In unfair dismissal case, individual says work 'ultimately benefited Australian operations'
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case that questioned when overseas workers could access Australian workplace protections.
The case highlighted the increasingly common situation of Australian companies operating through overseas subsidiaries.
The worker believed he could claim unfair dismissal in Australia because he worked for a subsidiary of an Australian company. He argued that despite being based overseas, his work ultimately benefited Australian operations.
Overseas worker of an Australian company
The case began on 7 April 2024 when a worker filed an unfair dismissal claim against one of Australia's major banks.
The bank raised three objections, focusing mainly on whether its Indian subsidiary - NAB Global Innovation Centre India Private Limited (NICI) - was the actual employer rather than the Australian bank itself.
The employment contract revealed key details about the working arrangement. The job was based in Gurugram, India, and would be governed by Indian law.
All disputes were to be handled under India's Arbitration and Conciliation Act 1996. The worker had signed this contract in India with a NICI representative on 26 June 2023.
Evidence showed he had previously filed a separate claim in India naming NICI as his employer. The worker was also part of a confidential agreement with NICI when he resigned.
‘Never worked in Australia’
The worker argued that since NICI was a foreign corporation working for an Australian business, it should fall under Australian workplace laws. He relied on sections 13 and 14 of the Fair Work Act and pointed to previous cases about foreign corporations employing people for Australian operations.
However, the FWC noted a crucial distinction from earlier cases:
"[The worker] has never worked in Australia, nor has he undertaken any work for NICI in Australia. [The worker] was employed by NICI to work in India and his primary place of work was in India."
The employer maintained throughout that NICI handled all aspects of the employment: "There is no evidence that NICI employs employees to work in Australia."
What’s an ‘Australian-based’ employee?
The FWC examined whether the worker qualified as an "Australian-based employee" under section 35 of the Fair Work Act. This involved looking at where the contract was formed and where the work took place.
The Commission found clear evidence about who the actual employer was:
"It is my view, having regard to the evidence before me, that [the worker] was employed by NICI and not by [the employer]. I consider the contract of employment to be clear and unambiguous in identifying the parties to the contract."
The location of employment was equally clear:
"From the submissions and evidence provided, the contract of employment was formed and executed by both parties in India. There is no evidence that the contract was formed and executed outside of India."
Protected by the Fair Work Act?
The Commission's conclusion stated:
"[The worker] falls within the exemption in s.35(3) and is therefore not an Australian-based employee under s.35(2) of the Act... I find that [the worker] was not an employee of [the employer], and that he was not an Australian-based employee and as such, the Commission does not have jurisdiction to determine his unfair dismissal application."
This decision provides guidance about when the FWC can hear unfair dismissal cases involving overseas workers.
Working for a subsidiary of an Australian company doesn't automatically give access to Australia's workplace laws, particularly when all work happens overseas.
