10. Private domestic employees
Missions and posts and their staff may employ any number of Australian nationals or permanent residents as domestic staff. Individuals, agencies and contractors offering a range of household services such as cleaning, ironing, gardening and maintenance may be found through local newspapers and telephone directories. Caterers and wait staff for receptions and other functions and suitably qualified drivers may be hired locally on an ad hoc or ongoing basis. Accredited child care providers are also available to meet full time, part time or occasional childcare needs.
Please note that general household staff or drivers who are nationals of, and employed by, the sending State's mission may be nominated as members of the service staff of a mission or post. Service staff must be notified according to the processes outlined in Chapter 4. Their visa conditions are different to those of private domestic worker.
Household staff employed directly by eligible foreign officials may be brought to Australia under diplomatic or consular privilege subject to certain conditions being satisfied. Grant of entry to Australia for such private domestic employees is contingent on Protocol Branch agreement and the fulfilment of a range of immigration requirements and other conditions by both the employer and employee (see Section 10.5 below). For example, an approved private domestic employee may not work outside the household of the sponsoring diplomatic or consular official. The Department encourages employers to ensure their domestic staff have a basic understanding of English, or at least, the ability to communicate with their employer in another language.
Foreign officials who are permitted to bring private domestic employees to Australia must enter into an employment contract that is in accordance with Australian employment laws and incorporates local standards for wages and employment conditions. Please note that each state and territory has its own legislation and awards that need to be complied with in addition to any Federal (or Commonwealth) laws. Please note that each state and territory has its own legislation and awards that need to be complied with in addition to any Federal (or Commonwealth) laws. The minimum standards of wages and employment conditions are provided for under Australian law (the Fair Work Act 2009). Some employment categories will also have conditions determined by a modern award. Employees should be paid in money and at least monthly. In limited circumstances, deductions can be made from an employee’s wage to provide a benefit to an employee but these must be set out in the employee’s pay slip. Employer and employee declarations are required as part of the domestic worker visa application to ensure that both parties have understood and abided by these requirements. Fair Work Ombudsman is able to provide advice about wages and workplace conditions (Fair Work Ombudsman Infoline on 131 394 or website:http:www.fairwork.gov.au or for inquiries outside Australia on +61 2 6141 1387).
10.1 Eligibility of employers to employ private domestic employees
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 employees to Australia i.e. officers with full diplomatic accreditation. Service staff, Administrative and Technical staff and consular employees are not eligible for this privilege.
In general, the Department is prepared to approve up to three private domestic employees for heads of diplomatic missions, up to two for career heads of consular posts and one for other eligible officials. Only in exceptional circumstances, where an officer can demonstrate a need for additional staff that cannot be met in any other way, will the Department consider approving more than the usual number of private domestic employees. Missions should submit a written request which will be considered by the Chief of Protocol. Please note that domestic workers must depart Australia on or before their employer completes their posting in Australia and their time of employment in Australia will not be extended beyond 10 years.
Foreign officials may employ private employees from their own or another country. It is the responsibility of missions to establish that the private domestic employee being nominated is qualified to perform the duties which they have been employed to do. Foreign nationals employed as private domestic workers should be from countries that have substantive diplomatic and consular representation in Australia. It is expected that a domestic worker’s level of English should be sufficient allow them to operate independently in Australia. Prospective employees must be over 18 years of age and must not be related to the employer or employer's spouse.
A domestic worker should travel to Australia on an ordinary passport. In line with the Vienna Convention on Diplomatic Relations, foreign domestic workers are not to be employees of the ‘sending State’ and, therefore, must enter Australia on ordinary passports and not ‘official’ or ‘diplomatic’ passports.
10.2 Dependents of domestic staff
Australian migration regulations do not permit dependents of private domestic employees who come to Australia under the subclass 403 visa program to accompany them unless they are approved as private domestic employees in their own right.
10.3 DFAT approval and visa application
Formal requests from the employer’s foreign ministry to bring a private domestic employee to Australia should be sent to the nearest Australian diplomatic mission or consular post. The Note should advise the name and position held in the mission of the employer, as well as the prospective employee's details, including name, date and place of birth, nationality and current place of residence. Protocol Branch would prefer a photocopy of the applicant’s passport biographical details page is attached to the Note.
