Meaning of Australian based employer and Australian based employee
11 January 2020
The meaning of Australian employer and Australian based employee is important because it determines whether an employee can make a claim under employment legislation.
Specifically, the meaning of Australian based is important for a jurisdictional claim.
For example, whether a court has jurisdiction (the authority) to deal with a particular matter.
For example, an employee may claim they are an employee for Fair Work purposes like an unfair dismissal claim and because of this, Fair Work has jurisdiction to deal with the employee's claim.
On the other hand, an employer may claim an employee is not Australian based and is not eligible to make a claim about their employment with the Fair Work Commission. By doing this, the employer is raising a jurisdictional objection.
Below is the definition of Australian based employer and employee.
FAIR WORK ACT 2009 - SECT 35
Meanings of Australian employer and Australian-based employee
(c) is the Commonwealth; or
(d) is a Commonwealth authority; or
(e) is a body corporate incorporated in a Territory; or
(f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or
(g) is prescribed by the regulations.
(a) whose primary place of work is in Australia; or
(c) who is prescribed by the regulations.
Application of section 35 - Meanings of Australian employer and Australian-based employee
In the case of Mr Nabor Fuentes v Department of Foreign Affairs and Trade (U2017/13595), Fair Work found that Mr Fuentes was not an Australian based employee so unfair dismissal provisions in the Fair Work did not apply.
Below are the key points in the case:
- It does not matter if a person is located in Australia or elsewhere, an employee that’s employed by an Australian employer is an “Australian-based employee’.
- Mr Fuentes falls within section 35(2)(b) below but is caught by the exception in section 35(3) below, that is, he was an employee ‘engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.’
Section 35(2) and (3) Fair Work Act 2009 (Cth):
- Mr Fuentes was hired in Canada to perform the duties associated with his role at the Australian High Commission in Ottawa. Also, Mr Fuentes’ employment agreement was signed in Ottawa. And, subsequent renewals of his contract occurred in Ottawa. And Mr Fuentes in fact performed his duties in Canada.
The finding meant that the unfair dismissal provisions in the Fair Work Act did not apply to Mr Fuentes and he was not able to bring an unfair dismissal application under the Act.
From the example above you can see that the meaning of 'Australian based' is important for employment claims in the Fair Work Commission.
Do you have questions or comments about whether an employee is Australian based? Be sure to leave them below.