9. Locally engaged staff
Missions, posts and organisations are free to appoint as staff (other than career diplomatic or consular staff - see Sections 2.2 and 4.1.1) any persons who, because of their Australian citizenship or permanent resident status, are eligible to work in Australia. Missions and posts may not sponsor as locally engaged staff for entry to Australia on long term business or other types of temporary entry visas, persons from their own or third countries.
The completed form(s) should be submitted to the Department as soon as possible after any staff change. (Consular posts should send them to the Foreign Affairs and Trade office in the relevant State capital.)
Locally engaged staff are required to pay Australian income tax on their earnings.
Australia has adopted the principle - widely accepted at international law - of restricted State immunity, by which a foreign State is allowed immunity from the jurisdiction of Australian courts except as provided for by the Foreign States Immunities Act 1985 (the "FSI Act"). The FSI Act sets out a number of categories which are exceptions to the immunity of a foreign state. These exceptions include contracts of employment.
Under the FSI Act a foreign state is not immune in a proceeding concerning the employment of a person under a contract of employment that was made in Australia, or was to be performed partly or wholly within Australia. The FSI Act does not apply to cases where the employee was, at the time of the contract, a national habitual resident of the foreign State, and not a permanent resident of Australia. Nor does it apply to the employment of diplomatic or consular officers, administrative and technical officers, consular employees and service staff as defined by the VCDR and the VCCR. Therefore, the FSI Act only extends to Australian citizens and permanent residents, generally employed as locally engaged staff in a foreign mission.
On this basis, immunity would generally not cover proceedings which arise from the terms and conditions under which Australian citizens or permanent residents are employed in a foreign mission. Therefore, the employment of Australian citizens or residents by a foreign State in a diplomatic mission or consular post as locally engaged staff is subject to relevant State and federal legislation. 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.
Missions should be aware that Australia has high standards in matters of workplace practice. Information about wages and conditions of employment may be obtained from the Fair Work Ombudsman, which is an independent statutory agency created by the Fair Work Act 2009. The Fair Work Ombudsman offers employees and employers free information and advice on pay, conditions, and workplace rights and obligations under the Commonwealth workplace system. To check workplace rights and obligations, missions and staff may contact the Fair Work Ombudsman via the following:
- Fair Work Online: www.fairwork.gov.au
- Fair Work Infoline: 13 13 94 Monday to Friday, between 8.00am-6.00pm
- If language help is required, the Translating and Interpreting Service (TIS) may be contacted on 13 14 50.
Under Australian law employers are required to withhold tax from payments made to employees and pay this to the Australian Taxation Office (ATO). This obligation applies to payments made by missions to locally engaged staff. This tax is taken from the total payment made to the employee – it is not an additional charge.
To comply with your obligations as an employer of locally engaged staff under the PAYG withholding system, you need to:
- Register for withholding with the ATO
- Withhold tax calculated using the ATO’s tax tables, from payments made to locally engaged staff
- Report and pay withheld amounts to the ATO
- Provide annual payment summaries to each of your locally engaged staff no later than 14 July
- Send the ATO a report of the payments made and the amounts withheld for each of your locally engaged staff no later than 14 August.
For further information on PAYG withholding obligations refer to the following guides on the ATO website at www.ato.gov.au by typing the guide’s NAT number in the search field:
- Pay as you go withholding – What you need to know (NAT 5195) – this provides a basis guide
- PAYG withholding – What employers and businesses need to know to meet their PAYG withholding obligations (NAT 8075) – this provides detailed information.
If you require assistance you may contact the ATO:
- By phone: 1300 306 105 from 9.00 am to 5.00 pm weekdays (except public holidays) or
By email: Withholding@ato.gov.au
The Superannuation Guarantee Scheme is an integral part of the Australian Government's retirement income policy. The scheme requires all employers, including diplomatic or consular 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.
Under the superannuation guarantee law you must pay superannuation contributions for your eligible employees, at a minimum rate of 9% of their ordinary time earnings, so they can enjoy the benefits of super in their retirement. From 1 July 2013, the superannuation guarantee rate will increase to 9.25% and will continue to increase in small increments until it reaches 12% on 1 July 2019.
Ordinary time earnings are usually the amount the employee earns for their ordinary hours of work. It includes payments such as commissions, over-award payments and shift-loadings but does not include overtime payments.
To comply with your obligations in relation to Superannuation Guarantee for locally employed staff, you must pay the minimum required superannuation guarantee contributions into a complying super fund or retirement savings account. You have to pay superannuation guarantee contributions for each eligible employee on a quarterly basis. The payment cut-off dates are 28 days after the end of each quarter, i.e. 28 July, 28 October, 28 January and 28 April.
For further information on Superannuation Guarantee obligations refer to the following guide on the ATO website at www.ato.gov.au by typing the guide’s NAT number in the search field:
- Super – What employers need to know (NAT 71038) – this provides a basic guide
If you require assistance you may contact the ATO:
- By phone: 13 10 20 from 8.00 am to 6.00 pm weekdays (except public holidays) to speak to a tax officer or phone 1300 720 092 for copies of our publications.
- By mail at:
Australian Taxation Office
PO Box 3100
PENRITH NSW 2740
In Australia, employers are required to provide, as far as is reasonably practicable, a safe working environment for their workers. This includes identifying risks to the health or safety of workers and ensuring appropriate measures are put in place to manage those risks. Employers required to provide appropriate information, instruction, training and / or supervision relevant to the duties workers are undertaking, and to consult with workers when making decisions that may affect their health or safety. At present, each State and Territory has separate occupational health and safety laws. It is intended that these laws will be harmonised as of 1 January 2012. In the interim enquiries can be directed to authorities in each State and Territory. The Safe Work Australia website has a list of work health and safety authorities in each State and Territory.
Relevant authorities in the ACT are as follows:
- Office of Regulatory Services (ORS) WorkCover
- Website: www.workcover.act.gov.au
- Email: email@example.com
- Telephone: (02) 6207 3000 or (02) 6205 0200
- ACT Occupational Health and Safety Commissioner
- Asbestos ACT (Canberra Connect - ACT Government)
- Website: www.asbestos.act.gov.au
In Australia, the 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 and consular posts can sue their employer for compensation (in accordance with the FSI Act) in respect of work-related injury or illness. Courts frequently award very large payments.
Although details vary from State to State according to local legislation, in general employers in Australia are required by law to hold approved workers' compensation insurance policies. The Department strongly urges missions and posts to have appropriate insurance cover in respect of all locally engaged staff. Workers' compensation insurance is available from most major insurance companies.