Employee Relations & HR

Effective workplace investigations are essential to ensure a fair and unbiased procedure is carried out when complaints such as bullying, harassment or misconduct are made against employees in the workplace. 

When a complaint is made against an employee, it is critical that employers investigate the complaint in a thorough, unbiased manner. The nature of a complaint can vary from accusations of bullying or sexual harassment, to exposure of employee theft or fraud. In any case, a fair process must be followed to ensure the accused employee is afforded a fair go, a critical component in defending any subsequent unfair dismissal claims.

In addition, a fair investigation will reduce the company liability for claims brought against the employer. An employer can be held vicariously liable for the discrimination and harassment carried on by one of their employees in the workplace against another employee, unless it can be shown that reasonable steps have been taken to protect the employee concerned. Importantly, an employer must ensure that all complaints are treated seriously and investigated both promptly and fairly.

Often HR professionals do not have the requisite experience or confidence to conduct effective workplace investigations. Nevertheless, industrial tribunals will have the expectation that the presence of a dedicated HR professional should result in a fair outcome.

Below is an example of how to conduct a workplace investigation that may be of assistance to HR professionals who find themselves in this situation.

1. Take a statement

Take the complainant's statement as soon as possible while the incident remains clear in their mind. The statement should include information such as dates and times, the sequence of events, and witnesses that were present. The statement should then by signed by the complainant as a true and accurate reflection of the events.

The employer must then interview the subject of the complaint.

• The person should be offered the opportunity to have a support person present during the interview. This person is to provide emotional support to the person, they are not to respond on the employee's behalf or disrupt the proceedings.
• The company should also have a witness present. The witness could take minutes of the meeting and can corroborate what was said during the meeting should the need arise later.
• When the interview is conducted, ground rules should be established, and all present must be made aware the interview is strictly confidential.
• The person must be afforded natural justice and procedural fairness during the investigation process. The person must be made aware of who is making the complaint, the nature of the complaint, and given an opportunity to respond to the allegations. Their statement must be taken and their version of the situation investigated, such as approaching witnesses etc. 
• If the company believes the situation to be serious they should suspend the employee on full pay while they conduct the investigation. This may be an effective option if the complaint involves workplace bullying, as witnesses may be hesitant to come forward while the person is still at the workplace.

2. Investigate the incident

The investigation entails interviewing and taking statements from all witnesses and obtaining any corroborating or contradictory information. The employer must interview witnesses separately, so that they do not influence each others' recollection of events. It is important to remind employees of the need to keep sensitive issues confidential. As with the complainant’s statement, ensure that any information obtained includes specific first hand accounts including dates, times and actual observations. 

Both the complainant's and the respondent's statements must be investigated to ensure a fair procedure.

3.  Assess the results of the investigation

Once all the information has been obtained the company needs to assess whether there is sufficient concrete evidence to support the claim. If there is, a meeting must be held with the accused to present them with the evidence. There is no need to give the employees copies of the written statements, but they should be informed as to their content. Once the accused has been given an opportunity to respond, a decision needs to be made about the level of disciplinary action (up to and including termination) commensurate with the behaviours. The level of disciplinary action varies depending on the issue at hand and company policy.

In the case where there is no evidence to support the claim, the employee against which the allegations were made must be informed. In addition, the company may need to implement some measures to remind their employees that conduct such as bullying is not tolerated in the workplace. These measures could include:

• implementing or re-issuing the company policy on discrimination, harassment and bullying to all employees so they are aware of what is not acceptable conduct;
• conducting training on identifying discrimination, harassment and bullying;
• establishing (or reviewing) complaint handling procedures to ensure they are fair and timely, and;
• monitoring the workplace environment and culture.

By Esther Sunderland

CCI Employee Relations Adviser

CCI members will be aware that Anzac Day this year falls on a Saturday. Under the Public and Bank Holidays Act 1972 (WA) there is a requirement that when a public holiday falls on a weekend that the State Government must gazette an additional day as a public holiday on the following Monday.

Hence Monday 27 April 2009 is an additional public holiday on top of Anzac Day. This means there are two public holidays on which penalty payments may need to be made, subject to relevant awards and agreements.

