Foreign nationals employed to work overseas for Australian businesses can be entitled to the benefits and protection of Australian employment law, including unfair dismissal protections, a recent Fair Work Commission (FWC) decision has confirmed.
It is a timely reminder for employers to be cautious about how they engage overseas workers, and to be aware of what entitlements overseas employees can claim.
The case involved a Philippines national who was hired by an Australian company based in Queensland to perform paralegal work from her home in the Philippines, on behalf of an Australian law firm.
She started work in July 2022 under an ‘independent contractor’s agreement’ that had an unsigned ‘employee non-disclosure agreement’ attached. In March 2024, her contract was terminated, and she made an unfair dismissal claim to the Fair Work Commission (FWC) under the Fair Work Act 2009 (Cth).
The employer, Doessel Group Pty Ltd (Doessel), attempted to have the worker’s claim dismissed on the grounds that she was an independent contractor, not an employee, in response.
The FWC initially found that the worker was an employee, not an independent contractor, and dismissed the objection. Doessel subsequently appealed the decision.
Apart from the perennial issue of whether a worker is an employee or independent contractor, this case highlights the risks for local employers engaging overseas based workers if they assume local employment law does not apply.
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