This extract from a decision of the Fair Work Commission deals with the issue of when the Fair Work applies to the employment of an employee employed overseas, in this case New Zealand.
“Whether Part 3-2 (Unfair Dismissal) Fair Work Act applies
[17] The first issue to determine is whether Part 3-2 (Unfair Dismissal) of the Act actually
applies to the applicant in relation to the dismissal. As noted above, the applicant was resident
in New Zealand and performed work in New Zealand.
[18] In Doessel Group Pty Ltd v Joanna Pascua [2025] FWCFB 43 (21 February 2025)
(Pascua), a Full Bench of the Commission set out the provisions of the Act relating to the
territorial operation of Part 3-2 (Unfair Dismissal). The Full Bench observed that the operation
of those provisions is such that “Part 3-2 is extended to operate with respect to any Australian based
employee in relation to the employee’s Australian employer without territorial
limitation” (see Pascua at [39]).
[19] The meaning of the terms “Australian-based employee” and “Australian employer” is
set out in s 35 of the Act, which provides as follows:
35 Meanings of Australian Employer and Australian-based employee
(1) An Australian employer is an employer that:
(a) is a trading corporation formed within the limits of the Commonwealth
(within the meaning of paragraph 51(xx) of the Constitution); or
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(b) is a financial corporation formed within the limits of the Commonwealth
(within the meaning of paragraph 51(xx) of the Constitution); or
(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.
(2) An Australian – based employee is an employee:
(a) whose primary place of work is in Australia; or
(b) who is employed by an Australian employer (whether the employee is
located in Australia or elsewhere); or
(c) who is prescribed by the regulations.
(3) However, paragraph (2)(b) does not apply to an employee who is engaged outside
Australia and the external Territories to perform duties outside Australia and the
external Territories.
[20] It is clear that the respondent is an “Australian employer” with the meaning of s 35(1)
of the Act. The respondent is an employer which is a trading corporation formed within the
limits of the Commonwealth within the meaning of paragraph 51(xx) of the Australian
Constitution.
[21] The applicant meets the primary definition of an “Australian-based employee” set out
in s 35(2)(b) of the Act as he is employed by an Australian employer being the respondent.
However, the applicant would not be an “Australian-based employee” if he is an employee
“engaged outside Australia or the external Territories to perform duties outside Australia and
the external Territories” (s 35(3)).
[22] For an employee, who otherwise falls within the definition of being an “Australianbased
employee” by operation of s 35(2)(b), to be excluded by s 35(3), that employee must
have both been “engaged outside Australia” and engaged to perform work outside Australia
and its external Territories (See Munjoma v Salvation Army (NSW) Property Trust as Trustee
for the Social Work [2013] FWC 3337 (Munjoma)1.
[23] Therefore it is necessary for me to consider whether the applicant falls within both limbs
of the exclusion in s 35(3).
[24] In relation to the first limb, it is apparent that the applicant is engaged to perform work
outside Australia and its external territories. He was resident in New Zealand and engaged to
sell the respondent’s products in New Zealand to New Zealand customers. To the extent that he
performed any work in Australia or directed to Australian customers, it is my view that such
work is merely incidental and insubstantial and not sufficient (See Cohen v iSOFT Group Pty
Limited [2013] FCAFC 49 at [54]). Therefore, the applicant falls with the first limb of the
exclusion in s 35(3).
[25] However, as noted above, the applicant will not fall within the exclusion in s 35(3),
unless he also falls within the second limb being that he was engaged outside Australia. It is
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clear that the current state of the case law is such that the issue of whether the applicant is
engaged outside Australia requires analysis and determination of the place where the contract
of employment was formed (see Pascua at [45] – [49] and the authorities referred to therein).
[26] The formation of a contract of employment requires analysis and consideration of the
geographic location of the elements of offer and acceptance. The evidence around this subject
matter was a little bit unclear. Neither of the parties was able to provide a very clear sequence
of the supply and exchange of the contractual document being the Employment Agreement. In
that regard, I do note that the parties in their filings have supplied two separate copies of the
document constituting the Employment Agreement.
[27] The applicant supplied a copy of the Employment Agreement which was signed by him
and him only on the 8th of December 2024. The respondent supplied a copy where most pages
of the contract were signed by the applicant on 10 September 2024 with one page, being
Schedule 2, signed by and dated by him on 12th of September 2024, with the respondent signing
on 10th of September 2024. The two copies are relevantly identical, except that the applicant’s
version gave a start date of 9 September 2024 and the respondent’s version gave a start date of
16 September 2024.
[28] During the course of the Determinative Conference the respondent also provided two
separate email chains, which contain various parts of email exchanges between the parties
regarding the execution of the Employment Agreement.
[29] As best as one can piece this rather unsatisfactory evidence together, it seems apparent
that the operable contract was the Employment Agreement supplied by the respondent. In that
regard, the offer was made by the respondent to the applicant by the sending via email of an
unsigned Employment Agreement. The applicant then signed the Employment Agreement and
the main signature page on 10 September 2024. He appears to have omitted to sign the Schedule
2 page by oversight and signed each other page where signature was required on the 10
September 2024. He then emailed the Employment Agreement to the respondent, and the
respondent appears to have then identified some omission in terms of the signing of the schedule
2 page. The respondent otherwise signed the document on the 10 September 2024. It appears
that thereafter it resent the executed copy to the applicant and the applicant then signed the
Schedule 2 page on the 12 September 2024.
[30] The relevant legislation regarding acceptance of an offer by way of electronic
communication is the Electronic Transactions Act 2000 (Vic) and also the comparable
legislation being the Electronic Transactions Act 1999 (Cth). Relevantly, the effect of both
pieces of legislation is that the place of receipt of a document is the place where the contract is
made (s13B of both Acts).
[31] It seems that the offer was made by the respondent, the applicant accepted the offer by
sending of the email on the 10 September 2024 and the act of acceptance occurred upon receipt
by the respondent of the email from the applicant to the respondent on 10 September 2024. So,
the formation of the contract occurred in Victoria, Australia on the 10 September 2024.
[32] Consequently, in my view, the applicant was not engaged outside Australia because the
contract was formed in Australia. The applicant does not fall within the second limb of the
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exclusion in s 35(3). Consequently, the effect of this is that the exclusion in s 35(3) does not
operate because the applicant does not meet both of the two limbs of the exclusion. Noting that
the applicant otherwise falls then within the primary definition of an “Australian-based
employee” within s 35(2) of the Act, it seems apparent that Part 3-2 of the Act does apply to the
applicant.”
Sanderson v Brightest Australia 2026 FWC 1633 delivered 6 May 2026 per Farouque DP