University of Melbourne Law School Research Series
Last Updated: 17 September 2018
The Rights of Diplomatic and Consular Employees in
This article examines a group of employees who have been rarely considered
in Australian court and tribunal decisions and scholarly
commentary to date:
diplomatic and consular workers. While persons employed by foreign states in
their embassies and consulates generally
enjoy favourable rights of access to
justice under the Australian law of foreign state immunity, those retained
personally by individual
diplomats (commonly domestic servants) stand in a much
worse position due to the excessively wide rules of diplomatic immunity. After
discussing the current legal regimes in Australia and other jurisdictions, the
author suggests possible strategies for improving
the situation of such
An issue of increasing importance globally is the status of persons employed by foreign states in embassies or consulates or retained personally by individual diplomats or consular officials. While the topic has been the subject of court decisions in the European Union and North America and some scholarly writing in those countries, in Australia there has so far been little consideration of the area. Given, however, the likely substantial number of diplomatic and consular employees in Australia, an examination of their rights to obtain redress under Australian law is both necessary and timely. At the outset, a key distinction must be drawn in terms of categories of employee. First, there are persons employed by foreign states in diplomatic or consular missions for which the principles of foreign state immunity apply to any suits against their employer. Second, there are persons employed (normally domestic staff) by diplomats and consular officers whose claims will be subject to the principles of diplomatic and consular immunity. The distinction (occasionally mistaken) between foreign state and diplomatic immunity is of great significance because, as will be seen, the scope of foreign state immunity in employment cases is far narrower than diplomatic immunity.
The significance of either form of immunity applying to an action is that an Australian court is prevented from adjudicating the merits of the employee’s claim, whether it is for unfair dismissal, unpaid pension or leave entitlements, for example. Immunity is therefore a major hurdle for employees to overcome in these cases and is the focus of this article.
Employees of Foreign States
Where a person is directly engaged by a foreign state to work at its embassy or consulate in Australia and brings an action in an Australian court or industrial tribunal for, for example, unfair dismissal, the foreign state may plead that it is immune from the adjudicating body's jurisdiction. Foreign state immunity is a doctrine of public international law whereby a state may not be sued before the courts of another country without its consent.Until the 1970s it was assumed, at least in common law countries, that such immunity from jurisdiction was 'absolute' unless it was waived by the defendant state. Once however nation states (particularly developing countries) began to engage increasingly in commercial activities, the absolute immunity rule began to come under pressure. Specifically, the idea emerged in the jurisprudence of some European states that it was no longer appropriate for a state to enjoy all the privileges of statehood where it was acting in a manner similar to a private entity, for example, as a party to a commercial transaction. For the first time it was felt that the interests of private parties who dealt with the states also had to be considered.
Accordingly, a new rule of restrictive immunity appeared based on the distinction between acts jure imperii and acts jure gestionis. Acts jure imperii were those acts of a particularly sovereign or governmental nature that no private person would ordinarily perform whereas acts jure gestionis were those acts that, although performed by governments, could equally be done by private persons. Although this distinction had originated in European civil law countries, it came to be accepted in United States and United Kingdom courts in the 1970s.In the area of employment disputes, it was also well-recognised that foreign states enjoyed absolute immunity from suit and indeed that was the view taken in most but not all Australian decisions prior to the enactment of the Foreign States Immunities Act 1985 (Cth) (‘FSIA’).
Recent legislative and judicial practice however shows that the restrictive immunity trend has now entered the employment domain. Most significantly, there have been instruments such as the 1972 European Convention on State Immunity, the Foreign Sovereign Immunities Act of 1976 (US), the State Immunity Act 1978 (UK) c 33, the State Immunity Act 1985 (Canada) and most recently, the United Nations Convention on the Jurisdictional Immunities of States and Their Property, that all embody to varying degrees the restrictive approach to foreign state immunity. Australia, through the enactment of the FSIA, may be added to the above group. Under the leadership of James Crawford, the Australian Law Reform Commission (‘ALRC’) recommended the creation of legislation based on the restrictive model in 1984, which came into being in the FSIA.
A difference of approach to employment actions is evident in the jurisdictions that have adopted the restrictive immunity test. Some countries such as the United States, Canada, Ireland, New Zealand and European civil law countries apply the general jure imperii/jure gestionis distinction to consider whether the foreign state, by entering an employment transaction, was acting in a private or a sovereign capacity. Other countries such as the United Kingdom and Australia, by contrast, have created specific provisions to deal with immunity and employment matters, an approach also taken in the UN Convention. In the European Union also, there is the further impact of art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and art 47 of the Charter of Fundamental Rights of the European Union, which provide for a right of access to a court for the vindication of a person’s rights and whether the rules of foreign state immunity infringe such a right.
A brief outline will be made of the approaches taken to foreign state immunity and employment claims in the United States, Canada, the United Kingdom and the European Union as a background to assessment of the Australian position. While caution needs to be expressed when making generalisations in this area, it can be said that a trend has emerged in a number of nation states to resolve immunity questions by focusing on the status and duties of the employee and/or the territorial link between the employee and the forum of litigation. Such an analysis is also present in art 11 of the UN Convention, an instrument that has strongly influenced the European Court of Human Rights (ECtHR) in its interpretation of art 6 of the ECHR, as discussed further below.
A comparative perspective
Under the United States’ Foreign Sovereign Immunities Act 1976, the relevant provision for employment claims is s 1605(a)(2), which provides an exception to immunity where the foreign state has engaged in ‘commercial activity’ in the United States. The legislative history to the US Act states that the employment of ‘diplomatic, civil service or military personnel’ would be considered governmental in nature, but not the employment of US citizens or third country nationals or the ‘engagement of laborers, clerical staff or public relations or marketing agents’.The US therefore clearly draws a distinction in the application of its immunity rules based on the status and role of the employee with immunity reserved for the more senior or policy- oriented positions. The nationality of the employee (in particular, whether he or she holds the nationality of the foreign state employer) is also relevant.
United States courts have, by and large, followed the guidelines in the legislative history in the context of disputes involving embassy and consular employees. So, for example, both a commercial officer with the trade and investment section of a consulate and an accountant at an embassy who had no role in the creation of government policy were allowed to sue their foreign state employers. An alternative (minority) view, however, has been applied that focuses instead on the activities of the foreign state at the place of employment, whether they are sovereign in nature and whether the claimant employee’s duties form part of such functions. In such cases, claims by embassy and consular employees have almost always been barred by immunity.
A broadly similar position applies in Canada which, like the US, also resolves employment immunity disputes by reference to whether a foreign state has engaged in ‘commercial activity’ under s 5 of the State Immunity Act 1985. Again, while most Canadian courts in embassy and consulate cases have focused on the duties and responsibilities of the employee in resolving the immunity question, some tribunals have considered all mission employment as unreviewable on the basis of the sovereign nature of the workplace.