In addition, it is important for members to note that all employees have a right, under section 612 of the Workplace Relations Act 1996, to refuse to work a public holiday on reasonable grounds. 

Entitlements and obligations are likely to be further complicated next year, when Anzac Day falls on a Sunday, because of the interaction between modern award provisions and the National Employment Standard. 

If members have questions about their obligations they should contact CCI's Employee Relations Advice Centre or their industry adviser for specific advice about the respective industry sectors. ERAC can be contacted on (08) 9365 7660 or advice@cciwa.com.

By Marcia Kuhne

CCI Workplace Relations Policy Manager

In 1991 businesses and unions were told by the Australian Industrial Relations Commission they were not "mature enough" to negotiate and settle their own workplace arrangements

Fast forward to 2008 when government data shows 15,069 collective agreements were lodged for approval from 7 May 2007 to 31 December 2008 covering 956,247 employees. 

Based on the success of employers and employees working together, without micro-management from third parties, previous governments have enshrined in legislation productivity based enterprise agreement making processes.

This boosted employer confidence and businesses grew in WA - full-time employment up by 3.1% to January 2009 and average weekly earnings increased 8.6% over the year to November 2008. 

Although employers and employees relations are evolving and maturing, the Federal Government now wants to return us to a "nanny state" of prescriptive regulation.

A safety net of increased costs and inflexible conditions in modern awards and national employment standards has been proposed. For example, fixed hours will be imposed preventing an employer from discussing with a part-timer any change to their working hours to coincide with peak demand times, unless of course penalty rates are paid for those hours that would not otherwise attract penalty rates.

Beyond this safety net, employers must bargain with employees whenever a majority wants to bargain for higher wages and improvements in conditions, even where the employer wants to give a pay increase based on what the company can afford. If this is rejected by the employees, they can go to the umpire to order the employer to bargain. If agreement is not reached the umpire can force its decision on matters, including those that are irrelevant to what will make the business more efficient and better for the workers and their boss.

If only one employee wants a union representative, the employer must bargain with that union. An employer refusal can lead to the umpire ordering the employer must  bargain with that union.

During bargaining, a union has right to negotiate all sorts of claims, including those that are about its relationship with its members, e.g. an employee’s ability to attend to union business in work hours. 

If the employer disagrees the union can apply to the umpire for an order because the employer is not bargaining in good faith. An employer can be in breach of such an order merely by continuing to reject the claim, with such a refusal viewed as capricious. The union can then seek a further order from the umpire forcing the employer to bargain about the contested matter. A further refusal by the employer to can lead to a serious breach determination - and so it goes.

If strike action is taken by employees because an employer won’t agree to giving employees union business leave, the employees - after losing pay because of having been on strike - can ask for the umpire to arbitrate the outcome.

Where agreement is reached after lengthy process, it must be approved by the umpire after being assessed against the better off overall test (BOOT) - i.e. every employee must be better off overall compared with what they currently get. It is inevitable that there will be further delays in the process resulting from such a microscopic analysis.

The upshot - a clear case of umpire managed bargaining reminiscent of the centralised system of a bygone era. The business owner’s decision making ability disappears and is replaced by an umpire who has no connection with the business and no knowledge of the subtleties and complexities of other cost priorities that might be compromised when the business owner's hand is forced. To make matters worse, umpire time will cause delays at every step of the process. Far from delivering improved productivity as the Government promises, re-regulation of agreement making is going to create inefficiencies and deal a costly blow to business.

The potential is for every business to be micro managed by FWA bureaucrats and union officials, preventing what needs to be a constructive and mutually responsible engagement between employees and their employer.

By Marcia Kuhne

CCI Workplace Relations Policy Manager

The economic downturn has seen many businesses cancel or put on hold non-essential employee initiatives. However, there are some initiatives that can provide a cost benefit. Part three of our series on flexibility in the workplace looks at working from home programs and the advantages for employers in a tough economic environment.

Working from home is a practice that is best suited to particular job roles that do not require direct supervision and interaction with other employees. For example, roles that are substantially based on research, policy/report writing or planning would benefit from a working from home initiative due to fewer distractions from other employees and clients.

