Overseas Workers May Be Employees Under Australian Law

Did you know Overseas Workers May Be Employees Under Australian Law?

A recent decision from FairWork Commission should start to send alarm bells to any business owner that retains offshore resources directly.

The case, [2024] FWC 2669, involved a resident of the Philippines, who the FairWork Commission allowed to lodge a claim for unfair dismissal.

Now under the law, only an employee can claim unfair dismissal under the Act.

Leaving aside why this person was considered an employee rather than an independent contractor (a whole another issue in itself), the thing that should raise alarm bells, is that being based in the Philippines had no impact on whether this person was an employee or not.

Effectively FairWork stated that as the employer was constitutional corporation, it would be deemed to be a national system employer.  As a result all employees irrespective of where they were located, including this person in the Philippines, would be considered a “national system employee” and covered by the Fair Work Act.  As long as they were considered an employee and not an independent contractor

So based on this case, if you thought that having a person working for you outside of Australia automatically meant they were not covered by Australian workplace law, including minimum wages then you need to think again.

Contact Wayne on wayne@arealcfo.com.au or 0412 227 052.

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