-m - dfat.gov.au · copy issued under the cth foi act 1982 note no. 10412011 tf091241 the nsw state...

20
JS22(1 )(a)(ii)1 From: Sent: To: Cc: Monda 31 October 2011 3:48 PM S22 1 (a)(ii S22 1 a ii Plunkett, Anne; lanyon, Karen;IS22(1 )(a)(ii)[llanyon, Karen Subject: RE: FINAL NOTE: Fair Work Australia Notice to Produce Records or Documents - Consulate General of lebanon [SEC=IN-CONFIDENCE:lEGAll hptrimdataset: hptrimfileref: TF. TF09/241 Thank you for your helpful advice. Attached is a copy of the final TPN sent to the Consulate-General. Many thanks 1822(1 )(aD(ii)1 -m Lebanon_TPN 10'1 lOU.pdf IS22(1 )(a)(ii)[ NSW State Office Department of Foreign Affairs and Trade (DFAn IS22(1 )(a)(ii)1 Department of Foreign Affairs and Trade website: www.dfatgov.au Australia Candidate for the United Nations Security Council 2013 - 2014 website: http://austTalla-unsc.gov.au! FrOimfS22(1 )(a)(ii)1 I To: .. Cc: -.. Plunkett, Anne 2011 3:38 PM SUDject. . l\l NOTE: Fair Work Australia Notice of Ustlng - Consulate General of lebanon [SEC=IN- CONRDENCE:LEGAL] Thanks for forwarding the TPN. We recommend you go back to the Lebanese Consulate General (LCG) with a simple TPN. The TPN could say:. 1 DFAT - DECLASSIFIED Date: February 2012 1 Copy issued under the Cth FOI Act 1982 ---------_._----_. -- ----_._--_._------

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Page 1: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

JS22(1 )(a)(ii)1

From: 1~)@'lQ!~ Sent: To: Cc:

Monda 31 October 2011 3:48 PM S22 1 (a)(ii S22 1 a ii Plunkett, Anne; lanyon, Karen;IS22(1 )(a)(ii)[llanyon, Karen

Subject: RE: FINAL NOTE: Fair Work Australia Notice to Produce Records or Documents -Consulate General of lebanon [SEC=IN-CONFIDENCE:lEGAll

hptrimdataset: hptrimfileref:

TF. TF09/241

Thank you for your helpful advice. Attached is a copy of the final TPN sent to the Consulate-General.

Many thanks 1822(1 )(aD(ii)1

-m Lebanon_TPN 10'1

lOU.pdf

IS22(1 )(a)(ii)[

NSW State Office Department of Foreign Affairs and Trade (DFAn

IS22(1 )(a)(ii)1

Department of Foreign Affairs and Trade website: www.dfatgov.au Australia Candidate for the United Nations Security Council 2013 - 2014 website: http://austTalla-unsc.gov.au!

FrOimfS22(1 )(a)(ii)1 I To: .. Cc: -.. Plunkett, Anne seill¥i~iI111 ~ctober 2011 3:38 PM

SUDject. . l\l NOTE: Fair Work Australia Notice of Ustlng - Consulate General of lebanon [SEC=IN-CONRDENCE:LEGAL]

Thanks for forwarding the TPN.

We recommend you go back to the Lebanese Consulate General (LCG) with a simple TPN.

The TPN could say:.

1 DFAT - DECLASSIFIED Date: February 2012

1

Copy issued under the Cth FOI Act 1982

---------_._----_. -- ----_._--_._------

Page 2: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

........ and has the honour to refer to the Consulate-General's -Note Ref: 72/b.c/2011 dated 21 October 2011 regardin!2 the Notice to Produce Records or Documents issued to the Consulate-General by the Fair Work Ombudsman.

The Office recommends that the Consulate-General communicate directly with the Fair Work Ombudsman regarding this matter.

The Office further recommends that the Consulate-General, should it not already have done so, engage local lawyers to advise on the application of Australian law to the matter.

