The Fair Work Act 2009 (Cth) (FW Act) will apply outside the territorial limits of the Commonwealth, in connection with Australian employers and Australian-based employees.

An Australian-based employee is an employee whose primary place of work is in Australia and who is employed by an Australian employer.

The FW Act will not apply if:

a) the employee was engaged outside Australia and the external territories; and

b) the engagement is to perform duties outside Australia and the external territories.

The first element (a) is resolved by the place where the employment contract is made. The second element is resolved by the place where the employee is obliged to perform work under the employment contract.

In Gautam Parimoo v Lake Resources N.L (2023), the applicant had lodged a general protections claim involving dismissal. The employer lodged a jurisdictional objection, claiming, “the applicant was engaged outside Australia, to perform duties outside Australia, and was therefore not an Australian-based employee entitled to protection”.

The applicant was US citizen who was born in India. He was recruited for the position of Chief Operating Officer by an Australian public company to perform work as a project director in a lithium mines in Catamarca, Argentina. The company had its principal office in Sydney.

The recruitment process involved a number of online interviews conducted between the applicant (who attended from overseas via an online video conferencing platform) and employees of the company (who attended from Sydney and Perth).

The applicant electronically signed an employment agreement and returned it by email to the Sydney office. The agreement expressly stated that it was to be governed and construed in accordance with the laws of New South Wales, Australia.

In January 2023, the applicant was dismissed, effective immediately, with payment in lieu of notice. The worker lodged a general protections application with the Fair Work Commission (FWC). The company then raised its jurisdictional objection.

The applicant’s duties under his contract were to be performed wholly in Argentina. The question before the FWC was whether the worker could have been said to have been “engaged outside Australia”, as is required by the first element of the exemption.

The FWC ruled the employer’s employment offer was not accepted until the applicant’s acceptance was communicated to the employer. This was done by the employee emailing the signed copy of the employment contract to the employer, where it was received at its registered business address in Canberra. Therefore, the contract of employment was made in Australia and the applicant was as an Australian-based employee employed by an Australian employer. It followed that the general protections application fell within the jurisdiction of the FWC.