Steve Jacobsen was watching the television news in June 2018 when a story about an increase to the minimum wage made him realise he was probably being underpaid.
He had been a driver at the Ghana High Commission in Canberra for two months, a locally employed member of staff serving the diplomatic mission.
Although he followed the right process - bringing it up with his employer, contacting the Fair Work Ombudsman, then the Fair Work Commission - Mr Jacobsen eventually came to realise there was little he could do.
Mr Jacobsen said there was a widespread culture of underpaying locally employed drivers, but few were in a position to speak out, afraid of losing their jobs. A lawyer familiar with similar cases agreed.
Mr Jacobsen, 55, said he was told by officials at the high commission he did not have to be paid according to Australian award wages and he was doing a lot better than a driver in Ghana.
There is no doubt in Australian employment law that Mr Jacobsen was entitled to award wages and the Department of Foreign Affairs and Trade regularly reminds diplomatic missions locally employed staff must be paid according to Australian standards.
But there was no way to reasonably force the high commission to pay back what Mr Jacobsen said was owed to him. Diplomatic immunity meant the Ghana High Commission could not be subject to the Fair Work Act.
Mr Jacobsen calculated between April 2018 and March 2019, during his employment, he was underpaid more than $10,000, equivalent to a quarter of his annual salary, when he missed out on award wages and appropriate overtime pay.
When Mr Jacobsen started at the embassy his salary was $37,960 a year, below the appropriate award classification for his position of $38,599 a year.
He was initially paid $10 an hour overtime, well below the minimum $29.30 hourly overtime rate then in the award. Mr Jacobsen said he worked about 10 hours of overtime a week and the rate was later $20 an hour.
"I would have thought that DFAT's regular meetings would have made [the requirements] abundantly clear to the embassies," Mr Jacobsen said.
"So that's why I sort of think the embassies that are doing this know full well that they're flouting Australian laws but they know also they can't be touched."
On March 11, 2019, Mr Jacobsen, following the advice of the Fair Work Ombudsman, delivered a letter of demand to the high commission.
Three days later, Mr Jacobsen, who has worked for three diplomatic missions, was sacked. In a letter, he was told the reason was unsatisfactory conduct and performance, but was told of no specific incidents.
Mr Jacobsen's dismissal came as a surprise. Representatives from the Fair Work Ombudsman had told him he could not be sacked while his complaint progressed.
"I didn't know that until push came to shove and then [the Fair Work Ombudsman] tells me, 'Yeah, but we can't enforce it, because it's an embassy'," he said.
I can't think of one other law which you're required to comply with but if you don't, there is no consequence.
Lawyer Stefan Russell-Uren
In a letter to the Fair Work Commission, dated April 15, 2019, Ghanian high commissioner Edwin Adjei said Mr Jacobsen's dismissal was not unfair and denied he was underpaid.
"Mr Jacobsen was paid the agreed penalty/overtime rates in accordance with his contract of employment. The High Commission wishes to deny that Mr Jacobsen is owed any difference in wages or overtime allowances," Mr Adjei wrote.
The letter said the mission regularly reviewed payment levels in accordance with Australian standards of living.
"The High Commission and its staff hold in high esteem the relations between our two countries and therefore makes immense efforts to abide by the Laws of the Commonwealth of Australia," Mr Adjei wrote.
Mr Jacobsen "unilaterally embark[ed] on industrial action by refusing to carry out his assigned overtime duties contrary to his contract", the letter said.
This came after Mr Jacobsen advised Mr Adjei on March 10, 2019 he would not perform any overtime until his pay issue had been resolved.
On June 27, 2019, the Fair Work Commission issued Mr Jacobsen with a certificate so he could take the matter to court, satisfied "all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful".
Mr Jacobsen sought legal advice and was told he had a solid case against the high commission, which would likely not appear in court. Mr Jacobsen would then win by default, but there was no means for the court to force the high commission to repay the wages.
The Ghana High Commission did not respond to multiple enquiries, including an email with detailed questions about the case.
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Stefan Russell-Uren, a commercial lawyer at Aulich Law who was worked on diplomatic employment cases for more than eight years, said underpaid embassy workers were often limited to Pyrrhic victories, facing high legal costs to achieve limited outcomes.
He said a Commonwealth scheme to compensate underpaid local embassy workers should be put in place.
"Otherwise what happens is you're extending these enormous privileges and immunities to foreign states, and you expect they will comply with the laws they are required to comply with. But when they don't, the people who are entitled to the benefit of those laws get screwed. There's no other way to put it," Mr Russell-Uren said.
He said the current system undermined court authority. "I can't think of one other law which you're required to comply with but if you don't, there is no consequence."
University of Melbourne law school Professor Richard Garnett said Australian embassy workers were in a relatively strong position, and it was "utter nonsense" diplomatic missions could hide behind diplomatic immunity.
He said the federal government generally wanted to avoid offending foreign governments.
"There's a geopolitical dimension to this," Professor Garnett said.
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Do you know more? jasper.lindell@canberratimes.com.au
