How To Hire Employees Who Live Overseas

When hiring foreign workers, employers must consider their obligations under the Fair Work Act, as well as any applicable international labour laws, to ensure they are compliant.

There are many reasons why a company might decide to hire workers from abroad. If there aren't any Australian employees available to fill the position, it might be to access talent, fill skills gaps, or for any number of other reasons.

Employers should be familiar with the procedure for hiring from abroad, regardless of the justification. This entails adhering to applicable Australian and international laws as well as any industrial relations considerations that might be relevant, in addition to making sure they are qualified to source and hire workers from abroad.

In this process, the Fair Work Act of 2009 is crucial. Businesses are required to abide by the Fair Work Act (FWA), which in some cases applies to workers who are employed abroad. The Fair Work Act of 2009 defines the terms and conditions of employment as well as the rights and obligations that apply to both employees and employers.

The Fair Work Act applies to who?

Both Australian employers and Australian employees will be covered by the Fair Work Act.

All Australian businesses are included in the definition of an employer but typically the public sector and local government employees are not.

Any person whose primary place of employment is in Australia or who works for an Australian employer as described above is considered an Australian employee.

Employees hired outside of Australia to perform tasks abroad are not included in the definition of an Australian employee. The following elements must be taken into account in order to determine whether they are protected by the FWA:

Do you know if the contract was made outside of Australia? If it was, the employee's eligibility for FWA coverage is doubtful.

• Did the employee carry out their duties from within or outside of Australia? Employees are not regarded as Australian employees if they spent the entirety of their employment outside of Australia.

• Did the employee have work obligations inside or outside of Australia? An employee is unlikely to be regarded as an Australian employee if they are hired to perform tasks outside of Australia.

What should employers do if foreign workers are covered by the Fair Work Act?

Employers should engage workers under an employment agreement if the FWA is applicable. With some modifications to reflect their place of employment, an employer may decide to offer them the same employment as Australian-based employees.

Employers must make sure they adhere to all provisions of any applicable modern awards as well as the FWA. Employees have the following rights: - Minimum wages - Leave, including annual, sick, and parental leave

- Protection against discrimination - Protection from wrongful termination - Any redundancy payments

What should employers do if international workers are not covered by the Fair Work Act?

An overseas worker may be hired as a contractor under a contractor agreement if the FWA is not applicable.

Since a contractor agreement is a commercial arrangement, the employer may determine its commercial terms without taking the Fair Work Act's entitlement into account. Benefits specified in employment agreements may still be provided, but only in the manner determined by the employer. If an employer so chooses, they may also choose to provide an employment contract to their foreign employees.

International Industrial Law

Additionally, workers may be protected by regional labour laws. An overseas employee may be protected by both the Fair Work Act and the industrial laws of the nation in which they are employed.

The flip side of this is that an overseas employee might not be protected by the Fair Work Act but still have rights under local industrial law for which the employer might be responsible.

Employers are advised to consult legal counsel in these situations to ascertain which international labour laws are relevant.

Employers must be fully informed about whether the Fair Work Act applies to foreign hires and how those employees are treated when it comes to hiring foreign workers.

Contact the Lite Force team or send us an email to discuss your options for hiring foreign workers.

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