Latest Fair Work Cases Rule Against Aussie Businesses And Change Offshoring Forever

Australian business owners face urgent warnings to review their offshore worker arrangements following another Fair Work Commission case. The decision challenges the assumption that hiring overseas contractors keeps them outside Australian employment law.

Outsourcing expert and Orbii founder Ivan Trajkovski said Australian businesses engaging overseas workers need to act now.

“Australian businesses are under attack, make no mistake about it. If you engage overseas workers, the Fair Work Commission’s latest case shows that it will punish businesses for trying to cut costs and force them to pay offshore workers Australian wages, superannuation and leave benefits,” Trajkovski said.

The warning follows Digo v BikesOnline Australia. The Commission found that a Philippines-based accountant was an employee and an Australian-based employee. She had never visited Australia. The finding allowed her dismissal-related application to proceed.

The decision follows Pascua v Doessel Group. In that case, the Commission found that a Philippines-based legal assistant was an employee despite working under a contractor agreement.

“Business owners need to understand that under Australian law, offshore contractors are now considered to be your employees,” Trajkovski said.

“You might be paying invoices, using a contractor agreement and dealing with someone thousands of kilometres away. None of that automatically means Australian workplace law cannot reach the arrangement.

“Business owners need to understand that offshore workers are now a huge risk unless the arrangement is set up properly to protect the business.

“My strong advice is to act now. Tens of thousands of businesses across the country are now at risk.”

They Have Never Entered Australia, and Your Business Could Still Face a Claim

Trajkovski said the latest Fair Work Commission cases should concern businesses that directly engage overseas workers. This includes businesses that manage offshore contractors like local employees.

In the BikesOnline case, the Commission examined working hours, task direction, leave approval, performance reviews and payments linked to timesheets. It also considered where the parties formed the agreement. That location mattered when deciding whether Digo was an Australian-based employee.

The ruling allowed the application to proceed. However, it did not determine whether the dismissal itself was unlawful.

“If you set someone’s hours, approve their leave, review their performance and control their daily work, you need to look beyond the contractor label,” Trajkovski said.

“A business owner might think they have purchased an overseas service however, the working relationship could tell a very different story.

“That misunderstanding can leave a business facing proceedings, legal costs and management disruption it never budgeted for.”

Your Contract May Not Protect You the Way You Think

Section 15AA of the Fair Work Act requires consideration of how a working relationship operates in practice. Contract terms also matter when determining employment status where the provision applies.

Trajkovski warned businesses against downloading a contractor agreement, adding an overseas address and assuming they had met their compliance obligations.

“The document might say independent contractor on every page. That does not settle the question,” he said.

“Businesses need to understand what is happening every working day, who controls the work and how the arrangement connects to Australia.

“A cheap hiring decision can become an expensive dispute when nobody has checked the structure.”

Review the Arrangement Before You End It

Trajkovski urged businesses to review long-term offshore engagements now. He stressed the need for a review before dismissing workers or making major changes to their arrangements. Businesses should also seek qualified employment law advice when their obligations remain unclear.

He said he works with Australian businesses every day to establish suitable structures and manage local employment obligations. Importantly, using an intermediary or overseas platform does not automatically remove the risk.

“Offshoring can deliver enormous value, but the savings need to sit on a properly understood arrangement,” Trajkovski said.

“Do not wait for a dispute to find out that the contractor you thought you hired may legally be your employee. The Fair Work Commission’s latest cases are opening the floodgates, and businesses are facing obliteration if they don’t act.”

About Orbii

Orbii is Australia’s independent outsourcing comparison and matching platform, helping businesses confidently navigate offshore outsourcing. Founded by outsourcing expert Ivan Trajkovski, Orbii uses intelligent matching technology and more than 20 years of industry experience to connect businesses with the right outsourcing providers.

Often described as the outsourcing industry’s equivalent of Compare the Market or iSelect, Orbii is bringing greater trust, transparency and accountability to the global outsourcing sector by helping businesses reduce risk, access world-class talent and make informed outsourcing decisions.

Based in Melbourne, Orbii’s mission is to remove the guesswork from outsourcing and make it simple, trusted and accessible for every business.

For more information, visit www.orbii.co.