considering the need for specific deterrence it is worthwhile considering Mr Suri. Mr Suri was the Indian High Commissioner to Australia. It may be inferred that he is well educated and has multiple advisors and supports when navigating the intersection between any rights and obligations he has under Australian and Indian law.
30 Indeed, it is apparent from the following, that he initiated and was involved in all the processes that facilitated Ms Shergill's passage to Australia and the terms of conditions of her employment. It is noteworthy that prior to Ms Shergill coming to Australia, she worked as a domestic worker for Mr Suri, whilst he was the Indian Ambassador to Egypt. Mr Suri asked Ms Shergill to come to Australia with him. When he asked her to come, he disclosed his intention, that she work as his domestic worker in his residence in Australia: LJ[7]. It can therefore be inferred that Mr Suri was under no illusion as to the circumstances of Ms Shergill's employment and from which it was apparent that she was being employed by him and not by the Indian High Commission.
31 Despite this knowledge, Mr Suri required that she sign Department of Foreign Affairs documentation, including a Notification of Arrival of Staff Member of Diplomatic Mission, Consular Post, International Organisation or Overseas Mission: LJ[10]. The liability judgment describes the information was contained in the Notification in this way:
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.
32 Notably, Mr Suri created a documentary artifice giving the erroneous impression that the Ms Shergill was engaged by the High Commission in an attempt to avoid his obligations as her employer under Australian law. This is apparent from the fact that he knew before she come to Australia that she would not be "Service Staff" with the primary functions of "Reception and Entertainment of Guests" at the High Commission. The form described her residence as being 3 Moonah Place, Yarralumla when Mr Suri had employed her on the basis that she would live and perform her work at his residence. Ms Shergill never lived at the Yarralumla address nor performed any work there. It was Mr Suri arranged Ms Shergill's flight to Australia. It can be inferred that he booked and paid for the flight. In addition, Mr Suri took possession of her passport at the airport and never returned it to her. When Ms Shergill arrived in Australia, she was taken to Mr Suri's residential address and never left there. She acted solely under his direction and that of his wife.
33 The deliberateness of the unlawful scheme is evident from the circumstances which led to Ms Shergill fleeing the house. Ms Shergill described someone from the Indian High Commission coming to the house in May 2016 to require her to sign documents that said she was being paid a salary (which she was not). Ms Shergill refused to sign the documents because they did not record what she had actually been paid. Ms Shergill was pressured not only by staff of the Indian High Commission but also Mr Suri's wife. Mr Suri's wife told her that if she refused to sign it, she would be sent back to India: LJ[21]. Such was Ms Shergill's fear of repercussions that she fled without any of her possessions and slept on the streets.
34 The existence of deliberateness is a factor indicative of increased need for specific deterrence. It is my view that there is heightened need for the penalty to reflect the need for specific deterrence in the circumstances of this case, given Mr Suri's high-ranking position, the extent of the power he had over Ms Shergill and his abuse of that position, the degree of his knowledge and involvement in facilitating the exploitation, the fact that there is no evidence of any co-operation or remorse, no evidence of any steps taken by him to rectify the loss suffered and there is no evidence of steps taken by him to ensure that this conduct will not occur again.
35 It is my view that these factors weigh heavily in favour of awarding the maximum penalty particularly given the nature of Ms Shergill's role as a low paid worker, the extent of the financial loss Ms Shergill sustained being $136,276.62 by reason of her entrapment in powerless domestic servitude without any means to leave the house (because of her not having access to even the limited funds she earned in Australia and not having her passport).
36 I also accept that there is a particular need for the penalty imposed to generally deter diplomat employers from exploiting foreign nationals who may enter Australia on, among other visas, a subclass 403 "Domestic Worker (Diplomatic or Consular)" visa. Mr Hillard's evidence established that there are 110 diplomatic missions in Australia. There have been other cases before this Court, where applicants have complained of like conduct arising in the Domestic Worker (Diplomatic or Consular) context. See for example, Mahmood v Chohan [2021] FCA 973, where the applicant established a prima facie case of breaches of conditions of employment while working as a private domestic worker for 18 months in the employment of the High Commissioner of Pakistan at her diplomatic residence in Canberra, including working excessive hours with minimal breaks, not being given annual leave and being paid less than Award minimum wages.