Regards

r22(1~ I L-________________ ~

Diplomatic and Consular Accreditation Section Protocol Branch Department of Foreign Affirirs and Trade

Fnom:~2(1~a)(i~ I Sent: ~ neS ay,: October 2011 6:52 PM

~~: ~~_~!I I _ _ suJject: ~!\.L NOTE: Fair Work Australia Notice of Listing· Consulate General of lebanon [SEC=IN­CONFIDENCE:LEGAL]

one for you.

IS22f1 )(¥)(ii)1

2

General of lebanon [SEC=IN-

DFA~T~-~D~E~C~L~A~S~S~IF~IE~D~--------'

Date: February 2012 Co y issued under the Cth FOI Act 1982

----------.-.--- ----------------------

---- .• _------------

Page 3: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

We've received the attached TPN (Ref: 72/b.c/2011 dated 21 Oct) from the Lebanese Consulate-General regarding a3 Notice issued by the Fair Work Ombudsman To Produce Records or Documents in the case ofls47FffiF I

Grateful for your advice on an appropriate reply to the Consulate's TPN_

~thanks SL1 )(fu)(ii)1

« File: Lebanon Consulate General TPN.pdf»

IS22(1 )(a)(ii)1 1

NSW State Office Departm.ent of Foreign Affairs and Trade (DFAT)

Department of Foreign Affairs and Trade website: www.dfat.gov.au Australia Candidate for the United NaUOlIs Security Council 2013 - 2014 website: httD:llaustralla-unsc.gov.aul

3

-----_._-....•.• _ .. _--------_ .. _ ... __ ..

DFAT - DECLASSIFIED Date: February 2012 Copy issued under the Cth FOI Act 1982

------_ .... _--------- ----- - --_. ----

Page 4: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

4

----- ----_._-_._--

---------- -------

DFAT - DECLASSIFIED Date: February 2012 Copy issued under the Cth F 0 I Act 1982

Page 5: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

822(1 )(a)(ii)i

~,-~" ,~~

Date: February 2012 5

Copy issued under the Cth FOI Act 198~

---.-.----------

--------------------- --.-----.

Page 6: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

6

6 Date: February 2012 Copy issued underthe Cth FOI Act 1982

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Page 7: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

7

DFAT - DECLASSIFIED I '"'_ ....... _" . "nA"

. , 1 .:r Copy issued under the Cth FOI Act 19821

-.-....... -.... --

- .•. -----.-~.---

Page 8: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

S22(1 )(a)(ii)1

8

- ._-------_ .... -- "-_ ... --- ....• _-_.---- '-~-'-' _." .. -- .. _--

-- --------------- ----

DFAT - DECLASSIFIED Date: February 2012

8

Copy issued under the Cth FOI Act 1982

--- -------------

Page 9: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

Note No. 10412011 TF091241

The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

compliments to the Consulate-General of Lebanon and has the honour to refer to the

Consulate-General's Note Ref: 721b.c!2011 dated 21 October 2011, regarding the Notice to

Produce Records or Documents issued to the Consulate-Genera! by the Fair Work

Ombudsman.

The NSW State Office of the Department of Foreign Affairs and Trade recommends that the

·Consulate-General communicate directly with the Fair Work Ombudsman regarding this

matter.

The NSW State Office of the Department of Foreign Affairs and Trade further recommends

that the Consulate-General, should it not already have done so, engage local lawyers to advise

on the application of Australian law to the matter.

The NSW State Office of the Department of Foreign Affairs and Trade presents its

compliments to the Consulate-General of Lebanon the assurances of its higl).est consideration.

DFAT - DECLASSIFIED Date: February 2012

9

Copy issued under the Cth FOI Act 1982

Page 10: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

- DECLASSIFIED February 2012 issued under the Cth FOI Act 1

Page 11: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

4. OCT. 2011 12:56 FWO ELIZABETH 8T 61 2a2936999

FairWorl< OMBUDSMAN

Fax Cover

To: Tha Proper Officer

Organisation! Consulate-General of Lebanon

Fax: CO2) 9327 8722

From:

Fax:

Date:

Re:

15 .22(1 )(a)(ii)] I .

04 October 2011

Notice to Produce Records or Documents

Message

Phone: (02) 9327 8400

Phone: 15 .22(1 )(a)(ii)] 1

Pages: 4 (including this one)

P.

