The Full Court of the Federal Court of Australia (Rangiah, Lee and Raper JJ) has today dismissed an application for judicial review brought by the Royal Embassy of Saudi Arabia Cultural Mission, confirming that it is not immune from unfair dismissal proceedings before the Fair Work Commission. The Court held that the Commission is a “court” for the purposes of the Foreign States Immunities Act 1985 (Cth) (FSIA), that the unfair dismissal claims brought in the Commission fell within the employment contract exception in s 12 of that Act, and that the FW Act applies to foreign States acting as employers in Australia. The Court rejected arguments based on diplomatic immunity, contractual “exclusive jurisdiction” clauses, and visa status, and upheld the Commission’s jurisdiction in respect of the relevant employees. The application was therefore dismissed in full.
The decision has potentially significant implications for foreign States employing Australian citizens or permanent residents in Australia, confirming that, subject to the operation of the FSIA and its statutory exceptions such employment relationships may fall within the unfair dismissal jurisdiction of the Commission.
Thomas Scott of New Chambers, led by Jonathan Kay Hoyle SC of 11 St James Hall and Derek Wong of Alinea Chambers, and instructed by Maria O’Brien of Clayton Utz, appeared for the successful respondents on a pro bono basis. A copy of the decision can be found here.
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