In the UK, the position of embassy and consular employees has long been precarious because s 16(1) of the State Immunity Act 1978 precludes the bringing of claims by any person who is a ‘member of a diplomatic or consular mission’ against their employer, which is defined to include ‘administrative and technical staff’. Such a description has been held to embrace a wide range of embassy and consular employees in routine positions. Recently, however, the United Kingdom Supreme Court in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs held that the application of s 16(1) to bar a suit by employees in the service staff of a mission violated the claimants’ right of access to a court under art 6 of the ECHR. Hopefully the UK government will respond to this decision by amending the legislation to provide at least some scope for routine staff in subordinate positions to sue their employer.
Finally, reference should be made to art 11 of the UN Convention. Article 11(1) provides for a general exception to foreign state immunity in a proceeding which relates to a contract of employment unless, under art 11(2), the employee: (a) ‘has been recruited to perform particular functions in the exercise of governmental authority’; or (b) is a diplomatic agent or consular officer; or (c) the subject matter of the proceedings is the ‘recruitment, renewal of employment or reinstatement of an individual’.
In Cudak v Lithuania and Sabeh El Leil v France, the ECtHR held that a switchboard operator and an accountant respectively, both employed at foreign missions, were entitled to sue their foreign state employers. Article 11 of the UN Convention was found to represent customary international law and so any decision by a national court on state immunity that was inconsistent with art 11 automatically amounted to a breach of art 6 of the ECHR, which provides for a right of access to a court. In the case of both employees, such a violation was shown where the national courts granted immunity in circumstances where neither claimant performed particular functions in the exercise of governmental authority under art 11(2)(a). In short, the employees’ work did not engage the sovereign interests of the employer state and so their claims should have been allowed to proceed. The decisions in Cudak and Sabeh El Leil were highly influential in the United Kingdom Supreme Court decision Benkharbouche.
The Australian position
How does the FSIA address the issue of foreign state immunity and employment in embassies and consulates? Section 9 of the FSIA first creates a general presumption of immunity in an action brought against a foreign state in an Australian court or tribunal subject to exceptions in s 10−21. The relevant exception for employment claims is s 12. Section 12(1) establishes a general rule of non-immunity in the case of a proceeding in respect of an employment contract where the contract is made in Australia or to be performed (wholly or partly) in Australia. Subsection (3) restores immunity where the employee is a national of the foreign state but not a permanent resident of Australia at the time when the contract is made. Immunity is also reimposed under sub-s (5) where the employee is: (a) a member of the diplomatic staff of a mission as defined in art 1(d) of the Vienna Convention on Diplomatic Relations (1961) (VCDR) (that is, a member of staff having diplomatic rank); or (b) a ‘consular officer’ as defined in article 1(d) of the Vienna Convention on Consular Relations (1963) (VCCR) (that is, a member of staff having consular rank). Under sub-s (6), immunity also applies where: (i) the employee is a member of the administrative and technical staff of a mission as defined in art 1(f) of the VCDR; or (ii) a 'consular employee' as defined in art 1(e) of the VCCR unless the member or employee was, at the time the contract was made, a permanent resident of Australia. Under sub-s (7), 'permanent resident' includes an Australian citizen or a person whose continued presence in the country is not subject to time limitation.
Further, sub-s (2) of s 12 provides that any proceeding by an employee includes a claim 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’. In Robinson v Kuwait Liaison Office, it was confirmed that subsection (2) extends the scope of non-immunity beyond contractual claims to statutory actions such as under the former s 170EA of the Industrial Relations Act 1988 (Cth). An order for compensatory relief for unfair dismissal is also squarely within the terms of s 12(2).
Note, however, that under s 29(2) of the FSIA, a court or tribunal may not make an order that a foreign state employ a person or reinstate a person to a position. This provision is entirely consistent with international practice on the issue, which has long held that a foreign state employer is immune from proceedings in which an order for recruitment or reinstatement is sought. The rationale for this view is that imposing such an order on a foreign state would unduly interfere with its sovereign decisions with regard to staffing and personnel management. An order to pay a sum of compensation to a former employee, by contrast, is much less intrusive. Hence, only compensation orders may be made under s 12.
The Australian legislation therefore adopts an intermediate and balanced position in the area of persons employed by states in embassies and consulates based on the position and rank held by the employee and his or her residential links with the Australian forum. Instead of imposing immunity in the case of suits by all employees at diplomatic and consular missions, as occurs under the UK Act, the FSIA seeks to divide the employees into two groups: those in executive, policy-related positions and those in routine administrative, clerical or maintenance roles.
In the first group, immunity is imposed on the basis that such persons will almost certainly be engaged in matters of a policy-related or sensitive nature and so the foreign state's interest in protection of its sovereignty should be recognised. Also, an Australian court will generally have little interest in exercising jurisdiction over a dispute between a foreign state and one of its nationals but rather, in such a case, would wish to maintain good relations and comity with the foreign state. Under general principles of private international law, an Australian court would also likely be a ‘clearly inappropriate forum’ in such a case.
In the second group, by contrast, immunity will only apply where the employee is not a permanent resident of Australia. This provision is based on the premise that such persons are employed in roles largely indistinguishable from those in the private sector and only marginally involved in the sovereign activities of a mission. Hence, where the employee is an Australian permanent resident, the Australian interest in protection of its local labour force should prevail over comity concerns. Moreover, the Australian interest in employee protection is further engaged by the fact that a contract of employment between a foreign state and a local employee in a routine administrative role creates ‘a dynamic generally recognised as involving an unequal bargaining position between the State as employer, and the employee’. ‘The interest of Australia in providing a local forum [in such a case] outweighs the interest of the foreign state in exclusive jurisdiction.’
In the report of the ALRC upon which the FSIA was based, attention was drawn to a third category of mission employees, domestic servants. It was expressly stated in the report that such employees would come under the general presumption of non-immunity in s 12(1) provided that under sub-s (3) they were permanent residents of Australia at the time the contract was made. Note that the domestic servants referred to here are those directly employed by the foreign state, not those engaged by individual diplomatic staff such as an ambassador. While the ALRC felt that domestic servants in general were those employees ‘most in need of protection' in terms of non-application of the immunity rules, the sad reality is that those employed by diplomats in their households (as discussed below) enjoy almost no protection.
It would be fair to say that the FSIA is liberal and reasonably generous to employees in embassies and consulates by international standards. A clear attempt is made to protect those mission employees whose work and duties are largely indistinguishable from those in the private sector such as secretaries, chauffeurs and technical support staff. Such persons should not have their claims for redress barred simply because they happen to be employed by a foreign state at its embassy or consulate. Such an approach contrasts sharply with the position under the UK State Immunity Act mentioned above, where any employee who is a member of a diplomatic or consular mission, which is defined to include 'administrative and technical staff', is prevented from suing its foreign state employer.
The result therefore of this benevolent approach to foreign state employees under the FSIA is that there have been comparatively few Australian cases in which states have sought to plead immunity, possibly because such arguments would likely fail. So, for example, the following persons have been allowed to sue for damages in relation to their dismissal: a gardener at the Kuwait Embassy; a secretary/typist at the Indian Consulate in Sydney; a driver/receptionist at the Libyan Embassy; a receptionist/administrative assistant at the Italian Consulate in Adelaide; and an administrative assistant at the Korean Embassy, the High Commission of Malaysia and the Lebanese Consulate in Sydney.
