Do My Overseas Employees Fall Under The FairWork Act?

Employers must be aware of the Fair Work Act's requirements when hiring foreign workers, as well as any applicable international labour laws, to ensure their compliance.

Employers can now expand their search for talent and knowledge beyond Australian borders in order to develop and enhance their companies. Australian employers' obligations to their employees are governed by the Fair Work Act. But does it also apply to your employees who are employed abroad? This article discusses the Fair Work Act's requirements as well as the employment laws that apply to employees who are located abroad.

Are You Affected by the Fair Work Act?

There are numerous justifications for hiring an employee from abroad.

For instance, you might want to take your business overseas and send an employee to investigate the market there.

You might have discovered an overseas software engineer with a strong resume who could be crucial to the expansion of your business.

The following factors are taken into account by the law when determining whether the Fair Work Act applies to your business relationship with this employee:

• The relevant employee is based in Australia, and you are an Australian employer.

• If both of the aforementioned requirements are met, the Fair Work Act might be applicable.

Are You an Australian Employer?

In order to be deemed a "Australian employer" you need to:

• run a training or financial corporation established in Australia;

• manage a business in one of Australia's states or territories;

• or perform work in Australia with a base of operations there.

Is Australia the employee's home country?

An employee based in Australia is:

• who either live in Australia or

• are employed by an Australian employer with the intention of working there.

This means that if you're an Australian who hired your employee for work within Australia, it doesn't matter where they're located.

Exceptions

Having said that, the term "Australian employee" does not include people who work for a "Australian employer" who is located abroad and hired to perform tasks outside of Australia.

In light of this, some questions to ask yourself about the definition of "engaged" include

• The employee is in their home country,

• you offered them the position while they were abroad, and

• they travelled to Australia for work-related reasons. 

Relying on the exemption that the employee is overseas and never in Australia should be done so with caution. Many activities that the law did not initially take into account can be performed by employees. Therefore, if you ever find yourself in a dispute over whether or not you complied with Fair Work laws, the court might view the employee's engagement differently and take technological advancements into account.