J' ._.

Dear the Proper Officer

1 The Fair rKOm dsman has commenced an Investlgalion 'into the employment orO

'r--___ ...,!!,b'l:,the Gonsulate-General of lebanon foVowi!lg a complaint received from ,--_~~:==:~Into alleged outstsndilig employment entiUements.

Please find attached II Notice to Produce Records or Documents in relation to this investigation.

Please .note that a (eSponse to this Notice is required by 5.0Opm on 21 oCtObeF 2011.

aIr 0 nspector .Falr Work Ombudsman

Privacy and canltd.nti;I~ na1ice The infb..,atlon conIaftd in l!jsfacolmiJo m .... g.I.lnlendod 01111 forth. nomll\olld recipiOnL lfyou M net !hill: peCSDrl pli receiveG lhis (n error, pfease nolly the uncfer as soon as possible.

Fair Work Infollne: 13 13 94

---------_. ---'----

www.faiIWork.gov.au ABN: 43 984188 232

DFAT - DECLASSIFIED Date: February 2012 Copy issued under the Cth FOI Act 1982

---- ---_._--_.

11

Page 12: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

4.0CT.2011·'2:56·· -FWO £LIZABETH ST 61 282936999

Fair Work AUstralian Government 0 M 6 U DS MAN

Ref.erence: MAT-0001-4532

Date Notice Issued: 04 October 2011

NOTICE TO PRODUCE RECORDS OR DOCUMENTS

Pursuant to Section 712' of the Fair Work Act 2009

To: The Proper Officer, Consulate-General of Lebanon

.of: Suite 30B, Level 3. Edgecllff Cflntre,

203 - 233 NflW Soutb Head Road EDGECLIFF NSW 2027

NO. 668 P. 2

GPO Box 9887 SYDNEY 2001

Served !'y facsimile to: (O2) 9327 B722

Is22(1 )(a)(ii)1 1,1 1 a Fair Work Inspector appointed under section 700 of the Fair Worle Act 2009 (the Act). requIre you, the Consulate-General of Lebanon, to produce to me the fonowlng records or documents; .

1. All records or do nls from 01 January 2005 to 30 March 2011 relating to the employment of by the Consulate-General of Lebanon. including but not nmlted to: Is F(1)1 S47 1

(a) (X)pies of all ~ontraals of employment, lettr'-"--'!L-""1"-'-'~~ . documents relating 10 the appointment of ;;;;;;;::----...-1 Decision Number 112005, dated 07 January ;2005;

b C jes of records ouUinil1g the positions and classifiC<lllon~ held by 0 S47 hile employed by the Consulate-General of Lebanon. ~=--.

incfUdlng b nDt Imlted to documents relating to whetheJi HS4-1F (1 )1 IS47F(1 jl I was engaged as a '(X)nsular employee' within the mea[ling of the

COf/$Ul8r Privileges and Immunm at-19 (Cth); S4b 1

(c) • copies of records outUnlng uties ami responsibilities, including but not ffmiled to position d criooonl

(d) copies of emple S . S In~~e nature of employment or engageinent of including but not limited to detaUs of the status ofl lemployment. for example, full time, part time, permanent, temflmvWcasual, fixed term contract; 1 S4?F; 1 .

(e) copies of all time rece s in relation to (inch.fI;flllg but not linited \0 lime reoords which indicate sny ove me ours worked):

(f) oopies of pay reCOIds and pay slips kElPt in relationtol IIS47F(1 )1 including but not limited to the rate of pay or remuneration, g~ and net

Fair Work lnfoline: 131~ 94 www.faiIWorte.gov.au ABN: ~3 8&1188 Z32

DFAT· DECLASSIFIED Date: February 2012 Copy issued under the Cth FOI Act 1982

12

-_ .. _-- .----------------- ------_ .. _--_._._-----_.- .. __ .. _-------_._._-_._-

Page 13: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

4. OCT. 2011 12:57 -FWO ELIZABETH 8T 61 282936999 NO. 668 P. 3

. 13 .. amounts paid,. and any deductions made from the gross amount paid (eg.