Currently this method is not widely used, however, it has benefits for business and the community as a whole. In this case, staff are able to access their emails and potentially other applications from their home computer or laptop so that they can work from home. Companies can arrange for employees to work from home on certain days or they can give the employee the option to work from home if they need to, for example if they are caring for a sick child.

Issues that need to be considered are that productivity may be reduced due to distractions at home. Employers should word their policy on working from home to ensure it covers all situations and that this is an added benefit that could be withdrawn at any time. This protects the employer from those staff that take advantage of the entitlement and do not complete the required working hours that are needed to get the job done.

There may be occupational safety and health risks in the home office and concerns over workers' compensation insurance coverage. Employers should ensure a risk assessment is conducted and that they receive advice as to whether their employees should apply for their own public liability insurance. Security concerns as to who has access to the office in the home should also be addressed if the employee is handling confidential information.

Another important aspect of a working from home initiative is people management. Employees need to have sufficient management contact, effective communication with other employees, training and notification of meetings and announcements in order to not be disadvantaged by choosing to work from home.

In the next issue of Business Pulse we explore job sharing and part time work as a flexible work practice.

This article is based on an information sheet recently released which is available on www.cciwa.com/ or via the CCI Employee Relations Advice Centre on (08) 9365 7660.

Case study - flexibility at a consultancy firm

CCI recently assisted a member who was trying to put a business case together regarding the long term cost benefits of working from home.

CCI advised that the short term outlay for this practice has some costs, however, in the longer term the employer may save on costs by being able to lease a smaller office space and less car parking. Furthermore, the employer can demonstrate that they are environmentally conscious by reducing the amount of cars on the road and carbon emissions.

The program would also offer many other benefits to staff and could see the company become an employer of choice. Particular advantages would be for those employees who are primary caregivers as they can remain at home to care for their children or elderly parents whilst also fulfilling career opportunities and cutting down on child care/elder care costs. When trying to attract quality staff, initiatives such as these can be seen to be very advantageous to prospective employees.

By Esther Sunderland

CCI Employee Relations Adviser

In its presentation to a Senate inquiry hearing in Perth on 29 January 2009, attended with CCI members Compass Group Australia and Clough, CCI discussed a number of its 48 recommendations for amendments to the Fair Work Bill 2008. 

In its discussion on agreement making, CCI told the inquiry that WA businesses wanted enterprise agreements that were easy to use, easy to make and delivered improved productivity; a reasonable expectation given the Bill's object to "promote national economic prosperity….by achieving productivity and fairness through an emphasis on enterprise level collective bargaining". 

CCI told the inquiry that the regulatory requirements in the Bill were likely to delay and frustrate the agreement making process, compounded by the number of opportunities for orders from the new umpire Fair Work Australia.

The new good faith bargaining requirements introduced ambiguity likely to result in arguments and potentially litigation, complicating negotiations and diverting the focus away from the key concerns of the employee and the employer. For example, the requirement to refrain from "capricious or unfair conduct" will have a range of meanings dependent on a negotiating stance and is open to abuse.

Matters that can be included in bargaining for an enterprise agreement (known as "permitted matters") have been significantly expanded to include matters not directly affecting the employment relationship. This has potential to lead to protracted bargaining including wasted time in argument over whether a matter is "permitted" or not. The range of matters is likely to include union related claims such as trade union training leave and leave to attend union business. Expansion of permitted matters can also lead to more protected industrial action because employees can go on strike over any of the range of expanded matters on the bargaining table.

The Bill gives a union an automatic right to sit at the bargaining table with the employer on the sole proviso that it has one member, even if the business employs hundreds of employees. 

Options for several streams of bargaining such as multi-employer and single employer will mean businesses could be faced with bargaining in both the multi-employer and the single enterprise streams.

A low-paid bargaining avenue adds further complexity as it looks like an opportunity for pattern bargaining across industry sectors, including an option for arbitrated results, accessible to employees who may already be covered by enterprise agreements.

A new "better off overall" (or "BOOT") test means that each award and prospective award covered employee must be better off overall under the agreement compared with the relevant modern award. In other words the test will not be applied globally, as applies currently, but instead to each and every employee. Such a method of applying the test is likely to result in significant approval delays, to mention only one procedural issue.