37 Unfortunately, Ms Shergill's case has the hallmarks of other like incidents globally. There are reported decisions of the Supreme Court of the United Kingdom. The case of Basfar v Wong [2022] UKSC 20; [2023] AC 33 concerned a Filipino woman who was employed as a domestic worker in the household of a Saudi diplomatic staff member in Britain. In Reyes v Al-Malki [2017] UKSC 61; [2018] 1 All ER 629 a Filipino woman 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. The Victorian Supreme Court in Doe v Howard [2015] VSC 75 enforced a judgment of the United States District Court, concerning a claim brought by an Ethiopian woman who had worked as a housekeeper at the US diplomatic compound in Tokyo. These cases are relevant to Australia given that those in senior positions in the diplomatic service move from post to post, as was evident here with Mr Suri having just completed his ambassadorship in Egypt before coming to Australia.
38 The Organisation for Security and Co-operation in Europe has published an extensive handbook, entitled "How to Prevent Human Trafficking for Domestic Servitude in Diplomatic Households and Protect Private Domestic Workers" (3 November 2014), in order to raise awareness with the relevant authorities in its 57 member States "about how to prevent trafficking in human beings for domestic servitude in diplomatic households, how to detect abuses and how to react to exploitative situations while protecting the rights of the domestic worker". The handbook identifies the "indicators of exploitation in slavery-like conditions [to] include:
• Confiscation of identity documents;
• Physical violence;
• Threats to the victim or his/her family;
• Psychological, emotional and verbal violence (insults, humiliation,
• degrading treatment, instigating guilt feelings and manipulation);
• Non-payment of wages or grossly inadequate wages;
• Isolation (contact not allowed with the outside world or the family);
• Denial of private life and intimacy. The workers often sleep on a mattress on the floor in the children's room, but also in the bathroom, in the kitchen or even in the shed;
• No access to health care and medical treatment;
• Food deprivation even up to starvation;
• Sleep deprivation due to long working hours, including during the night;
• Freedom of movement limited to meeting the needs of the employer;
• Threat of deportation."
39 Unfortunately, as is apparent from the above, the circumstances of this case fall within this definition of slave-like conditions.
40 It is not known whether this was the first time Mr Suri has contravened the Act. In any event, as observed in NSH North, as a matter of principle, even if there were evidence of the same, a first-time contravention does not always require a substantial discount, particularly where the contravention is serious and engaged in over a long period of time: at [177]. This holding was endorsed by the Full Court in Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49 (at [144]) where the mere fact that Volkswagen had not been found to have engaged in similar conduct previously "was deserving of minimal, if any, weight as a mitigating circumstance".
41 Lastly, relevant both to general and specific deterrence considerations is the invisibility of these kinds of workers and the circumstances in which these contraventions occur. As the Full Court in Volkswagen observed at [152], contravening conduct which is concealed and not easily detected may warrant penalty that is many multiples of the profits earned. This is most certainly the case here.
42 Weighing up all of the considerations, I note that none of the factors ordinarily taken into account which might give rise to mitigation, such as cooperation, remorse and rectification, have application here. The absence of any evidence as to Mr Suri's past contravention history means that it is neither a mitigatory nor an aggravating factor. There are particularly aggravating features present in this case: The deliberate, egregious nature of the conduct, as found above. The proven contraventions are very serious. Further, Mr Suri benefits from the inherent leniency that is afforded to him by the grouping exercise under s 557(1) of the Act. In the circumstances it is my view that it is appropriate to award the statutory maximum for each of the nine contraventions.
43 The application of the totality principle does not call for any reduction of the penalties to be imposed.