Employees working overseas may have entitlements under the national workplace relations system if they’re an Australian-based employee.

What entitlements an employee has will depend on whether:

• their employer is an Australian employer
• their employer is a non-Australian employer, and
• an enterprise agreement applies.

Whether an employee working overseas is classified as Australian-based or otherwise depends on the individual circumstances. We recommend seeking independent advice if you are engaging employees who will work overseas, or you are an employee with questions on this.

Australian-based employee

An Australian-based employee is any employee whose primary place of work is in Australia. These employees can perform some work overseas and still be considered Australian-based.

An Australian-based employee is also an employee who was engaged in Australia, is employed by an Australian employer, but performs their work overseas. These employees must have been engaged in Australia and may also perform some work in Australia.

Example: Engaged in Australia

In Australia, Evie responds to an advertisement to work as an English teacher in Chile.

Evie interviews for the position and accepts her employment contract in Australia. She then travels to Chile to start work as an English teacher for her Australian employer.

Evie is engaged in Australia.

Australian employer

Broadly speaking, an Australian employer is an employer that:

• is an Australian trading corporation or financial corporation (but not a foreign corporation)
• is the Commonwealth or a Commonwealth authority
• is a body corporate incorporated in a Territory of Australia
• carries on an activity in Australia, in the exclusive economic zone or in the waters above the continental shelf and whose central management and control is in Australia, or
• employs a crew member who performs duties on a majority Australian-crewed ship.

Non-Australian employer

A non-Australian employer is any employer that is not an Australian employer. For example, a foreign corporation.

Australian-based employee entitlements

Australian-based employee’s entitlements may include:

• the National Employment Standards
• awards and enterprise agreements
• workplace determinations
• minimum wages
• equal remuneration
• transfer of business
• payment of wages
• guarantee of annual earnings
• industrial action
• general protections
• unfair dismissal (must be an Australian employer)
• stand down (must be an Australian employer).

Australian-based employees of Australian employers may be entitled to all of the entitlements listed above.

Australian-based employees of non-Australian employers

Where an enterprise agreement applies, Australian-based employees of non-Australian employers may be entitled to all of the above except unfair dismissal and stand down.

Where no enterprise agreement applies, Australian-based employees of non-Australian employers may be entitled to workplace determinations, industrial action and general protections only.

Australian-based employees and overseas workplace laws

Employees who work overseas may have workplace entitlements under the laws of the countries where they work and where their employer is incorporated. You should seek your own independent advice if this applies to you.

Employees engaged overseas by an Australian employer

Whether an employee working overseas is an Australian-based employee will depend on the particular circumstances including where the employment contract was formed.

If this applies to you as an employer or employee, we recommend that you seek your own independent advice regarding your circumstances.

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