Access to arbitration would be too easy. Whereas the government previously promised that arbitration would only be available in rare intractable cases, it will be available as soon as negotiation becomes difficult and this undermines the bargaining process. 

Changes to greenfields agreements have potential to delay projects, increase costs and create disruption in workplaces due to employee organisation demarcation disputes or overlapping coverage.  This is because of the Bill’s requirement on an employer to notify every union that has an interest in the sector of its intention to negotiate pay and conditions for a new workforce.

Belying government assurances that "…existing right of entry laws will be retained", subtle changes will have significant consequences in some worksites likely to also broaden and introduce delays into agreement making. Reducing current requirements for right of entry for holding discussions provides a union with the ability to enter a site so long as there are employees eligible to be members of the union. This change significantly widens the scope for right of entry.

Industrial relations legislation needs to support workplaces to effectively deal with constantly changing national and global economic circumstances. It needs to allow and facilitate flexibility in employment arrangements while safeguarding all participants from unfair or unnecessarily onerous influences.

CCI will keep members informed about the progress of the Bill following the Senate Inquiry due to be finalised by 27 February 2009. If members wish to discuss issues related to the Bill please contact Marcia Kuhne on (08) 9365 7699 or marcia.kuhne@cciwa.com, or contact the Employee Relations Advice Centre (formerly Business Advice Centre) on
(08) 9365 7660 or advice@cciwa.com.

By Marcia Kuhne

CCI Workplace Relations Policy Manager

Incorporating a culture of flexible hours into the workplace may assist businesses in sourcing quality employees and becoming an employer of choice. In the last edition of Business Pulse, the more widely used flexible hours practices were discussed. This second instalment details the flexible methods that are of benefit to specific industries.

Some flexible work practices are more suited to particular industries or organisations. For example, offering subsidised child care or an on-site crèche will only be effective if the company's employees are predominantly parents with young families.

Compressed working week

If the work situation allows for it, some employees are compressing their 38 hour week from five days to four and having the fifth day off. This means that the employee works 9.5 hours over a four-day week rather than 7.6 hours over five days.

This method is very popular in high-stress job roles where employees acquire a longer weekend in which to relax, or in work situations that operate by appointment. The benefit is that appointments can be scheduled over four days which creates greater flexibility for customers by providing after-hours appointments if required. However, this will only work in industries that do not require full contact during normal business hours.

School-term employment

Staff are employed to work only during the school term. That is, employees' work hours are typically school hours between 9am and 3pm and only during school terms. Industries that have a downturn in work during school holidays or are able to easily supplement their staff with casual school or university aged employees would find this practice attractive.

Annualised hours

Normally, employees are expected to work a 38 hour week each week. In this scenario, employees can instead average their hours over a monthly or annual basis. For example, the employee could work 50 hours one week and then 26 hours the next so that on average the employee still completes 38 hours per week.

This can be of great benefit to workplaces that experience peaks and troughs of work as staff can work longer hours one month and then less the next as the workload increases and decreases. Employees with personal commitments can also benefit from this practice by being guaranteed the same pay each week but they can take time off during the normal working day to attend to their commitments.

This practice does require more administrative work, such as timesheets to keep track of employee hours and a reconciliation of hours worked at the end of each anniversary year. Employers seeking to use this method are encouraged to contact CCI for further advice due to the possible implications from legislation and occupational health and safety.

In the next issue of Business Pulse the topic of working from home will be discussed. This instalment will be of particular interest to businesses looking to downsize their office size and implement ‘hot desks’ to cut costs.

This article is based on a new information sheet recently released which is available on www.cciwa.com/ or via the CCI Employee Relations Advice Centre on (08) 9365 7660.

By Esther Sunderland

CCI Employee Relations Adviser

In the December edition of Business Pulse, CCI alerted members to the potential increased costs many businesses were facing as a result of the award modernisation process underway in the Australian Industrial Relations Commission (AIRC).

Since then CCI has continued to represent the interests of members in the process, lodging submissions with the AIRC in all major industry sectors. Where necessary, CCI has ensured that employee relations consultants have attended AIRC consultations being conducted in Melbourne and Sydney.

