Australia's national industrial relations statute, the Fair
Work Act 2009 (Cth) (the "Act"), imposes numerous duties
on Australian employers and grants Australian employees numerous
rights and entitlements. However, in certain situations, the Act
has an extended application, which foreign companies doing business
in Australia, or Australian companies doing business overseas, are
unlikely to expect. In 2014, the Federal Court of Australia
determined two significant cases that helped to clarify the extent
to which Australia's employment laws apply to foreign employees
(and to foreign companies employing people within Australia).
In December 2014, the Federal Court of Australia held the sole
director and shareholder of Devine Marine Group Pty Limited liable
for contraventions by the company of its obligations to pay two
Fijian workers the minimum wages and other benefits required under
The defendant, Captain Devine, had arranged for the two workers
to be brought to Australia as apparent participants in a training
program when, in reality, they were carrying out work as employees
and were entitled to the benefit of Australia law. The workers
undertook salvaging activities for the company in Port Adelaide,
South Australia, although they were paid significantly below the
applicable Australian minimum wage (quite possibly more than they
would otherwise expect to earn in Fiji, however). Consequently, the
court reaffirmed the principle that non-Australian employees of
Australian employers are afforded the same protections under the
Act, at least where their work is carried out in
The Fair Work Regulations 2009 (Cth) further extend the
extraterritorial application of the Act in ways employers are
unlikely to expect. Critically, certain protections are extended to
employees of Australian employers (including companies incorporated
in Australia) whether or not those employees are based in
Australia. These extraterritorial protections include (but are not
limited to) sections of the Act that prohibit unlawful
discrimination and dismissing employees because they were absent by
reason of illness or injury.
In 2012, the Fair Work Ombudsman (the Australian regulator)
sought to prosecute Australian budget airline Jetstar for
contraventions of the Act in respect of non-Australian crew members
employed by two subcontractors that were companies incorporated in
Thailand and Singapore. The FWO argued that Jetstar was
"involved in" and therefore liable for the
contraventions, which included a failure to pay the employees the
applicable minimum wage. The case was dismissed by the Federal
Court in July 2014, largely because the employment relationships in
question did not have a sufficient connection with Australia since
the foreign employees were employed by foreign companies.
If the non-Australian crew members had been employed by Jetstar
(i.e., an Australian employer), they may have been entitled to
residual protections under the Act—notwithstanding that the
employment relationship otherwise had little to no connection with
Australia. The Fair Work Ombudsman may well seek to run another
test case along the lines of Jetstar if appropriate facts arise.
The risk of noncompliance by Australian employers in respect of
non-Australian employees is heightened considering that these
non-Australian employees may be willing to work in conditions (and
for benefits) that Australian employees would not accept.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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