In all of the above cases, once it was established that the claimant employee was a permanent resident of Australia at the time of entry into the contract, then the effect of s 12(1), (6) was to negate any claim for immunity.
Undeterred, some foreign states in the above cases sought to rely on other provisions in the FSIA to impose immunity. For example, it was argued in some decisions that an industrial relations commission, either state or federal, has no power to adjudicate upon matters under the FSIA. As noted above, s 12(1) of the FSIA provides that a foreign state will not be immune from 'a proceeding' where the terms of the provision are satisfied. Section 3 of the FSIA defines 'a proceeding' to mean 'a proceeding in a court but ... not ... a prosecution for an offence'. The term 'court' is then defined in s 3 to include ‘a tribunal or other body (by whatever name called) that has functions, or exercises powers, that are judicial functions or powers or are of a kind similar to judicial functions or powers’.
In a series of decisions, both the Australian Industrial Relations Commission (AIRC) and the New South Wales Industrial Relations Commission clearly found that each tribunal, while not having judicial functions or powers, 'has functions or exercises powers that are of a kind similar to judicial functions or powers' in its termination of employment jurisdiction. For example, the commissions can: conduct arbitration proceedings where parties may be represented; adjudicate upon applications for relief and determine whether a termination of employment was harsh, unjust or unreasonable; make orders in relation to this issue as well as on costs; administer oaths and receive evidence; and issue summonses for the attendance of witnesses and production of documents by witnesses.
Obviously, a mission employee's prospects for recovery from his or her foreign state employer would be substantially affected if he or she were to be prevented from bringing proceedings in a major tribunal in which claims for unfair dismissal are normally brought: an industrial relations commission.
Two other provisions in the FSIA have also been relied upon by foreign state employers in an attempt to secure immunity. First, there is s 6 of the FSIA, which provides that
this Act does not affect an immunity ... conferred by or under the Consular Privileges and Immunities Act 1972 [implementing the VCCR], the Defence (Visiting Forces) Act 1963 ... [or] the Diplomatic Privileges and Immunities Act 1967 [implementing the VCDR] ...
Section 6 was relied upon by the state of Malaysia in Adam in the following way. The defendant state argued that the exception to foreign state immunity in s 12 must be read subject to s 6 so that, in effect, a foreign state could not be stripped of immunity in circumstances where immunity would be available under the VCCR or VCDR. As will be discussed below, art 31(1)(c) of the VCDR provides for the immunity of diplomats when sued. In response to this argument, the AIRC correctly found that foreign state immunity has exclusive application where the state is the named defendant in litigation (as in Adam) but that diplomatic immunity only arises when an individual diplomat is sued.
As the AIRC said, the VCDR 'appears to provide immunities to the diplomatic staff of a foreign state. The application in this case is directed at the High Commission. The applicant's contract was expressed to be one between the applicant and the High Commission for Malaysia', which is the state of Malaysia, 'an entity whose contractual dealings in Australia are regulated by the [FSIA]'. Hence, the VCDR (and VCCR) are strictly irrelevant in employment actions against foreign states and the operation of s 12 of the FSIA is unaffected by these instruments.
A similar conclusion was reached in the Saville case (above) in response to an argument that, because the territory of an embassy is 'inviolable' under art 22 of the VCDR and may not be entered by officials of the receiving state, its premises are not therefore within Australia and so s 12 of the FSIA has no application. The AIRC found that merely because embassy premises were inviolable under the VCDR did not mean that they were not situated within Australia. In any event, s 12 clearly tolerates 'intrusion' 'into aspects of the activities of embassies' by allowing suits by employees against foreign states.
Another provision very recently relied upon by a foreign state in an attempt to obtain immunity is s 12(4) of the FSIA. This subsection provides that the removal of immunity in sub-s (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.
Section 12(4) of the FSIA was considered by the South Australian Industrial Relations Court (SAIC) in Benvenuto SAIC. This case involved an application by two former consular employees for entitlements alleged to be due upon termination under the Fair Work Act 2009 (Cth) (‘FW Act’) (specifically the Clerks' Award) and the Long Service Leave Act 1987 (SA) (LSLA). The foreign state argued that immunity applied because there were both inconsistent provisions in the contract and no Australian law that prohibited such terms.
The SAIC first rejected the argument by the employees that clear and unambiguous language was required to establish an inconsistent provision under s 12(4)(a), specifically, that ‘there must be a provision in the contract of employment providing in specific terms for immunity’. Instead, the term 'an inconsistent provision' must 'not ... be narrowly construed’ and ‘may be considered by reference either to a single provision or to multiple provisions of a contract of employment, and by asking whether the provision or provisions are expressly or impliedly inconsistent with the lifting of immunity under s 12(1)'.
In Benvenuto SAIC, the SAIC had to determine whether the creation of rights and obligations under the contract of employment by reference to Italian law indicated 'inconsistency with a lifting of immunity'. First, the SAIC noted that the Italian language of the contract of employment was supportive of the view that the contract was governed by Italian law. Secondly, there was the fact that the employees had elected for a contract governed by Italian law because of the greater perceived benefits compared to those that would apply under a contract governed by the law of South Australia. Thirdly, the SAIC found that the contract of employment made reference to Italian legislative decree 103/2000, s 6 of which provided an employee with the option to enter a contract governed by Italian law. Fourthly, other terms in the contract supported the view that Italian law governed the contract. While the contract specified a salary entitlement in Australian dollars, all other benefits and entitlements were fixed by reference to Italian instruments and administrative arrangements. Put together, the SAIC concluded that there were sufficient provisions in the contract to indicate that Italian law governed the contract, which created the inconsistency with the removal of immunity under s 12(1). Presumably, a straightforward clause in the contact expressly choosing Italian law would have sufficed.
The SAIC’s approach to the interpretation of s 12(4)(a), however, merits a response. It is far from clear that a choice of foreign law by parties in a contract is inconsistent, by itself, with the removal of a foreign state employer’s immunity before the Australian courts. In private international law, jurisdiction and choice of law are distinct concepts. A plea of immunity involves a challenge to the jurisdiction of the Australian court or tribunal, not a question of the law to be applied to the merits of the action. The issue of choice of law therefore normally only arises after a court has determined that it has jurisdiction to adjudicate. Consequently, it is perfectly possible for an Australian court to deny a foreign state’s claim for immunity and accept jurisdiction but nonetheless apply that state’s law to resolve the substantive matter. Such an outcome occurs often in disputes involving private parties. The situation would be different, however, if the parties included a clause in their contract requiring that all disputes be litigated in the foreign state’s courts (an ‘exclusive jurisdiction clause’). Such a clause imposes an obligation on the parties to litigate in the chosen court and will be enforced unless ‘strong reasons’ are shown for the matter to proceed in Australia. Such a clause would be plainly consistent with a recognition of foreign state immunity by an Australian tribunal.