(g)

pay slips, payroll print outs): . _~

I COPr:;;;t,ents containing detans of any cash payments mede to L.::r . Including but not limited to any bonus payments; . - . .

cop es 0 cuments containing details of any deductions made from payments made tal _____ ~ng the amount(s) deducted . and the reason for the deouCliOT\; ~!'i1lJ

(h)

(l) copies of annual leave records (including annual I vaaccru eave la F 1 .

S47 . copres personal I carer's leave records (e.g. sick leave), including details 0 personal I carer's leave accrued and personal I

G)

carer's leave taken; j§.#< 1 )1

copies of documents relating to I I termination of employment; r::-==:-:1

IspEy~ (k)

0> ~. ~ies of documents containing details of payments made wi i§:4?f11:1: Ion termination of her employment;

(m) co ies of any Tax File NUmber Declaration Forms signed by Ir;;:S~47:;;f=-:(-:C1 )eri -'1 S47F(1) .

You are requiner;l to produce the above records andtor. documents at Level 5, 255 Elizabeth Street SYDNEY NSW 2000 by 5.00 pm on 21 October 2011.

The productlon of the above records andlor documents is required for the purpose of determining whether there have been contraventton(s) of the foRowing legislation or industria! instruments:

• Determining whether the notional agreement preserving the terms of the Clerical alld Administrative Employeell (State) Award has been complied with (for the period up to 1 July 2009 ):

• Determining whether Part 7 of the Workplace Relations Act 1996 (Clh) (the Australian Fair Pay and Conditions Standard) (as continued in operation by the Fair WO/1( (Transitional Provisions and Consequential Amf/.ndmenrs Act) 2009 (Cth) (Transitional Act» for the periOd up to 31 December 2009) has been complied wItll; . .

• Determining whether the Workplace Relations RegulatiOns 2005 (Cth) has been complied with, specifically;

• Chapter 2, Part 19, (Records relating to employ~ and pay slips) has . been complied with (Under Part 3 of Schedule 18 to the Transitional Act.. a Fair Work Inspector is empowered to seek compHance with these provisions in relation to conduct that occurred before 1 july 2009). .

• Determining whether the award-based transitional instrument preserving the terms of the Clerical aJld Administrative Employees (Slate) Awanfhas been compiled with (for the period from 1 July 2009 to 31 December 2009 );

• Determining whether the Fair Worn Act 2009 (Cth) has been compiled with, in particular section 44 (compHance with the National EmplOyment Standards).

, .. Fair Work lmoline: 131394 • www.fairwork.aov.Bu /o!III: 43 884188 232

------------~~-----

DFAT - DECLASSIFIED Date: February 2012 Copy issued under the Cth F 0 I Act 1982

Page 14: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

4. OCT. 2011 12:57 fWO ELIZABETH ST 61 262936999 NO. 668 P. 4

section 535 (employer obligations In relation to employee records) and section 536 (employer obligations \n relation to pay slips);

• Determining whether the Clerks Private Sector Award 2010 has been or \s being compliedwlth (post 1 January 2010).

this Notice seeks the production of original records or documents. or if the Original Is not available. a copy or duplicate ofthe.record or document

In this Notice the word "doClumsnt" includes. but Is not limited to:

(a) any paper or other material 011 which there is writing. marks. ligures. symbols or perfor.atlons having a meaning for persons qualified to interpret them:

(b) any article or material from which sounds, imagesorwrltlngs are capable of being reproduced;

(c) any leiter. facsimile, emaU, memorandum. file note. note book. journal, briefing note. rvcommendation, advice, report, agenda, minutes, form, contract. witness statement, titaiutory declaration, affidavit, submission, iedger, invoice, account, accounting record, cheque. cheque butt, computer print o.ut. map. plan, drawing,

. photograph, audio or video tape, analogue or digital sound Dr video recording or computer disk.

In this Notice the word "record" Includes Information stored or recorded by means of a computer. Production of a record requires that you reproduce the information in a form capable of being undemood by a Fair Work Inspector.

Failure to comply wlfJl thIs Notlce, without reasonable excuse, is a contravention of subsection 712(3) of the Act and may attract a maximum penalty of $33,000 in respect of a body corporllte or $6,600 In respect of an Individual .

a r . 0 nspector Fair Worle Ombudsman

..

