Staff
Below are details on various options Diplomats have for engaging staff or services.
Australia currently has a very low unemployment rate of around 5.2% (and Canberra is even tighter at around 3.1%). As a result, it is becoming increasingly more difficult to find appropriate staff, and wages or fees are increasing. With a rapidly ageing population in Canberra, this situation is expected to get much worse.
Locally engaged staff
Contractors
Embassies may contract with businesses that provide staff or services to the Embassy. Such persons are employed by the private business and are not employees of the Embassy. The Embassy's only obligation is to pay the fee charged by the business. Regulatory issues (such as labour laws, workers compensation insurance, occupational health and safety obligations, and superannuation contributions) are the responsibility of the private business. These private businesses must hold an Australian Business Number (ABN).
Employees
Embassies may directly employ staff who, because of their Australian citizenship or permanent resident status, are eligible to work in Australia. Missions may not sponsor, as locally engaged staff, persons from their own or third countries for entry to Australia on long term business or other types of temporary entry visas.
Embassies are required to notify DFAT of the engagement and discharge of locally engaged staff on forms D and F - Appendices 4 and 6. Further details are available on the DFAT website at:
www.dfat.gov.au/protocol/Protocol_Guidelines/09.html
Australian labour laws
Advice from DFAT on the application of local labour laws is available at:-
www.dfat.gov.au/protocol/Protocol_Guidelines/09.html
In summary, the DFAT advice is that Diplomatic Missions are required to comply with Australia labour laws for the employment of Australian citizens and permanent residents.
This means that locally engaged staff are entitled to minimum employment conditions, including wages, leave and safety conditions and protection from unlawful discrimination and harassment.
Australia has high standards of workplace practice.
Australian labour laws are complex. Assistance (for a fee) may be obtained from employer organisations. The employer organisation in the ACT is:-
ACT & Region Chamber of Commerce and Industry, Deakin, Ph (02) 6283 5200 www.actchamber.com.au
Alternatively, some information may be obtained from the Australian Department of Education, Employment and Workplace Relations (DEEWR) at the following:
www.deewr.gov.au (Main Site)
www.fairwork.gov.au (Wages and conditions of employment information)
Methods for employing local staff
There are 3 options for employing local staff:-
1) Industrial Award. There are different Awards for clerical staff, drivers, cooks, waiters, cleaners, gardeners, etc. Rates of pay, working hours, penalty rates (for working outside standard working hours) and other terms and conditions vary between awards. Each individual requirement of an award must be complied with and there is no ability to "offset" or "average out" the individual requirements. An example is if a person is paid more than the award rate of pay, this cannot be offset against other obligations under the award.
These awards are all "safety net" awards and list the minimum legal requirements. In a tight labour market, it is rare to find people employed on the rates of pay and other conditions listed in industrial awards. In most cases, people are paid substantially above the rates shown in Industrial Awards.
An example. The Award rate for a receptionist (grade 2 clerk - subject to what the person actually does) is currently $650 per week or $33,800 per annum. This is for ordinary working hours and penalty rates of +50% and +100% apply for work performed outside ordinary working hours. However, the current Hays Personal Salary Survey, shows that in Canberra, the market rate is between $38,000 and $43,000 and is typically $41,000. Penalty rates also apply for work conducted outside of standard office hours.
Another example. The Award rate for a Personal Assistant (PA) is currently $740 per week or $38,480 per annum. This is for ordinary working hours and penalty rates of +50% and +100% apply for work performed outside ordinary working hours. However, the current Hays Personal Salary Survey, shows that in Canberra, the market rate is between $48,000 and $60,000 and is typically $55,000. Penalty rates also apply for work conducted outside of standard office hours.
Another example. The award rate for a casual qualified waiter (grade 4) is $21.82 per hour and $23.56 for work after 7.00 pm to midnight Monday to Friday. Penalty rates apply for Saturdays (50% surcharge) and Sundays (75% surcharge). The award provides for a minimum payment for 2 hours work on each occasion. However, the current market rate is significantly above these levels. In addition, if the Mission does not employ the waiter directly (which requires a form to be lodged with DFAT as well as employment obligations) then the contracting company providing the service will also add their margin to the fee charged. The margin will also cover workers compensation insurance and other employment costs.
2) Collective Agreement. This is an agreement between the employer (the Mission) and all of the locally hired employees, or a group of locally hired employees. It must be approved by a majority of the people covered in a secret ballot. There are a number of regulatory requirements that must be met. The advantage of an Enterprise Agreement is that it automatically covers changes in staff or new appointments.
3) Mix. A mix of the above arrangements is possible. For example, a Collective Agreement could cover all office administrative staff, whilst awards cover a driver, or a gardener.