Interestingly, similar sentiments were recently expressed by the Full Court of the Federal Court on appeal from the SAIC in Benvenuto FCAFC. The Full Court disagreed with the SAIC in finding that there was no inconsistency between the contract of employment and lifting of immunity under s 12(1) of the FSIA. Specifically, the fact that Italian law governed the contract and provided for rights and obligations different to those arising under Australian law was insufficient for ‘inconsistency’. Instead, the Full Court noted ‘the distinction between the jurisdiction of a court, on the one hand, and the law to be applied in the exercise of that jurisdiction, on the other’, seeing no reason why the SAIC ‘could not, on proper evidence, determine the parties’ entitlements by reference to the law of Italy’. Something more than a difference in laws is therefore necessary. Consequently, there must be ‘a provision in the contract of employment which is inconsistent with the local [Australian] court having jurisdiction over disputes arising from ... the contract. An actual inconsistency with the Australian courts having jurisdiction is required’.
In Benvenuto FCAFC, there were no ‘features of the rights and entitlements’ under the contracts that ‘were linked inherently to the jurisdiction of the Italian courts, in the sense that their very existence or quantification depended upon a judicial determination which only an Italian court could make’. Nor was there any aspect of the contracts that would be ‘incapable of determination by an Australian court’. As noted above, the inclusion of a foreign exclusive jurisdiction clause in a contract, particularly one stipulating a specialist labour or employment tribunal, may satisfy this test, as such a term would suggest that matters under the contract were unsuitable for Australian court adjudication.
The Full Court’s conclusion that there was no inconsistency under s 12(4)(a) made an inquiry into s 12(4)(b) strictly unnecessary. Yet, the SAIC in Benvenuto in reaching a different result on the s 12(4)(a) point, had to consider whether, under s 12(4)(b), there was an Australian law that ‘avoid[ed] the operation of, or prohibit[ed] or render[ed] unlawful the inclusion of, the inconsistent provisions, or at least some of the provisions'. The SAIC first noted: that the relevant contracts concerned the ‘employment of persons under a contract made in Australia’, ‘performed wholly within Australia’; that the foreign state was an Australian employer for the purposes of the FW Act; and that the employment was subject to the Clerks' Award. The foreign state argued that ‘the exception under s 12(4)(b) would be satisfied if there was no law of Australia which specifically provided that a foreign state could not contract out of the obligations’ sought to be enforced by the employees. The SAIC rejected this argument, saying that it imposed 'an unduly narrow construction' of the provision.
According to the SAIC, s 12(4)(b) establishes two categories: one being an Australian law which ‘does not avoid’ the operation of the inconsistent provision and one which does not ‘prohibit or render unlawful’ the inclusion of the provision in the contract. The first category is wider than the second and significantly, for a law to come within the first group, it is not necessary that it 'identify and prohibit contracting out of specific minimum entitlements'. It would be enough to 'avoid' an inconsistent provision if the law 'nullified' it. The SAIC then proceeded to identify specific examples in the present case where provisions of the FW Act and the LSLA, which deal with notice periods prior to termination and long service leave requirements, had the effect of nullifying the operation of individual terms in the employment contract by being inconsistent with such terms.
Yet, the SAIC noted that it will not be in every case where a provision in a contract that is inconsistent with the removal of immunity in s 12(1) will be avoided or prohibited by an Australian law. Where, for example, a provision in a contract conferred an entitlement on an employee under foreign law that was not the subject of any contrary Australian legislative provision, it would be unaffected. The question to be determined therefore under s 12(4)(b) is 'whether there is an Australian law which sets a minimum standard and impliedly and expressly forbids contracting out'. The result may therefore be that a foreign state employer in a single action is immune in respect of some employment claims but not others.
As noted, the Full Court on appeal from the SAIC, did not strictly have to address the application of 12(4)(b) because it found s 12(4)(a) not to be satisfied. Nevertheless, two judges of the Full Court (White J with whom Allsop CJ agreed) examined the issue. On the assumption that the contracts had included provisions to the effect that Australian courts would not have jurisdiction in relation to disputes arising under the contracts (and so triggered s 12(4)(a)), both s 545(3) of the FW Act and s 13 of the LSLA were found to have the effect of avoiding such contractual terms. Both statutory provisions expressly conferred jurisdiction on the SAIC to grant relief to employees under the respective enactments and so would have fallen under s 12(4)(b).
The decision of the Full Federal Court in Benvenuto is the most detailed consideration by an Australian superior court so far of s 12 of the FSIA. The decision is likely to be studied closely by foreign states with embassies and consulates in Australia, particularly in its endorsement of the view that in certain circumstances it is possible to 'reclaim' immunity under s 12(4) by including relevant foreign jurisdictional provision(s) in an employment contract. The ‘catch’ however is that such terms must not preclude the jurisdiction of Australian courts in breach of mandatory provisions of Australian labour legislation.
The approach of the Full Court to s 12(4) accords with Australian principles of private international law relating to choice of law in contract. Such rules allow parties to choose foreign law in a contract provided that it does not infringe overriding mandatory legislative rules of the Australian forum that demand to be applied. Sometimes, such mandatory rules are explicit like s 11(1) of the Carriage of Goods by Sea Act 1991 (Cth), which requires the application of Australian law in any contract for the carriage of goods by sea from an Australian port to a foreign country. Another example is s 67(a) of the Australian Consumer Law 2010 (Cth) (ACL) which requires the consumer guarantees in the ACL to be applied to any contract that would be governed by the law of an Australian State or Territory but for an express provision in the contract to the contrary. In other cases, mandatory legislative rules may be implied, such as s 18 of the ACL, which proscribes misleading or deceptive conduct in trade or commerce and which may apply even where parties have entered a contract governed by foreign law. All of the above legislative provisions impose Australian law for reasons of public policy: normally to protect a perceived weaker Australian party when contracting with a foreign entity. This is also the rationale of section 12(4): it allows parties to contract ‘into’ foreign state immunity by including relevant foreign jurisdictional provisions provided that such terms do not deprive an employee of the protection of fundamental Australian labour laws.
Yet the ultimate result in Benvenuto FCAFC is consistent with the observation made earlier: by international standards, the FSIA is by and large a generous and benevolent treatment of foreign state immunity from the point of view of embassy and consular employees. The Act ensures that, in most cases, a locally recruited employee in a subordinate or routine role will not be denied justice after termination of employment simply because of his or her possibly fortuitous choice of employer.