The Note should also confirm that the employer (or the employer’s spouse) and the employee are not related. Protocol Branch will provide confirmation to the relevant mission, post or foreign ministry whether the employer is eligible to bring a private domestic worker to Australia. It will also inform the Department of Immigration and Border Protection (DIBP) of the employer’s eligibility.
Once Protocol Branch has confirmed the eligibility of the employer, the domestic worker should lodge their visa application with DIBP. Please note that immigration is responsible for processing and granting the visa application.
Applicants will need to complete an Application for Temporary Work (International Relations) visa (Immigration Form 1403) and lodge it together with the visa processing fee. The visa application can be lodged at an Australian diplomatic mission or consular post. Please note if the applicant holds a valid 403 visa they will need to lodge their visa application at DIBP’s office in the ACT or a regional office.
DIBP will require a number of conditions to be satisfied before a visa is granted. The applicant will be required to obtain a medical clearance (including a chest x-ray) and complete a police character check before a visa can be approved. Generally the visa process takes six weeks but this can vary depending on the quality of the application. Comprehensive information about the visa application process is available from DIBP.
10.4 The employment agreement
It’s a requirement that the employer and the employee must enter into an employment contract that accords with the standards of wages and employment conditions provided for under Australian laws. As part of the visa application both parties are required to sign employer and employee declarations confirming that they have made an employment contract. As noted above, Fair Work Ombudsman can provide advice about Australian wages and employment conditions.
The employment agreement should be in English, or, if it is drafted in another language, an English translation should be included. The contract should include the employee's basic conditions of employment. Missions are requested to ensure that the employee has a copy of the employment contract and understands its content. While the department regards disputes between the employer and the employee as a private legal matter, employment disputes or lack of good faith on the part of the employer in implementing the contract may affect subsequent requests to employ a domestic worker.
Please note that providing false or misleading information (for example, where an employer does not meet Australian standards for wages and conditions as affirmed in the Employer’s Declaration submitted with the domestic worker’s visa application), either knowingly or otherwise, is likely to lead to refusal of visa application.. If information or documents are found to be fraudulent or misleading after the domestic worker’s visa has been granted, the visa may be cancelled. If the diplomatic or consular employer is found to have provided fraudulent or misleading information, the Department reserves the right to take appropriate action. This could include a general ban on approval for future domestic workers across the mission, action against the individual officer under Article 9 of the Vienna Convention on Diplomatic Relations 1963 (VCDR) or Article 23 of the Vienna Convention on Consular Relations 1963 (VCCR), or referral to Australian law enforcement agencies.
10.5 Terms of the work arrangement
The subclass 403 visa (Temporary Work (International Relations) visa – Domestic Worker (Diplomatic or Consular) stream) entitles a foreign domestic worker to be employed full time and exclusively in the household of the eligible diplomatic/consular employer. Subclass 403 visa holders must:
- undertakes work only as a domestic worker in the official's private household;
- does not transfer to another diplomatic or consular employer;
- maintains his/her health insurance;
- maintains valid travel documents, including visas;
- leaves Australia at the conclusion of his/her employment or when the diplomatic/consular employer leaves, whichever comes first; and
- does not remain in Australia for more than 10 years.
10.6 Visa issue
If the applicant meets all the visa requirements, DIBP will grant an Australian temporary work visa (subclass 403) for travel to Australia. The visa will usually allow multiple entries and will match the validity of the employer's posting.
Because DIBP issue visas electronically it is important to keep the Visa Grant Notice showing the details of the visa, including the expiry date. Clients can request that they place a hard-copy visa label in their passport for a fee.
Any queries relating to private domestic visa applications lodged in Australia should be directed to the Department of Immigration and Border Protection (Tel. 02-6195.6114) or e-mail email@example.com. Enquires about visa applications lodged overseas should be directed to the Immigration office of the relevant Australian mission. Please provide the visa application reference number.
10.7 Arrival and departure procedures
Missions and posts are required under the VCDR abd VCCR to notify Protocol Branch or the relevant state or territory office of the arrival od a domestic worker by completing an Arrival Form (appendix 3 of the Protocol Guidelines). The Notification of Arrival of Private Domestic Staff form should be completed with a copy of the Visa Grant Notice attached. The form should be signed by the employee and the employer. Private domestic employees are encouraged to provide details of their next of kin, and to register with their country's diplomatic or consular mission in Australia in case they require consular assistance.