Minister for Employment and Workplace Relations Julia Gillard issued a further amendment to her award modernisation request on 18 December 2008 excluding enterprise specific Notional Agreements Preserving State Awards (NAPSAs) from the modernisation process, in addition to her previous instruction to exclude enterprise specific federal awards. The revised request also amended instructions previously provided regarding individual flexibility terms and the interaction between awards and the proposed National Employment Standards (NES).

On 19 December 2008 the AIRC released the final draft modernised awards from the first stage of modernisation. The modernised awards will apply from 1 January 2010 in the following industry sectors:

• catering, liquor and accommodation, restaurants (including clubs)
• clothing (including footwear manufacturing), textiles
• coal mining
• higher education
• metal and associated industries, glue and gelatine, rubber plastic and cablemaking
• mining
• private sector clerical (occupational)
• racing
• rail
• retail (with separate awards for general retailing, fast food, hair and beauty and community pharmacies)
• security services

Concerns raised by CCI and other employer groups regarding the increased costs of employing staff under the new modernised awards were not heeded by the AIRC and the final awards from stage one will undoubtedly impact adversely on many businesses. Of major concern was the significant cost impact in the retail and hospitality sectors, where businesses were already affected by the current economic conditions.

Members should be aware that although the final awards from stage one have been released, the AIRC is yet to address the important issue of transitional arrangements and has indicated that this will not occur until July 2009. The transitional arrangements allow increased rates to be phased in over a period of up to five years. The delay in addressing transitional arrangements creates major difficulties for employers who will be unable to accurately budget for employment costs for the next financial year.

To assist members in planning for the commencement of the new awards, CCI is currently preparing summaries of the key conditions contained in the final awards as they are released by the AIRC. These will be available shortly to CCI members from the Employee Relations Advice Centre on
(08) 9365 7660 or by visiting www.cciwa.com/.

The second stage draft modernised awards, 24 in total, were released by the AIRC for comment on 23 January 2009 and cover the following industries:

• agriculture (including wool)
• building, metal and civil construction
• cleaning services
• financial services
• graphic arts (including printing)
• health and welfare (including an occupational award for nurses)
• information and communications, technology
• manufacturing
• private transport
• quarrying
• sanitary and garbage disposal services

CCI has consulted with members and has been involved in negotiations with other employer and employee groups regarding award content in most of these industry sectors. Comments on the draft awards were required by the AIRC on 13 February 2009 before consultations in Sydney between 23 and 27 February 2009.

Stage three of the award modernisation process, covering the largest number of industries, commenced with initial written submissions due by 6 March 2009, with subsequent opportunities available for input. Some of the major industries include:

• airport operations
• food and beverage manufacturing
• meat industry
• entertainment and tourism industry
• licensed/registered clubs
• pharmaceutical industry
• professional engineers and scientists
• vehicle repairs, retail and manufacture (including service stations)
• wholesale industry and commercial travellers.

Member feedback is critical to enable us to make comprehensive submissions. To date the feedback has been limited. CCI strongly urges members to provide their views and input.

To have your say and for a full list of industries covered in stage three please contact the Employee Relations Advice Centre on (08) 9365 7660.

By Sue Laferla

CCI Employee Relations
Services General Manager

www.cciwa.hradvance.com.au

HR Advance is a web based employee relations management tool that gives you access to a comprehensive library of HR documents that can be customised including contracts, policies, forms, correspondence and checklists. All documents come with extensive notes on their use and application.

HR Advance is backed by the Chamber of Commerce and Industry of WA and has been constructed by experienced legal practitioners to provide a reliable source of up to date help and information in a frequently changing industrial relations environment. Employers do not have to keep up with the changes; HR Advance does it for you.

Features and Benefits

• All your employment documentation requirements are in one, easy-to-access area. 
• Ability to create documents, including AWAs and Contracts of Employment, that are customised to your business. 
• Regular updates to the document library to coincide with the latest legislation mean that you can always be confident that you are up to date. 
• Regular email alerts to keep you informed of changes to legislation and subsequent changes to the documents will help you manage the impact of change on your business.

HR Advance Subscription Options

HR Advance has a range of access levels. HR Basics offers a selection of the most commonly used tools while HR Advance gives full access to the entire document library and all the resources.