Collective employment claims
Before leaving the discussion of foreign state immunity, a question arises as to how collective employment claims by trade unions or other representative labour bodies may be dealt with under s 12 of the FSIA. The position is ambiguous since no express reference is made to collective actions in the text of the Act or the legislative history. For example, s 12(1) of the FSIA provides that a foreign state ‘is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment ...'. The reference to ‘a person under a contract of employment’ may suggest that only individual, not collective, actions were contemplated, although such a result may seem inconsistent with the expressed legislative intention to protect locally recruited persons who are permanent residents of Australia. For example, such persons, when working at an embassy or consulate, may wish to seek representation by a local trade union as their ‘bargaining representative’ in enterprise agreement negotiations. In such a case, the Australian interest in worker protection would seem clearly engaged. Yet, if the workplace is a highly sovereign location such as a military base or an embassy, then a foreign state may be wary of allowing trade union intrusion in what the state may perceive as its sensitive security interests. As was mentioned above in the context of the reinstatement remedy in s 29(2) of the FSIA, a collective claim in such circumstances may be seen as simply too invasive when compared to, for example, an individual employee’s suit for compensation.
There have been judicial decisions in the US, Canada and Italy on collective employee claims and foreign state immunity. The common thread in these cases is that, where the action is brought in relation to workers at a sensitive installation with high national security concerns, then the proceeding will be barred by immunity. For example, the Supreme Court of Canada refused to allow a claim for union certification brought by a labour organisation on behalf of Canadian civilian employees at a US military base, and an Italian court reached the same outcome in respect of a collective proceeding, alleging discrimination against trade union members, in relation to administrative and clerical workers at an embassy. By contrast, collective actions on behalf of employees at a state-owned bank or a cultural and educational organisation were both allowed to proceed.
It is not clear how an Australian tribunal applying the FSIA would regard such a collective action, but on balance, in the absence of clear words in the text and guidance from the preparatory report, the exception to immunity in s 12 may not apply in such cases. Yet that conclusion may not be the end of the inquiry; all this may mean is that the FSIA does not extend to such circumstances. Could a trade union instead argue that it would be entitled to bring the action under the Australian common law principles of foreign state immunity? Such principles of course may be held no longer to exist after the enactment of the FSIA, but if they were found still to apply, for example, to fill gaps in areas not expressly covered by the legislation, then a version of restrictive immunity could be asserted. In essence, the union could argue that the public/private acts distinction applies to resolve the immunity issue. This line of argument may however be of little assistance if the matter concerned embassy and consular employees and the Australian tribunal applied the Canadian and Italian decisions mentioned above, as immunity would arguably then apply. Consequently, an outcome where individual employees at embassies and consulates can sue their employers but collective actions on behalf of groups of employees cannot be brought seems an appropriate balancing of the interests of employee redress and foreign state security.
Employees of Diplomats and Consular Officers
The relatively favourable position enjoyed by persons employed at embassies and consulates in Australia differs markedly from the plight of those retained personally by diplomats or consular officers, typically to work as domestic servants. The principles of diplomatic and consular immunity, which apply where an individual foreign state official as opposed to the state itself is sued, have undergone little evolution or modification since their articulation in the VCDR and VCCR in the early 1960s. The result is that, compared to foreign state immunity, the rules of diplomatic immunity in particular are far more onerous from a claimant employee's point of view. Although there have been no Australian tribunal decisions on the issue of diplomatic and consular immunity in employment matters, the matter has arisen on a number of occasions in the United States and English courts. Since the relevant legal instruments governing diplomatic and consular immunity — the VCDR and the VCCR — are the same in almost all countries including Australia, English and American authorities are likely to be highly persuasive in the Australian context. Hence, in this section the focus will be on foreign decisions and their implications for employees who wish to seek redress in this country.
In the employment area, the pleas of diplomatic and consular immunity have typically been invoked where a domestic servant, employed by a currently serving diplomat or consular officer in his or her residence, commences court proceedings against the employer. Three types of claim have generally been made: where domestic workers' contractual rights as employees have been violated due to non-payment of wages, lack of leave etc, where workers have been victims of slavery, involuntary servitude or forced labour, or where they have been subject to human trafficking. Unlike foreign state immunity cases where most employees are 'locally recruited' residents of the forum country, domestic servant disputes typically involve workers hired outside the forum.
In response to such claims against them, diplomatic and consular agents have relied upon immunities granted to them under the VCDR and VCCR. Article 31(1) of the VCDR provides that a ‘diplomatic agent shall ... enjoy immunity from the [receiving state's] civil and administrative jurisdiction’. Article 31(1)(c) provides that immunity will not be available 'in the case of ... an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his [or her] official functions'. Such a provision has unfortunately acted as a form of absolute immunity barring all suits by employee claimants in diplomatic employment cases because entry into a contract with a domestic servant has not been considered a 'professional or commercial activity' on the part of the diplomat. Courts in the United States, the United Kingdom and other European countries have all adopted this position.
In Tabion v Mufti, a United States Circuit Court of Appeals had to consider an action by a Filipino domestic servant against her employer, a Jordanian diplomat. The court upheld the diplomat's plea of immunity under art 31(1)(c), holding that the hiring of a domestic servant as household help is an act incidental to the daily life of a diplomat and therefore not 'professional or commercial activity ... outside his [or her] official functions'. The court emphasised that ‘professional or commercial activity’ under the article was found to 'relate only to trade or business activity engaged in for personal profit.' United States courts in subsequent decisions have unanimously reaffirmed this interpretation of ‘professional or commercial activity’. Furthermore, until very recently, English courts took the same approach, with the Court of Appeal in Reyes v Al-Malki noting that 'as a matter of ordinary language, a contract for the provision of services which are incidental to [a diplomat's] family or domestic life is not “commercial activity”'. Such a conclusion was also supported by the context, object and purpose of the provision. A German court reached the same outcome.
Very recently, however, a three-judge majority of the United Kingdom Supreme Court, in the judgments on the appeal in Reyes v Al-Malki, has shown some tentative signs of a reassessment of this position. Strictly speaking, the court was not required to decide whether the diplomat was entitled to immunity under art 31(1)(c) since, by the time of the hearing of the appeal, he was no longer ‘in post’ and thus not entitled to the protection of the provision. On the assumption, however, that the provision applied, two distinct views were expressed as to whether the hiring of a domestic servant was professional or commercial activity.
Lord Sumption (with whom Lord Neuberger agreed) followed the traditional approach, finding that the expression ‘any professional or commercial activity’ refers to the diplomat ‘carrying on or participating in a professional or commercial business’, which means that the employment of domestic servants is excluded. In his view, ‘a wider scope for exception (c) would expose [diplomats] ... to local proceedings not only in respect of their employment of domestic servants but in respect of any transaction in the receiving state for money or money’s worth’. Such an outcome would therefore have the potential ‘to impede the functions of the mission to which [the diplomat] ... is attached’ and so would not be consistent with the scheme of the Convention. Lord Sumption further rejected the argument that art 31(1(c) should be interpreted in line with the ‘narrowing’ of foreign state immunity in mission employment cases noted above, or in light of the nature of the allegations against the diplomat — in particular human rights abuses such as trafficking. Both such facts are irrelevant to the characterisation of the diplomat’s acts under article 31(1)(c), a provision whose meaning, in any case, is fixed in time.
