YOUR OFFSHORE STAFF MAY BE “EMPLOYEES” UNDER AUSTRALIAN LAW
They can be. In Pascua v Doessel Group, the Fair Work Commission found that a Philippines-based paralegal engaged by a Queensland law firm as an “independent contractor” was in fact an employee. She went on to win her unfair dismissal claim and was awarded $10,800. Five more decisions in 2026 show the outcome can turn on details as small as where a job offer was accepted.
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THE CASE THAT CHANGED OFFSHORE ENGAGEMENTS
What the Fair Work Commission decided
In Pascua v Doessel Group, a Philippines-based paralegal worked for a Queensland law firm under an “Independent Contractor’s Agreement”. Three decisions followed.
THE WORKER
Paralegal, Philippines
Engaged as an “independent contractor”
Worked remotely for a Queensland law firm, on Australian business hours, using the firm’s systems and email.
$18 an hour
Australian hours
Firm email address
$10,800
awarded for unfair dismissal, about 15 weeks’ pay
THREE DECISIONS
1
[2024] FWC 2669 · 2024
She was an employee, not a contractor
Despite the contractor agreement, the Commission found an employment relationship.
2
[2025] FWCFB 43 · 26 February 2025
The firm’s appeal was refused
A Full Bench found no error in treating her as an employee.
3
[2025] FWC 1833 · 27 June 2025
She was unfairly dismissed
The Commission awarded $10,800, about 15 weeks’ pay.
Why she was an employee, not a contractor
Directed, like staff
Set Australian business hours, files allocated daily, KPIs and set timeframes.
Part of the firm
A firm email address and signature presenting her as the firm’s paralegal.
Paid below the award
$18 an hour, under the award rate for the role. Genuine contractors usually earn more, not less.
The label on the contract didn’t decide the case. How the work actually happened did.
Since 26 August 2024, section 15AA of the Fair Work Act has required the practical reality of a working relationship to be considered.
FAIR WORK COMMISSION · 2026 CASE NOTES
Five more decisions from 2026
Under section 35 of the Fair Work Act, an employee of an Australian employer can be covered even when they work overseas. Between April and June 2026, the Commission looked at five overseas workers.
✓
✓
✕
✕
✕
2
Australian-based employees
Covered, even though they lived and worked overseas.
3
Outside the Fair Work Act
Engaged and working entirely offshore.
THE TEST
Three questions the Commission asks
1
Employee or contractor?
The label in the contract doesn’t decide it. The real relationship does.
2
Is the employer Australian?
If so, its offshore staff can be Australian-based employees.
3
Engaged and working outside Australia?
The worker is excluded only if both are true.
THE DECIDING FACTOR
Where the job offer was accepted can matter more than where the work is done
Accepted by email, received in Australia
1 The worker, overseas, emails their acceptance
2 It’s received at the employer’s Australian office
3 The contract is formed in Australia
COVERED
Seen in Sanderson and Gamao
Accepted overseas, during the interview
1 The offer is made in a final online interview
2 The worker accepts on the spot, in the Philippines
3 The contract is formed offshore
NOT COVERED
Seen in Benitez
THE DECISIONS
Five cases at a glance
2
Covered
Found to be Australian-based employees
Sanderson v Brightest Australia
[2026] FWC 1633 · 6 May 2026
✓
Worked: New Zealand
Contract formed: Victoria
He lived and sold in New Zealand, but his emailed acceptance was received in Victoria, so he was engaged in Australia.
Gamao v Appetiser
[2026] FWC 2315 · 26 June 2026
✓
Worked: mostly overseas
Contract formed: Australia
Labelled a contractor, but found to be an employee. Her claim still failed: after a restructure, Appetiser wasn’t the entity that dismissed her.
3
Not covered
Found to be outside the Fair Work Act
Pe v Satellite Office Solutions & Pepperstone
[2026] FWC 2068 · 4 June 2026
✕
Worked: Philippines
Contract formed: Philippines
Worked for entities in an Australian corporate group, but was engaged and worked only in the Philippines.
Benitez v Axis Corporate Health
[2026] FWC 2074 · 4 June 2026
✕
Worked: Philippines
Contract formed: Philippines
No written contract: he accepted the offer at his final online interview, from the Philippines. An Australian employer alone wasn’t enough.
Qasrawi v Melbourne Polytechnic
[2026] FWC 1450 · 22 April 2026
✕
Worked: China
Employer: Chinese company
Taught in China for a Chinese employer. Claims that Melbourne Polytechnic was the true employer were rejected, and a Full Bench refused an appeal.
WHAT IT MEANS FOR YOU
Four lessons for Australian businesses
The 2026 decisions point to four things to check in how your offshore team is engaged.
Labels don’t decide it
Calling someone a contractor didn’t stop the Commission finding an employee.
Your inbox can be the place of engagement
An offer accepted by email and received in Australia was formed in Australia.
Working offshore isn’t a shield
The exclusion needs both: engaged outside Australia and working outside Australia.
The employing entity matters
Who actually employed the worker shaped the outcome in Gamao and Qasrawi.
COULD THIS HAPPEN TO YOU?
Do your offshore staff:
Work set hours aligned to your Australian business hours
Use your systems, tools and company email
Receive daily instruction and supervision by your Australian team
Not have the ability to delegate or subcontract their work
If several of these apply, they may already be employees under Australian law, exposing you to unfair dismissal claims and to claims for minimum wages, leave and back-pay.
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FAQ
Questions Australian businesses ask
Can Australian employment law apply if my staff work from the Philippines?
It can. In Pascua, the Commission heard and upheld an unfair dismissal claim from a worker based in the Philippines. Whether it applies to your team depends on how the work is done, so get advice on your situation.
Is a contractor agreement enough to protect my business?
No. The Commission looks at how the relationship works in practice, not what the contract calls it.
Does it matter where my offshore worker accepted the job?
It can. A contract accepted by email is formed where the acceptance is received, so a worker who has never been to Australia can still be engaged here, as in Sanderson and Gamao.
Will my team’s pay and conditions change if they move to TalentBridge?
No. We lift and shift their existing employment conditions and benefits, and they keep working for you as they do now.
How long does a transition take?
Most transitions take 4 to 8 weeks, without disrupting your team’s work.
What does it cost?
Employer of Record starts from AUD 95 per person per month, invoiced monthly in Australian dollars.
“TalentBridge made the transition of our 12- person offshore team safe and easy. Now we scale confidently without the risk or the stress.”
CPA firm, Queensland
“Very happy I am no longer exposed to the FWC ruling. My team transitioned seamlessly as their existing employment conditions were lifted and shifted into TalentBridge's EoR solution — no risk, and hassle free.”
Mortgage Broker, NSW
This content is general information only and is not legal advice. Australian businesses engaging offshore workers should seek independent legal or employment-law advice on their own circumstances. Pascua v Doessel Group and the 2026 decisions show the risk but do not predict the outcome of any other case.
© 2026 by TalentBridge Pty Ltd