Fair Work Infollne: 13 13 94 www.fairw0r!s.gov.au .

DFAT - DECLASSIFIED . Date: February 2012

14

eopy·jssued underthe·Cth FOI- Act 1982 ·· ··

------.. -------_ ... - .. --

. . _---_ .. _. -._- -------------- ------ .. _-- - - _._-- --- - ..• _-_ ..... -_. ----- -

Page 15: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

U, \ILl. LV' I IJ.J"T IIlV J..L,J.~IlUI..III VI VI LUL~..JUJJJ <.,. FAIRWORK OMBUDSMAN

FairWorl< 11 .... "'JJ .. . PRB (J}) pL/

~.~

AUstraIiIm Govenunent OM BUD 5 MAN ~'M~7jq)fl . Gc.<_/ Dl-8 /11-0 >c So 1(:

GPO Box 9887 ,-z

SYDNEY 2001 'k b iii:;: . '" 10 ,·()ST

Reference: MAT-0001-4532 I, . L....,I- Jl' . 0", 1.........- ~. I 'If

Date NotIce Issued: 06 September 2011 ~.u~ '1

To:

Of;

~ ~,

NonCE TO PRODuce RECORDS OR DOCUMENTS S47F(1) ~... -hAl..

Pursuant to Section 712 of the Fair Work Act 2009

The Proper Officer, Department of Foreign Affairs and Trade

R.G. Casey Building John Mcewen Crescent Barton ACT 0221 Australia

t. ' -:r.-....v-<~ ~ G GIL ,P1..JJ. J I l. 't) 131~11l. \1,.,t) v.4l ~~

:t..Pt.,n>_ .

$erv.d by facsimile to: (02) 6261 2144

1522(1 )(a)(iill . . .. 1,1 a Fair Work Inspector appointed under section 700 of the FaIr Waf/( Act 2009 (the Act), require you, the Proper Officer of the Department of Foreign Affairs and Trade, to produce to me complete and legible copies of the following records or documents:

1. Copies of ali records or documents held by the Department of Forei n Affairs and Trade tl')at are spe~ifically in relation to the engagement of S47F(1)

IS4'jfFftll I by the Lebanese Consulate In sydney.

You are required to produce the above records a.nd/or documents at Level 5, 255 errzabeth Street SYDNEY NSW 2000 by 5.00pm on 21 September 2011.

111e pt'oduction of the abOVe records and/or documents ts required for the purpose of determining whether there have been contravention(s) of the following legislati9n or Industrial instruments:

• Determining whether the notional agreement preserving the terms of the Clerical and Administrative Employees (State) Award has been complied with (for the period up to 1 July 2009 );

• Determining whether the WorI<place Relations Regulations 2006 (Cth}·has been compned with, speCifically:

• Chapter 2, Part 19, (Records relatin,g to employees and pay slips) has been complied with (Under Part 3 of Schedule 18 to the Transitional Ac~ a Fair Work Inspector Is empowered to seek compliance with these provisions in relation to conduct that occurred before 1 July 2009);

• Determining whether Part 7 of the WOrkplace Relations Act 1996 (Cth) (the Australian Fair Pay and Conditions Standard) (as continued in operation

. by the Fair Work (Transitional Provisions and Consequential Amendments

FairWorklnfoline: 1313 94 www.fairwo;;i;:";W::au ASN:A3.8B4 -:t.,,;;;,;. lurK I - uECLASSIFIED Date: February 2012 . Copy issued under the Cth FOI Act. 1982 .

_ . __ ._---~----. ----- - -.- .-.-.. -~ ~--

---.~ ..... - ... - ..• ---.

Page 16: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

U • .;)[r. lU'1 IJ : J~ rnv (LILNO[ln ~I 01 lOL'JO",

FA! RWORK OMBUDSMAN ' ltv. OJ) r. J

Act) 2009 (Clh) (Transitional Act» for the period up to 31 December 2009) has been complied with;

• Determining whether the award based transitional instrument preserving the terms of the Clerical and AdminlstratNe Employees (State) Award has been complied with (for the period from 1 July 2009 to 31 December 2009 );

• Determining whether the Fair Work Act 2009 (Cth) has been complied with, in particular sec1lon 44 (compliance with the National Employment standards) and section 536 (Employer obligations In relation to pay slips);

• Determining whether the Clerks Private Sector Award 2010 has been or is being complied with (post 01 January 2010).