The three other judges of the Supreme Court in Reyes, Lords Wilson and Clarke and Lady Hale, took a refreshingly different view to the interpretation of art 31(1)(c). While noting that the court did not have to ‘answer [the question] in any binding form’ on the facts, Lord Wilson (with whom the other two judges agreed) noted a number of matters that may call for a change to the established view. The first is that the UK ‘confronts a significant problem in relation to the exploitation of migrant domestic workers by foreign diplomats’ and the second is ‘the universality of the international community’s determination to combat human trafficking’. Next, in defining ‘professional or commercial activity’ in art 31(1)(c), ‘another rational view is that the relevant “activity” is not just the so-called employment [of the domestic servant] but the trafficking; that the employer of the migrant is an integral part of the chain, who knowingly effects the “receipt” of the migrant and supplies the specified purpose, namely that of exploiting her, which drives the entire exercise from her recruitment onwards’. Further, ‘diplomatic immunity is an aspect of state immunity’, and it is anomalous that a suit by an employee of a diplomat in the UK will be barred by immunity in circumstances which, if the contract were entered into by a foreign state, immunity would not apply. Finally, all of the above factors are appropriate tools in interpreting art 31(1)(c), whose meaning is not fixed in time but may be determined ‘in accordance with the development of international law’. In the meantime and until a court directly has to resolve the question, it would be ‘preferable’ for the International Law Commission to be invited ‘to consider, and to consult and to report upon, the international acceptability of an amendment of art 31 which would put beyond doubt the exclusion of immunity in a case such as that of Ms Reyes’.
If the ‘traditional’ approach above were adopted by Australian tribunals, the picture would be fairly bleak for domestic servants employed by diplomats who wished to obtain redress. What is particularly disturbing about the decisions supporting this view is that they appear to have no regard for the differing range of circumstances forming the basis of the employee's complaint. For example, claims for breach of contract based on excessive working hours and inadequate wages are treated the same as where serious human rights allegations are alleged. In the United States cases of Sabbithi and Montuya, the claimants complained of physical abuse by their employer, and in the English Court of Appeal decision in Reyes, the complainant alleged human trafficking, but the result in each case was the same: immunity was upheld. To accept that such grave allegations must go un-adjudicated and un-remedied simply because of the privileged status of the defendant perpetrator seems extraordinary in 2017. It is therefore a credit to Lord Wilson and the other members of the majority in Reyes that, for the first time, it has been suggested that the grant of diplomatic immunity be made dependent on the nature of the allegations made and be denied where human trafficking or other serious abuses have occurred.
Until however such an approach achieves general acceptance, there remain two rays of light for domestic servants: first, where a proceeding is brought against a diplomat who has left his or her post, and second, where the domestic servant has the fortune to be employed by a consular official rather than a diplomat. In the first case, art 39(2) of the VCDR provides that a former diplomat will only be able to claim immunity 'with respect to acts performed ... in the exercise of his [or her] functions as a member of the mission'. In the second case, a similar rule to art 39(2) applies under art 43(1) of the VCCR which provides that a consular officer 'shall not be amenable to the jurisdiction of the [courts] ... of the receiving State in respect of acts performed in the exercise of consular functions'. What is significant in relation to both provisions, compared to art 31(1(c) of the VCDR, is that the employee does not have to show that the employer engaged in 'professional or commercial activity' to overcome immunity; only that the employer’s conduct falls outside official functions. Not surprisingly in both of the above situations, domestic servants have had far greater success in suing their employers than in proceedings against an incumbent diplomat.
In the case of former diplomats, both United States and United Kingdom courts have held that immunity will not apply under art 39(2) in respect of acts that ‘pertain to [a diplomat's] ... household or personal life ... that may provide, at best, “an indirect” rather than a “direct ... benefit to” diplomatic functions’. Immunity therefore does not apply for acts that are incidental to the exercise of a diplomat's functions as a member of the mission but only those 'inextricably tied to a diplomat’s professional activities’, that is, official acts'. A diplomat's employment of a domestic servant is not an official act given that the duties of such a person typically involve housekeeping and childminding in the diplomat's personal residence. United Kingdom courts have also held in recent cases involving former diplomats that such work performed by domestic servants falls outside the official functions of a diplomat as it is not ‘done for or on behalf of’ the foreign state.
Significantly also, US courts have relied on the fact that the diplomat had allegedly committed serious human rights abuses such as rape and human trafficking in finding that the defendant's acts were outside official functions. In the courts' view, such heinous conduct strengthened the argument that the diplomat had not been engaged in official acts, since such conduct, by definition, could never be 'authorised'. By contrast, the UK employment tribunal in Al-Malki v Reyes felt that the question was simply whether the employee's duties fell within the official functions of the diplomat; behaviour towards the domestic servant had no relevance to that inquiry. Yet, in a later case, another English judge seemed to backtrack from this position, finding that allegations of discrimination and harassment in the form of sexual abuse cannot 'sensibly be argued ... [to be] acts carried out in the exercise of the functions of the mission'.
It may be that in most cases it will be enough to defeat immunity for a domestic servant to show that his or her work, being predominantly household-related, fell outside the diplomat's official duties. Arguably however, where the diplomat has engaged in egregious conduct towards the employee, this should be a further supporting factor in showing that no official acts were involved.
Note, however, that despite the better outcomes on the immunity issue for these domestic servants, the practical barriers to obtaining redress against a former diplomat may still be a disincentive to sue. For example, a diplomat at the end of his or her posting may well have left the receiving state and so be difficult or impossible to locate for service of Australian tribunal process. Alternatively, he or she may have no assets in Australia that are capable of being attached in the event that a judgment on the merits for damages is obtained. Also, for a domestic servant to have to travel to the former diplomat's country of residence and commence proceedings there is not only financially unrealistic but unlikely to yield a positive outcome if the courts in that country are not independent of the executive. A finding of non-immunity may therefore be a hollow victory for claimants. The best way forward, therefore, is for art 31(1)(c) of the VCDR to be amended to delete the ‘professional or commercial activity’ requirement, and to be put in a form similar to art 39(2), with the result that currently serving diplomats may be sued simply where they engage in conduct outside their official functions. As noted above, a majority of the UK Supreme Court in Reyes expressed support for such a view. Such a result can be seen in the case of claims against serving consular officials by domestic servants. Such actions are governed by art 43(1) of the VCCR which, as noted above, is in largely the same terms as art 39(2) of the VCDR. Relevantly, in a United States Court of Appeals decision, Park v Shin, a domestic servant was held entitled to sue her employer, the Deputy Consul General of Korea, on the basis that the bulk of the household duties she performed related to the care of the consular official and his family, not official consular functions. Of relevance also was the fact that the employee entered the United States on a visa for ‘personal employees’ and that her salary, medical expenses and costs of travel were all paid by the Shins directly. The claimant was therefore the Shin family’s ‘personal domestic servant’. Again, once the burdensome 'professional or commercial activity' requirement is removed, the domestic servant's prospects of defeating immunity improve dramatically, at least when such person is engaged in predominantly household duties.
