In a previous article, we analysed the impact of the FairWork Pascua decision, where the Fair Work Commission clarified that the substance of a working arrangement matters much more than the label attached to it.
Initial Decision
New Developments
The Dossel Group Pty Ltd appealed the 2024 decision, arguing that the Deputy President’s conclusion was factually incorrect and that the Fair Work Commission had no jurisdiction over a case where the applicant was a Philippine national who had never worked in Australia nor did she hold a work visa enabling her to work in Australia.
On appeal, the Full Bench of the Fair Work Commission did permit the Dossel Group’s appeal that Part 3-2 of the Fair Work Act could not apply to employees of Australian employers performing work overseas.
The Full Bench endorsed the conclusion of the Deputy President in determining that Ms Pascua and the Doessel Group were in an employment relationship [2025] FWCFB 43
Takeaways
Operational Adjustments
Cross-Border Implications
Practical Recommendations for Businesses
- Conduct a comprehensive audit of contractual terms and everyday management practices for all offshore engagements, including evaluating whether the level of operational control inadvertently creates an employment relationship.
- Engage with lawyers to realign contracts and practices with legislative requirements.