In the very recent case of Gautam Parimoo v Lake Resources N.L. [2023] FWC 2543 (4 October 2023) the Fair Work Commission was required to determine if it had jurisdiction to deal with a General Protections application, filed by an Argentina-based Chief Operating Officer, who was a US citizen, and who at all relevant times worked outside of Australia, but was employed by an Australian employer.
Given the mobility of employees post Covid-19, the application of the Fair Work Act to overseas employees is now a genuine consideration for many employers. It is no longer an unusual arrangement for employees to live and work in other countries for an Australian employer.
In accordance with the definition of an “Australian-based employee” under section 35 of the Fair Work Act, the Act applies to employees employed by an Australian employer, whether the employee is located in Australia or elsewhere, unless the employee is engaged outside Australia to perform duties outside Australia.
This exception under s35(3) is therefore a two-pronged test, and for the exemption to apply, both of the following must be satisfied:
In the case of Gautam Parimoo v Lake Resources N.L it was clear that the second limb of the exception was met, in that the employee performed their duties outside of Australia. The employee was engaged to perform work in the province of Catamarca, Argentina. However, as the contract was signed overseas and then sent by email to the Sydney office, this raised an issue of whether the employee could have been said to have been “engaged outside Australia” as is required by the first limb of the exemption.
Ultimately, it was determined that the employment contract was made at the time that the employee communicated his acceptance of the employment contract to the employer (by returning a signed copy to the employer by way of email). As the email accepting the signed contract was opened in Sydney, the employee was found to be an Australian-based employee and the claim was therefore within the jurisdiction of the Commission.
Following this determination, employers should be conscious of the implications for any overseas employees they have engaged. Employers should take the opportunity to consider whether the Fair Work Act applies to some employees who they may previously thought would have been outside the scope of the Fair Work Act.
It is crucial that employers understand the jurisdiction they are operating in to ensure they are adhering to the relevant laws. If you would like any assistance in this area, please reach out to one of our specialised HR consultants at Mazars on 1300 200 725 or mazarshr@mazars.com.au.
Published: 17/10/2023
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