The approach under art 39(2) of the VCDR and art 43(1) of the VCCR should form the basis for future negotiations on the status of art 31(1)(c) of the VCDR and it is suggested that the Australian government should take the lead on this issue in international forums. While it is impossible to know if domestic servants in Australia have been deterred from bringing actions against their diplomat employers because of this harsh provision, an amended version of art 31(1)(c) would go some way to avoiding injustice in the future. Such action would ideally accompany other measures such as imposing mandatory welfare checks for domestic workers, overhauling the screening process for domestic workers’ visas (which has occurred) and expelling diplomats who breach Australia’s industrial or anti-slavery laws.
This article has examined the position under Australian law of persons employed by foreign states in embassies and consulates and also those retained directly by diplomats and consular officers. The difference in treatment between the two groups of employees is stark and unconscionable: while employees of foreign states enjoy generous rights of access to justice by international standards, those engaged by diplomats, normally domestic servants, have very limited rights of redress due to the operation of the rules on immunity. One solution to the problem would be to amend the VCDR but as this will require the support of many nation states, it is incumbent upon the Australian government to make this an issue of international concern.
[*] Professor, Melbourne Law
School, University of Melbourne.
 For analyses of the position in other jurisdictions, see R Garnett, ‘State Immunity in Employment Matters’ (1997) 46 ICLQ 81; R Garnett, ‘Precarious Employment? Varying Approaches to Foreign Sovereign Immunity in Labor Disputes’ (2018) 51 The International Lawyer 25; R Garnett, ‘The Precarious Position of Embassy and Consular Employees in the United Kingdom’ (2005) 54 ICLQ 705; R Garnett, ‘State Immunity and Employment Relations in Canada’ (2015) 18 CLELJ 643; R Garnett, ‘State and Diplomatic Immunity and Employment Rights: European Law to the Rescue?’ (2015) 64 ICLQ 783. See also J Brower, State Practice on Sovereign Immunity in Employment Disputes Involving Embassy and Consular Staff (Center for Global Legal Challenges, 19 December 2015), at <https://law.yale.edu/system/files/state_immunity_in_employment_disputes.pdf> (accessed 15 February 2018); P Webb, ‘The Immunity of States, Diplomats and International Organizations in Employment Disputes: The New Human Rights Dilemma?’ (2016) 27 EJIL 745; A Sanger, ‘State Immunity and the Right of Access to a Court under the EU Charter of Fundamental Rights’ (2016) 65 ICLQ 213.
 See Saab v Embassy of Egypt  ACTSC 80 at , where Miles CJ referred to a foreign state choosing to claim ‘diplomatic immunity’ when what was meant was ‘foreign state immunity’.
 J Crawford, Brownlie’s Principles of Public International Law (8th ed 2012 Oxford University Press) at 487.
 See, eg, Claim Against the Empire of Iran (1963) 45 ILR 57 (West German Federal Constitutional Court).
 See eg Trendtex Trading Corporation v Central Bank of Nigeria  1 QB 529; Alfred Dunhill of London Inc v Cuba,  USSC 83; 425 US 682 (1976).
 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 310 per Mason P; Re Tolotti and Commonwealth of Australia (1986) 9 ALN N148 at N152;  AATA 42; Hussein v Libya  AIRC 48 at .
 Reid v Nauru  1 VR 251;  VicRp 17.
 European Convention on State Immunity 1976 (ETS 74).
 Foreign Sovereign Immunities Act of 1976, Pub L No 94-583, 90 Stat 2891.
 State Immunity Act, 1985, RSC 185, c S-18.
 United Nations Convention on the Jurisdictional Immunities of States and Their Property 2004, UN Doc A/5938 (‘UN Convention’).
 Australian Law Reform Commission, Foreign State Immunity, Report No 24 (1984) (‘ALRC Report’).
 Convention for the Protection of Human Rights and Fundamental Freedoms, 1953, 213 UNTS 222, commonly known as the European Convention on Human Rights; Charter of Fundamental Rights of the European Union, 2007, C303.
 Legislative History of Foreign Sovereign Immunities Act of 1976, HR Rep No 94-1487, reprinted in United Nations Legislative Series, Materials on Jurisdictional Immunities of States and Their Property (1982, United Nations Office of Legal Affairs) 107-8.
 Holden v Canadian Consulate,  USCA9 2543; 92 F 3d 918 (9th Cir, 1996).
 El-Hadad v United Arab Emirates, 496 F 3d 658 (DC Cir, 2007).
 See, eg, Hijazi v Permanent Mission of Saudi Arabia to the United Nations, 403 Fed Appx 631 (2nd Cir, 2010), applying Kato v Ishihara,  USCA2 67; 360 F 3d 106 (2nd Cir, 2004).
 See, eg, Roy v South Africa, 2013 ONSC 4633; Butcher v Saint Lucia (1998) 79 ACWS (3d) 815 (Ont CA);  61 OTC 208.
 See, eg, Bentley v Consulate General of Barbados, 2010 HRTO 2258 (Ont Human Rights Tribunal).
 See, eg, Ahmed v Saudi Arabia  2 All ER 248;  ICR 25; Garnett, ‘State Immunity in Employment Matters’, above n 1, at 87–8.
  UKSC 62 (18 October 2017) (Benkharbouche).
 (2010) 51 EHRR 15 (Cudak).
  ECHR 1055 (Sabeh El Leil).
 Cudak, above n 22, at .
 See Benkharbouche, above n 21.
 (1997) 145 ALR 68.
 Thomas and Consulate General of India  NSWIRComm 24 at .
 Fogarty v United Kingdom (2002) 34 EHRR 12;  ECHR 762; UN Convention art 11(2)(c).
 Thomas and Consulate General of India  NSWIRComm 24 at ; Robinson v Kuwait Liaison Office (1997) 145 ALR 68 at 78.
 ALRC Report, above n 12, at .
 Voth v Manildra Flour Mills Pty Ltd (1990) 117 CLR 538;  HCA 55.
 Italy v Benvenuto  SAIRC 31 (Benvenuto SAIC) at  referring to ALRC Report, above n 12, at . Benvenuto was very recently affirmed on different grounds by the Full Federal Court (see Italy v Benvenuto  FCAFC 64) (Benvenuto FCAFC).
 Firebird Global Master Fund II v Nauru (2015) 258 CLR 31; (2015) 326 ALR 396;  HCA 53 at  (Nettle and Gordon JJ).
 ALRC Report, above n 12, at .
 Note the following cases involving suits by embassy and consular employees where foreign state immunity was not invoked: Kim v Embassy of Algeria  FWC 4726; Kumar v Consulate General of India  FCCA 7; Gibbs v Embassy of Mexico  FWAFB 5840; Riskalla v Consulate General of Portugal  NSWIRComm 185; Sidhwa v British Consulate General  IRCA 129; Mucci v Consulate General of Italy  FWA 9243. In Mucci however the employee was a national of the foreign state and had his ‘fiscal residence’ in that country. Query whether immunity would have existed in such circumstances under s 12(3) of the FSIA.
 Robinson v Kuwait Liaison Office (1997) 145 ALR 68.
 Thomas and Consulate General of India  NSWIRComm 24.
