10 February 2026
Using overseas workers for administrative support, such as payroll, scheduling or invoicing can appear cost effective, however location alone does not determine whether Australian employment laws apply.
Under the Fair Work Act 2009, the definitions of an “Australian employee” includes a person employed by an Australian employer even if they are based overseas. Unless the work is genuinely for the benefit of operations outside Australia, offshore workers may still be entitled to Australian pay rates and employment protections.
What about if I engage them as an “Individual Contractor”?
Calling a worker an “independent contractor” will not automatically prevent a finding of employment. Where a worker has set hours, ongoing duties, work is supervised or is integrated into the day-to-day operations, they may be found to be an employee regardless of their location.
These risks were highlighted in Pascua v Doessel Group Pty Ltd (2024), where the Commission found that a Philippines-based worker engaged as a contractor was in fact an employee, providing access to an unfair dismissal claim that resulted in the Applicant receiving approximately $11,000 in compensation.
Construction employers should take proactive steps to mitigate exposure, including:
- Review the true nature of the relationship, not just the contract label
- Avoid treating workers like employees (fixed hours, performance management, internal reporting lines)
- Use short term, project-based scopes of work, rather than ongoing indefinite arrangements
- Ensure contracts reflect genuine contractor terms, including the right to work for other businesses
- Engage through reputable labour hire or outsourcing providers with compliant frameworks
- Seek advice early, contact the Master Builders Workplace Relations team.
Missteps can result in backpay claims, unfair dismissal exposure, superannuation liabilities and civil penalties — risks that can quickly outweigh any perceived savings.
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