Are expatriate employees covered by Australian laws?

Q&A

Are expatriate employees covered by Australian laws?

Today’s global business environment has made it more common for employees to work in different countries. Are overseas employees working in Australia covered by Australian employment laws?

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Today’s global business environment has made it more common for employees to work in different countries. Are overseas employees working in Australia covered by Australian employment laws?
 
This question was recently sent to our Ask an Expert service.
 
Q  Our Brisbane-based company recently acquired a New Zealand company. A number of these employees will be performing work in Australia over the next 12 months as part of a transitional arrangement in connection with the purchase. Their contracts of employment reflect NZ employment law and we intend to ask them to sign a declaration that their conditions of employment will not be subject to Australian law during their employment in Australia.
 
We are a wholly-owned Australian company and the NZ entity is wholly owned by our company. Some senior managers have concerns about the arrangement. Will any Australian employment laws apply to these employees?
 
A  Yes. Australian employment laws will apply to these employees because they are exercising employment in Australia. It is not possible to ‘contract out’ of the application of local employment laws even if the employee’s contract of employment specifies a foreign jurisdiction as being the applicable law.
 
This means legislation such as the Fair Work Act, applicable equal opportunity legislation, the relevant state or territory workers compensation law and workplace health and safety law, amongst other state and territory employment laws, will be binding upon the employer and the employees.
 
Long service leave law
 
While not relevant in this particular case, if an employee is transferred to Australia for a lengthy period, he or she may also qualify for long service leave under the relevant state or territory legislation.
 
For example, under Queensland long service leave provisions, an employee is entitled to pro rata long service leave payment on termination after completing seven years continuous service with the employer if the employee terminates for reasons of illness or incapacity or domestic or other pressing necessity, or if the employer terminates for a reason other than the employee’s conduct, capacity or performance or the employer unfairly dismisses the employee.
 


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