Overseas Worker’s General Protections Application Dismissed
FWC President Justice Adam Hatcher has signalled that the general protections may reach further offshore than most people assume. A Philippines-based manager, engaged there to work for the regional headquarters of an Australian outsourcing group, was dismissed at the end of his probation period and lodged a general protections claim.
Justice Hatcher inferred that an Australian company was the employer, the group having failed to show that its Philippine regional headquarters had a legal identity separate from its Australian parent. The man was not, however, an “Australian-based employee” within the meaning of the Act, because his contract was formed in the Philippines and his duties were performed there. Following Federal Court authority, the protections extend offshore only where the employer is Australian and the employee is Australian-based. He met the first limb but not the second, so the application was dismissed. Justice Hatcher’s own preferred reading was that either limb would be enough, but he followed the court.
Take-Out Point: The definition of an Australian-based employee turns on where the contract was formed as well as where the work is done, so an employee sitting overseas will not always fall outside it. An Australian business with staff offshore should not assume the Fair Work Act stops at the border.
See: Jeffrey Asuncion v ConnectOS Pty Ltd and Ors (C2025/7255)