This Notice seeks the production Qf original records or doc.uments, or If the original is not available, a copy or duplicate of the record or document

. In this Notice the word 'dOClJme[lf includes, but Is not limited to:

(a) any paper or other material on which there is writing, marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; .

(b) any article or material from which sounds, images or writings are capable of being reproduced;

(e) any letter, facsimile, email.memorandum.fifenote.notebook.joumal.brieflng note, recommendation, advice, report, agen4a, minutes, form, contract, witness statement, statutory declaration, affidavit, submission, ledger; invoice, account, accounting record, cheque, cheque butt, computer print out, map, 'plan, drawing, photograph, audio or video tape, analogue or digital sound or video recording or computer disK.

In this Notice the word "record" includes information stored or recorded by means of a computer. ProductIon of. a record requires that you reproduce the information in a form capable of being understood by a Fair Work Inspector.

Failure to comply with this Notice, without reasonable excuse, is a contravention of subsection 712(3) of the Act and may attract a maxjmum penalty of $33,000 in respect of a body corporate or $6,600 in respect of an individual.

'r"""""--"""",-"re"",,ul"-1re further Information or wIsh to discuss this NQtice, please contact me ~:=OCiT'"""..,d or by eman atI5.22(1 )(a)(ii)l 1 Please quote the reference

r--=-:::=~=-;-:'--'- =-.:; 1-4532.

Fair Work Inspector .' Fair Work Ombudsman

Fair Work Infoli!le: 1313 94 www.fai!wO~ECLASSI~I13i1ll4188-232 Date: February 2012 COQY issued under the Cth FOI Act 198~

-- - - -- -_._-_ .. _._.------ -

':';~',:'.~~

16

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Page 17: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

22 June 2011

Is.22(1 )(a)(ii)1 l Fair Work Inspector Fair Work Ombudsman GPO Bpx9887 SYDNEY NSW 2001

Dearis.22(1 )(a) \ii)1

Australian Government

Department ofForelgn Affairs and Trade

File Number: 11110965

Consulate-General of Lebanon in Sydney

I refer to your letter of24 May 2011 outlining a number of queries regarding the employment oflocally engaged staff at Consulate-General of Lebanon in Sydney.

The answers to your questions are as follows:

1. Is DFATable to request injormationjrom the Consulate which would return a list of names of ali locally engaged employees since 2006 (including commencement and termination dates)?

DFAT may ask foreign diplomatic missions and consular posts in Australia as a matter of policy to provide names oflocally engaged sta£!; including commencement and termination dates, but DFAT cannot compel missions or posts to comply. Article 24 ofthe Vienna Convention on Consular Relations 1963 requires consular posts to notify the foreign ministry of the receiving state of the arrival and departure of consular staff, but this does not apply to locally engaged employees.

DFAT's Protocol Guidelines, which are accessible on the DFAT website, provide forms on which notification of the engagement and discharge oflocal\y engaged staff may be made. However DFAT does not have comprehensive information on locally engaged staff movements at the Consulate-General since 2006.

2. gso, is DFATwilling to make such a request of the Consulate?

As stated above, we are not aware of a legal basis for DFAT to compel missions to provide information on locally engaged employees. The most we can do is seek the information.

DFAT - DECLASSIFIED R G Casey Building. Barton ACT 0221 www-dfutgov.!rtatif:"~P1-2?ft12111

17

Copy issued under the Cth F 0 I Act 1982

- ------------ ---

Page 18: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

DFAT does not as a practice seek information on locally engaged employees from a single mission. I I S22(1 )(a)(ii)1

3. gso, is DFATwillingto provide that list to the FWO?

In order to consider how to respond to this question, we would be grateful if the FWO would clarify on what legal basis it is asking fur this information. We would need to take into account privacy considerations. We are not of aware ofa 'legal' basis fur DFAT to ask for this infurmation on behalf of the FWO.