Superannuation Guarantee
DFAT has advised that the Superannuation Guarantee scheme is an integral part of the Australian Government's retirement income policy. The scheme requires all employers, including diplomatic missions, to provide a statutory level of superannuation support for all members of their staff who are citizens or permanent residents of Australia. This applies equally to members of the Missions' locally engaged staff and any Australian citizens or permanent residents who may have been accorded diplomatic or consular status.
The scheme is self-assessing. Employers are required to calculate the amount of superannuation they must contribute, and make all the necessary arrangements to meet their obligations.
The statutory level of contributions (currently 9%) is calculated as a percentage of an employee's earnings (generally salary or wage income plus allowances).
Superannuation support provided by an employer must be in addition to the employee's salary or wages. The contributions must be paid into a superannuation fund that is a complying fund under the Superannuation Industry (Supervision) Act 1993, the Australian regulatory law for superannuation funds.
The employee may specify the complying superannuation fund they want to receive the contributions paid for them. Each employer is required to identify a "default" complying fund for employees who do not choose their own fund.
Workers' compensation
Provision of compensation for workers who are injured or become ill in the course of their work is the responsibility of the employer. It is not part of the state social security system.
Locally engaged staff employed by diplomatic missions can sue their employer for compensation in respect of work-related injury or illness. The definition of "work-related" is very wide and can include home to work travel. Courts frequently award very large payments.
Employers in Canberra are required by law to hold approved workers' compensation insurance policies. Significant penalties apply for failure to insure.
Employers are required by law to maintain accident registers and to report certain accidents within legislated time frames.
Details are available from:-
ACT & Region Chamber of Commerce and Industry, Deakin, Ph (02) 6283 5200 www.actchamber.com.au
or from the ACT Government regulator, Workcover, at:
http://www.ors.act.gov.au/WorkCover/WebPages/WorkSafe/ohs.htm
Occupational Health and Safety (OH&S)
Employers have a legal obligation to secure the health, safety and welfare of employees at work. Significant penalties (both personal and organisational) apply for failure to do so.
Employers must
protect people at or near workplaces from risks to health or safety arising out of the activities of employees at work.Employers must promote an occupational environment for employees that is adapted to their health and safety needs
Employers must
foster a cooperative consultative relationship between employers and employees on the health, safety and welfare of employees at work.Workcover publishes a guide for employers. It is available for downloading at:-
http://www.ors.act.gov.au/WorkCover/pdfs/WorkSafe/Guides/Guide-OHS_Act.pdf
Workcover also maintains a website at:
http://www.ors.act.gov.au/WorkCover/WebPages/WorkSafe/ohs.htm
Advice, assistance and support is available from the employer organisation:
ACT & Region Chamber of Commerce and Industry, Deakin, Ph (02) 6283 5200 www.actchamber.com.au
Private domestic workers
DFAT has advises that:
Domestic staff who are nationals of and employed by the sending State may be nominated as members of the service staff of a mission. Service staff must be notified to DFAT by the processes outlined in Chapter 4 of the DFAT Guidelines.
Private domestic workers employed directly by officials may be brought to Australia under diplomatic privilege and may come from the officer's sending State or a third country. Grant of entry to Australia for a private domestic worker is contingent on Protocol Branch agreement, and the fulfilment of a range of immigration requirements and other conditions by both the worker and the employer.
If granted a visa in this way, the private domestic worker is regarded as the personal employee of the sponsoring diplomatic official.
Private domestic workers must be employed in accordance with standards for wages and working conditions provided for under relevant Australian legislation and awards.
DFAT expects Heads of Mission to ensure that they and other officers who employ private domestic workers comply with the relevant regulations and conditions on an ongoing basis and look after the wellbeing of their staff. This is an individual responsibility.
Eligibility of sponsors
Heads of diplomatic missions, other members of the diplomatic staff, career heads of consular posts and career consular officers may apply to bring private domestic workers to Australia.
Administrative and technical staff and consular employees are not eligible for this privilege.
Numbers
In general, DFAT is prepared to approve up to three private domestic workers for heads of diplomatic missions, up to two for career heads of consular posts and one for other eligible officers. In exceptional circumstances, if an officer can demonstrate a need for additional staff which cannot be met in any other way, DFAT may consider approving more than the usual number of private domestic workers.
Eligibility of domestic staff
To be eligible for entry to Australia, a prospective private domestic worker must be over 18 years of age and not related to the sponsoring official or spouse.
Further information
Additional information on issues such as, application for entry, dependants of domestic staff, visas, visa renewals, duration of stay, transfers, employment contracts, undertakings, etc are contained in DFAT's Protocol Guidelines at Chapter 10. This is available at: