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.
Notification of the engagement and discharge of members of the locally engaged staff may be made on forms D and F - Appendix 4 [ PDF ] and Appendix 9 [ PDF ].
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.
9.1 Application of local labour laws
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.
Further information can be sought from local legal service providers. Please note that the laws may differ slightly in each jurisdiction within Australia. Therefore, Missions must ensure that locally engaged staff are engaged in accordance with the conditions applicable in the relevant jurisdiction.
9.2 The Superannuation Guarantee Scheme
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.
The scheme is self-assessing. Employers who comply with the law are able to calculate the amount of superannuation they must contribute, and make all the necessary arrangements to meet their obligations, without being required to provide the Australian authorities with any information about their financial affairs.
The statutory level of contributions is calculated as a percentage (the charge percentage) of an employee's earnings (the employee's earnings base - generally salary or wage income plus allowances). The scheme provides for an orderly increase in the charge percentage.
To comply with the Superannuation Guarantee Scheme, 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 Australian Prudential Regulation Authority can advise whether a particular fund is a complying fund. Any queries concerning the Superannuation Guarantee Scheme should be addressed direct to the Australian Taxation Office, tel 131 020.
The charge percentage increased to 9 per cent on 1 July 2002 (from 8 per cent in financial years 2000/2001 and 2001/2002).
9.3 Occupational Health and Safety
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: workcover@act.gov.au
- Telephone: (02) 6207 3000 or (02) 6205 0200
- ACT Occupational Health and Safety Commissioner
- Website: www.worksafety.act.gov.au
- Email: worksafety@act.gov.au
- Telephone: (02) 6205 0333
- Asbestos ACT (Canberra Connect - ACT Government)
- Website: www.asbestos.act.gov.au
- Telephone: 13 22 81
9.4 Workers' compensation
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.