Private domestic employees are required to leave Australia when they cease to be employed or at the conclusion of the employer's posting, whichever is earlier (See Section 10.5).
If the employment contract is terminated or if the employment arrangement breaks down, it is the employer's responsibility to inform Protocol Branch or the relevant DFAT state or territory office of the situation without delay. This is particularly important if the employee leaves the employer's household without notice or ceases work for the employer but does not leave Australia. In these circumstances, the employer must immediately advise the Department to allow necessary action to be taken.
If the employee leaves the employer's household without notice and there is no further contact between the employer and employee, it is the responsibility of the employer to attend a police station and file a missing person report.
A Notification of Completion of Employment / Departure of Private Domestic Employee form (Form G at Appendix 7 ) must be completed and sent to Protocol Branch or a DFAT state or territory office when the private domestic employee departs. A departure form is required by Protocol Branch no matter what the circumstances of the domestic workers departure are. In exceptional cases where the Department approves the transfer of a domestic worker to an incoming Head of Mission-designate, departure and arrival forms should be completed in respect of the domestic’s completion of duty with the current HOM and commencement of duty with the incoming HOM.
Please note: The Department expects the employer to cover the cost of the domestic workers airfare to and from Australia as part of the contractual employment agreement. In addition, if the domestic worker departs before the completion of employer’s posting, the employer remains responsible for the return airfare. It is not the responsibility of the domestic employee to pay their own airfares nor have the cost of the airfare deducted from their wages. Also the employer is responsible for covering the cost of the domestic worker’s health insurance while they are in Australia which is a requirement of the subclass 403 visa applications.
Domestic workers should be paid their full wage up front and auditable records kept of all payments to domestic workers. Payments should preferably be electronic and through a bank account. There should be no automatic deductions for board or other ancilliary costs.
A mission must not withhold the domestic worker’s passport. Domestic workers must retain their own passports.
10.8 Replacement visas for domestics in Australia holding valid visas
Should a diplomatic officer be granted an extension of his/her posting in Australia and wish to retain a domestic employee, the mission must seek the Department's approval before lodging a new domestic worker visa application. It is essential that a private domestic employee holds a valid visa. If it expires, the holder will be regarded as an unlawful non-citizen and may be detained or required to leave Australia at the employer's cost.
A subclass 403 visa holder may apply for a new visa to continue working in the household of the diplomatic/consular employer. Please note that a domestic employee cannot apply in Australia if they do not hold a valid subclass 403 [domestic worker] visa.
A new application will entail a full medical check, new police checks and employer and employee declarations. The employment declarations are statements that an employment contract meeting Australian standards of wages and conditions, has been agreed/understood by both parties. To provide misleading information may result in a domestic worker's visa not being granted or ceased.
DIBP may require applicants to attend an interview. The process should be commenced well in advance of the expiry date of the domestic worker’s current visa. Following is a summary of the steps that should be followed to obtain new visas:
- six weeks before the expiry date of the private domestic employee's visa, a diplomatic note advising of the intention to seek a new visa should be sent to Protocol Branch or the relevant DFAT state or territory office
- once Protocol Branch has confirmed the eligibility of the employer, the employee can lodge their subclass 403 visa application at Immigration’s Braddon office in the ACT or a regional office:
Department of Immigration and Border Protection
ACT and Regions Office
GPO Box 717
Canberra ACT 2601
3 Lonsdale Street
Braddon ACT 2612
Fax: 02 6195 6104
Phone: 02 6195 6114
If all relevant visa criteria are met, Immigration can grant a new visa for a period consistent with the length of the posting of the current employer.
Please note that Immigration can send prompt advice that the visa has been granted if the visa applicant provides their email address with the visa application. Once the domestic employee’s visa has been extended, it is the responsibility of the employer to inform Protocol Branch (or the relevant DFAT State Office) so that the domestic employee’s details are updated and a new identity card issued to the domestic employee.
Consular employers should contact the relevant DFAT state or territory office for guidance and assistance with the provision of new visas for private domestic employees.
10.9 Transfers and extensions
Because the household of the head of a diplomatic mission has particular needs, a Head of Mission may seek prior approval from the Department for their private domestic employees to remain in their household after their departure to work for their successor.A formal request for transfer should be submitted to Protocol Branch in advance of the Head of Mission's departure. If the transfer is approved by the Department, a new visa application should be lodged by the domestic worker with Immigration’s Braddon office in the ACT or a regional office.