If the employment contract of a foreign worker is made the subject of an application for unfair dismissal, can the Fair Work Commission hear and decide the application? The case of Juliet Buenaobra v Anwar Alesi  FWC 4311 (06 August 2018) illustrates the law on the matter.
An Iraqi couple who worked for the Iraqi diplomatic mission had in their employ a Filipino woman working as nanny to their two children. She had signed an employment contract and was brought into Australia under the diplomatic visa stream of her employer.
Under her contract, she was promised monthly pay of $2975 with deductions of $800 for board and lodging, $125 for medical insurance and $50 for clothing. She should have received about $1750 a month but received only $800 monthly. She also shared a room and slept with the two children of her employers instead of her having her own room. She worked six days every week for long hours (beyond the usual 8 hours a day). Her total number of hours of work each week far exceeded the 40-hour workweek legislated as minimum work hours. She did not receive overtime pay for her work beyond the 40-hours.
She lodged a complaint for underpaid wages under her contract. She was then dismissed for having committed an unspecified misconduct against the family of the Iraqi diplomat. She lodged a complaint for harsh, unjust and unreasonable dismissal.
The Iraqi couple then pleaded diplomatic immunity and sought a dismissal of the domestic worker’s complaint for unjust dismissal. The employment contract lawyer for the Filipino worker said that she did not work for the Iraqi government but for the Iraqi couple. The diplomat and the Filipino worker signed a contract of employment.
The diplomat is subject to the Vienna Convention on Consular Relations which was incorporated in the Consular Privileges and Immunities Act 1972. Under this Australian law, diplomats have no diplomatic immunity with respect to a civil action arising out of a contract concluded by a consular officer or for damage arising from an accident caused by the vehicle, vessel or aircraft of the diplomat.
The Filipino worker lived and worked in the home of the diplomat and not at the consular office, her work was not rendered for the Republic of Iraq. Also, she had signed a contract of employment with the diplomat. Any dispute arising from the contract of employment is not covered by diplomatic immunity. Also, since the work was rendered in Australia, the laws on employment contracts in Australia applies to the Filipino domestic worker – she is a worker protected by Australian law and as such, she had a right to bring an application in the Fair Work Commission.
The FWC found her dismissal to be harsh and unreasonable as the only reason for her dismissal was the complaint she lodged for underpayment. The Filipino domestic worker had the opportunity to record her employers shouting at her for having filed the complaint. The FWC took this evidence finding the conduct of the Iraqi diplomats “morally repugnant” for being exploitative and akin to servitude and slavery.
In determining how much to be awarded to the Filipino domestic worker, the FWC considered that the Filipino worker did not mitigate her losses by seeking alternative employment. However, the FWC considered that the minimum wage in Manila was $89 per month and it made more sense for the Filipino worker to stay in Australia to claim for what she was owed.
The Iraqi diplomatic couple were ordered to pay the amount of $20,000 to the Filipino domestic worker.