There are over 120 user friendly documents and templates available including:

• AWA 
• Contract of employment 
• Recruitment Checklist 
• Performance Appraisal Form 
• Termination Letter 
• Leave Policy

and much more

HR Advance works on a 12 month subscription basis and users can log on and subscribe at any time using their credit card. You can then access the website as often as you like. Free online demonstrations are available.

Substantial discounts are available for CCI members and renewals attract a reduced rate.

Go to www.cciwa.hradvance.com.au to find out more information on this product.

Common law is well settled as to how employers can protect their business interests by restraining former employees from discussing trade secrets or capitalising on relationships with the ex-employer's customers.

Trade secrets 

Courts have consistently stated that employers are entitled to have their interests protected and may do so by restraining employees divulging secrets or putting such secrets to their own use.

Apart from these exceptions, employers are unable to protect against competition and must be prepared to encounter competition at the hands of former employees.

A restraint that attempts to restrict competition or a restraint against the use of a person's skill or knowledge acquired in the employer's business will not be upheld as a valid restraint.

Poaching of employees by ex-employees In April 2005, the New South Wales Supreme Court (Aussie Home Loans v X Inc Services [2005] NSWSC 285) had to determine whether a restraint purporting to stop ex-employees from enticing existing employees to leave the employer was valid under common law principals.

The Court referred to previous decisions which held that an employer had a legitimate interest in maintaining a stable, trained workforce, which could be protected against solicitation and enticement by a former employee but such restraint had to be reasonable.

In the case in question, the restriction stated that employees could not for a period of 12 months after the termination of their employment, for any reason, solicit, interfere with or endeavour to entice away any employee or contractor of the employer.

Employees have the right to work for a rival business which may offer more attractive terms of engagement upon duly terminating their arrangements with the employer.

In this case, the NSW Supreme Court held that the 12 month restriction was unreasonably long, particularly having regard to the fact employees were only required to provide one month's notice to terminate their employment contract.

As the restraint clause could not be read down, it was held to be unenforceable at common law.

In the matter of Miller-Smith v Richardson Pacific Ltd, at first instance, the WA Industrial Relations Commission was faced with a claim of contractual benefits in the form of unpaid redundancy monies at the rate of 3.5 weeks for each year of service.

The material facts of the matter before the Commission were:

• the applicant had worked in various capacities with the employer since 1988
• the applicant, at the date of her dismissal, was employed as the West Australian State Manager, whose contract of employment was mainly verbal but which contained the implied terms of the Minimum Conditions of Employment Act
• the employer was bound by a number of Federal certified agreements that applied to its production workforce. These agreements provided an entitlement of 3.5 weeks pay for each year of service in the event of a dismissal for reason of redundancy
• the employee was not covered by the certified agreements
• a practice had developed throughout the 1990s that when the employer made nonproduction staff redundant, employees were paid the same redundancy benefits as then applied to production employees bound by the certified agreements.
• there was evidence of this practice from a variety of documentary sources and by evidence of witnesses.
• the employee gave evidence that the managing director had confirmed the practice and told her that if she were made redundant, she would receive the same benefits.
• the ownership of the employer changed when another company bought its shares.
• during the “due diligence” phase, the Employer told the buyer that it did not have any policies or contractual obligations that affected the employee if she were made redundant.
• acting on this information, the buyer applied its own redundancy policy (2 weeks pay per year of service) when it made the employee’s position redundant.

The Commissioner found that the entitlement to 3.5 weeks redundancy pay arose out of the custom and practice of the employer since 1991.

He made a finding that there was no express term as to redundancy since the evidence given on that point was largely hearsay and inadmissible.

The employer appealed the decision on a number of grounds including that the Commission was in error in implying the term as a matter of custom and practice.

On appeal, a Full Bench of the Commission agreed that the Commissioner had erred in finding a term of contract based on custom and practice but allowed the employee to argue that the evidence demonstrated that there was an express term of the contract that ensured her entitlement to the redundancy payment of 3.5 weeks per year of service.

The express term arose out of the reported admissions by the general manager.

The Full Bench held that … “an informal admission by words or conduct made by a party or those in privity with a party is admissible evidence against the party of the truth of its context.”

The Full Bench affirmed the decision of the Commission at first instance, but for different reasons, and dismissed the appeal.