 Hussein v Libya  AIRC 486 (Hussein).
 Benvenuto SAIC, above n 32 (affirmed on different grounds  FCAFC 64).
 Saville v Embassy of South Korea  AIRC 598 (Saville).
 Adam v High Commission of Malaysia  AIRC 882 (Adam).
 Kassis v Lebanon (2014) 283 FLR 408;  FCCA 155.
 Adam, above n 41, at . See also Hussein, above n 38, ; Saville v Embassy of South Korea  AIRC 598 at ; Thomas and Consulate General of India  NSWIRComm 24 at , – . Cf Christodulakis v French Consulate  AIRC 460.
 Hussein, above
n 38, at .
 Adam above n 41.
 Ibid, at .
 Saville v Embassy of South Korea  AIRC 598.
 Ibid,at .
 Benvenuto SAIC, above n 32 (affirmed on different grounds  FCAFC 64).
 Clerks Private Sector Award 2010 [MA000002] (at 4 December 2017).
 Benvenuto SAIC, at .
 Ibid, at .
 Ibid, at .
 Ibid, at .
 Ibid, at .
 Ibid, at .
 Ibid, at .
 See generally R Mortensen, R Garnett and M Keyes, Private International Law in Australia 3rd edn, LexisNexis Butterworths, Chatswood, 2015.
 For an example in the personal injury context, see Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; (2002) 187 ALR 1;  HCA 10.
 Mortensen, Garnett and Keyes, above n 58, ch 4.
 Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 at 445, 447.
 Benvenuto FCAFC, above n 32 (White J with whom Allsop CJ and Besanko J agreed).
 Ibid at .
 Ibid at  (emphasis added).
 Ibid at .
 While the Full Court noted (at ) that ‘inconsistency’ would not be found merely because ‘the courts of the foreign state could hear and determine the dispute’, the presence of an exclusive jurisdiction clause stipulating the courts of the foreign state goes further in requiring the dispute to be heard by such courts.
 Benvenuto SAIC, above n 32, at .
 Ibid, at .
 Ibid, at . A similar conclusion was reached in respect of another foreign state employer in Kassis v Lebanon (2014) 282 FLR 408;  FCCA 155 on the basis that the state, ‘through its Consulate carried on an activity [of employment] of a governmental nature’ under s 14(1)(f) of the FW Act: at .
 Ibid, at . But contrast Kumar, above n 35, where it was held that the Clerks’ Award did not apply to ‘employment in the service of a foreign state’: at .
 Ibid, at .
 Ibid, at .
 Ibid, at  (emphasis added).
 Benvenuto SAIC, above n 32, at .
 Ibid, at .
 Ibid, at –.
 Ibid, at .
 Ibid, at .
 Benvenuto FCAFC above n 32 at .
 Ibid at  – .
 Akai above n 61.
 For a discussion in the international arbitration context, see Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; (2006) 238 ALR 457;  FCAFC 192 at .
 See FW Act, Part 2-4.
 United States v Public Service Alliance of Canada (1992) 91 DLR (4th) 449;  2 SCR 50. See also, more recently, Defense Contract Management Agency ¾ Americas (Canada) v Public Service Alliance of Canada, 2013 ONSC 2005, where an application by the Public Service Alliance to be certified as the bargaining agent for Canadian civilian employees of a branch of the US government was refused on the ground of immunity. The branch was engaged in the procurement in Canada of supplies, services and weapons for the US military. See also United States v Nolan  1 CMLR 32 at  (CJEU).
 Italian Trade Union for Embassy and Consular Staff v United States (1981) 65 ILR 338.
 State Bank of India v National Labor Relations Board,  USCA7 955; 808 F 2d 526 (7th Cir, 1986).
 Goethe House New York, German Cultural Center v National Labor Relations Board,  USCA2 157; 869 F 2d 75 (2nd Cir, 1989).
 Note that the VCDR was implemented in Australian law in the Diplomatic Privileges and Immunities Act 1967 (Cth) and the VCCR in the Consular Privileges and Immunities Act 1972 (Cth).
  USCA4 149; 73 F 3d 535 (4th Cir, 1996).
 Ibid at 537, 538–9.
 Paredes v Vila, 479 F Supp 2d 187 (DDC, 2007); Sabbithi v Al Saleh, 623 F Supp 2d 93 (DDC, 2009) (Sabbithi); Montuya v Chedid, 779 F Supp 2d 60 (DDC, 2011) (Montuya); Fun v Polger, 993 F Supp 2d 470 (2014).
  EWCA Civ 32.
 Ibid, at .
 Ibid, at −, .
 Rechtsprechung [Higher Regional Court], Pfarr v Anonymous, 9 November 2011, 17 Sa 1468/11; see also Komla v The South African High Commissioner to New Zealand  NZERA Wellington 152.
  UKSC 61 (Reyes).
 Ibid, at  (emphasis added), .
 Ibid, at .
 Ibid, at .
 Ibid, at .
 Ibid, at .
 Ibid, at .
 Ibid at .
 Ibid, at .
 Ibid, at .
 Ibid, at  (emphasis added).
 Ibid, at .
 Ibid, at .
 Ibid, at .
 Ibid, at 
 Sabbithi, above n 92.
 Montuya, above n 92.
 Swarna v Al-Awadi, 622 F 3d 123 (2nd Cir, 2010) at 134–5, quoting Park v Shin,  USCA9 915; 313 F 3d 1138, 1142 (9th Cir, 2002). See also Baoanan v Baja, 627 F Supp 2d 155 (SDNY, 2009).
 Swarna v Al-Awad, 622 F 3d 123 (2nd Cir, 2010) at 135.
 Reyes v Al-Malki  UKSC 61 at  (Lord Sumption, with whom all the other judges agreed on this point); Abusabib v Taddese  UKEAT 0424_ 11_ 2012 at , affirmed  EWCA Civ 1351 at ; Wokuri v Kassam  EWHC 105 (Ch).
 Al-Malki v Reyes  UKEAT 0403_12_0410 at , affirmed Reyes v Al-Malki  EWCA Civ 32 at . The UK Supreme Court, on appeal, expressed no view on this issue.
 Abusabib v Taddese  UKEAT 0424_ 11_ 2012 at , affirmed  EWCA Civ 1351 at .
 Reyes v Al-Malki  UKSC 61 at .
 Ibid at  (Lord Wilson with whom Lady Hale and Lord Clarke agreed).
 Park v Shin,  USCA9 915; 313 F 3d 1138 (9th Cir, 2002).
 Ibid at 1142 (emphasis in original). Note that Park v Shin was recently applied to deny immunity in Rana v Islam, 305 FRD 53 (SDNY, 2015). The court also relied on art 43(2)(a) of the VCCR, which provides that even if acts were performed in the exercise of consular functions, no immunity exists where an action arises ‘out of a contract concluded by a consular officer ... in which he [or she] did not contract expressly or impliedly as an agent of the sending State’: at .
 H Moore, ‘Plight of Domestic Workers Must Not Be Overlooked’, Sydney Morning Herald, 15 June 2016.