4. To DFAT's knowledge what is the entity name of the Consulate?

We understand that a consulate has no separate legal personality from the State. The legal entity is the State of Lebanon.

5. Is there a Protocol that deals with the service of legal documents, including Notices to Produce (such as a Notice to Produce pursuant to section 712 of the Fair WorkAct 2009), on foreign missions?

The Attomey-General's Department has advised that the Fair Work Ombudsman does not need to use the process in the Foreign.States Immunities Act 1986 to serve such a notice on the Consulate General of Lebanon, essentially because the notice does not relate to a proceeding in a court. Therefure the diplomatic channel is not the appropriate furm of service.

However, Article 31 of the Vienna Convention on Consular Relations (which has been given the force of law Australia by virtue of section 5 of the Consular Privileges and Immunities Act 1972) provides that consular premises shall be inviglable to the extent provided in that Article. In particular, this means that:

the authorities of the receiving State shall not enter the premises without consent (except in an emergency); and

- the receiving State is under a special duty to protect the consular premises against any intrusion or impairment ofits dignity.

As such, we would suggest that service by post is more appropriate than taking the notice to the premises of the Consulate General of Lebanon.

Further consultation would be appreciated if the Fair Work Ombudsman wishes to use other powers in conducting its investigation.

Yours sincerely

f="(l)W)(iili I Diplomatic and Consular Accreditation Section Protocol Branch

R G Casey Building, Barton ACT 0221 ~.dfatgov.§=;lI~~~~~Vf-i~l fP

18

Copy issued under the Cth FOI Act 1982

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FairWorl< Australian Government 0 M BUD 5 MAN

24 May 2011

GPO BOX 9887 SYDNEY NSW 2001

I?~ I Diplomatic and Con~ular Accreditation Section Department of Foreign Affairs and Trade

IS22(1}(a)(ii)1

Reference: MAT -0001-4532

Consulate of Lebanon In Sydney

Dear Sir

I refer to our telephone conversation on 20 May 2011, and to my queries in relation to the Consulate of Lebanon in Sydney ("the Consulate").

I am a Fair Work Inspector appointed under section 700 of the Fair Work Act 2009 ('the Acf').

The Fair Work Ombudsman ("FWO") has received a complaint against the Consulate from a former employee alleging, inter alia, that contraventions of the Act and the Clerks Private Sector Award 2010 (MA000002) ("the Modem Award") have occurred in relation to wages, leave entitlements, unauthorised deductions and workplace rights.

Following receipt of the complaint, the Fair Work Ombudsman has commenced an investigation into the allegations raised in relation to the Act and the Modern Award for all locally engaged employees of the Consulate.

I thank you for your assistance to date, and for your request to specify my questions to you in writing.

The questions we ask to assist us in the investigation of this matter are as follows:

1. Is DFAT able to request information from the Consulate which would return a list of names of all locally engaged employees since 2006 (including commencement and termination dates)?

2. If so, are DFAT willing to make such a request of the Consulate?

3. If so, is DFATwiliing to provide that list to the FWO?

4. To DFAT's knowledge what is the entity name of the Consulate?

Fair Work Infoline: 1313 94 www.fairwork.gov.au ABN: 43 884 188 232

DFAT - DECLASSIFIED Date: February 2012

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Page 20: -m - dfat.gov.au · Copy issued under the Cth FOI Act 1982 Note No. 10412011 TF091241 The NSW State Office of the Department of Foreign Affhlrs and Trade presents its

5. Is there a Protocol that deals with the service of legal documents, including Notices to Produce (such as a Notice to Produce pursuant to section 712 of the Act), on Foreign Missions?

Contact details

r""'~"'-':-"'-::''''i'''''''''''Lill,!, matter, please contact me on ls .22(1 )(a)(ii)l 1 by or by post to the address above.

=~~bfL_-----'

Yours sincerely

air 0 nspector FairWol1< Ombudsman

Fair Work Infoline: 131394

,

www.falrwork.qov.au ABN: 43 884188232

DFAT - DECLASSIFIED Date: February 2012

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