The moral of this case is this: management employees should be extremely wary of making informal comment as to contractual benefits to their employees.

Confirmation of such contractual rights should be left to more formal processes.

A new minimum salary threshold for positions being offered to temporary business entrants has recently come into effect.

From 11 February 2004, Australian employers seeking to sponsor temporary overseas employees for nominated positions in Australia will be required to pay a minimum base annual salary of $37,720 per employee.

This excludes additional payments such as superannuation, accommodation, bonuses or any other non- salary benefits.

The new minimum salary threshold is an upward revision of the base salary level of $35,828 which has been in effect since November 2002 and reflects the average annual earnings for all employees in Australia, as at February 2003.

In addition, a new separate minimum annual salary of $46,620 will apply to information and communication technology positions to better reflect the typical salary for experienced professionals in that industry.

The gazetted revision has been made despite CCI’s expressed concerns that the minimum salary threshold arrangements for temporary business entrants is set inappropriately in relation to some state and relevant federal awards which apply in WA.

The arising disparity between the gazetted salary threshold and some awards previously highlighted to the Federal Government is preventing some employers from accessing temporary overseas employees. This has created difficulties particularly in areas where there are identified skill shortages. While the gazetted salary level will apply to position nominations lodged on or after 11 February 2004, the new level will not affect employers in regional and low-population growth areas.

Under special provisions introduced in 2002, employers in regional Australia may seek an exemption from the salary requirement under exceptional circumstances.

For more information contact Ivan Hoe at CCI Migration Services on 9365 7614 or e-mail: hoe@cciwa.com

There are a number of avenues for entry to Australia depending on the length of time people intend to remain in the country.

Short-term stay

The business (short stay) visa
This visa may be issued for single or multiple entry. Holders of a multiple entry visa may make any number of journeys to Australia for up to three months on each occasion.

Multiple entry visas may be valid for up to five years, or the life of the passport (to a maximum of 10 years). Applicants must apply for this visa outside Australia.

The Electronic Travel Authority
The ETA allows tourists and business visitors to obtain visas for Australia at the time they make their travel arrangements. The ETA system is accessible through travel agencies and airlines in the United States, Japan, Singapore, Malaysia, Korea, United Kingdom and many other Asian and European countries.

The APEC Business Travel Card
This card provides business people with simplified entry to a number of economies of the Asia-Pacific Economic Co-operation (APEC) forum. Holders must be passport-holders of one of the participating countries, currently Australia, Chile, Chinese Taipei, Hong Kong SAR, Korea, Malaysia, New Zealand and the Philippines.

Brunei, Darussalam, China, Indonesia, Peru and Thailand have also joined the scheme and will commence issuing cards in the near future.

Cardholders enjoy express immigration clearance and pre-cleared entry to participating economies.

Long-term stay

Longer terms are available for business people allowing up to four years temporary residence in Australia. A number of visas facilitate the entry of a long- term visitor to Australia.

Labour agreements
A labour agreement is a formal arrangement negotiated between the Commonwealth Government, represented by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the Department of Employment and Workplace Relations (DEWR), and an employer or industry association.

Labour agreements enable Australian employers to recruit a specified number of workers from overseas in response to identified or emerging skill shortages in the Australian labour market. Agreements are normally negotiated for a period of two to three years.

Regional Headquarters Agreements
RHQs are a form of labour agreement negotiated between the Department of Industry, Tourism and Resources (Invest Australia), DIMIA and an employer who wishes to locate their regional headquarters in Australia. These agreements offer both permanent and temporary entry to key executive and specialist personnel who are essential to the establishment and management of the Australian-based regional operations.

Immigration arrangements for those entering Australia under an RHO are streamlined and given priority processing over standard labour agreements.

Business Temporary Entry visa
These arrangements cater for employers wishing to sponsor the temporary entry of highly skilled personnel to Australia. Under the current arrangements employers are able to sponsor a range of occupations including professionals, para-professionals and skilled trades people who have employment in Australia.

CCI Migration Services is available to provide advice and guidance to employers seeking to sponsor an employee from offshore.

For more information contact CCI Migration Services on 9365 7618 or e-mail: visas@cciwa.com