Amidst the disarray caused by the coronavirus pandemic, there is a general consensus on one key point: remote working’s time has come. Never before have so many workers across so many different industries been working remotely, including many who otherwise would have never considered the option. Meetings, conferences and even staff drinks conducted over Zoom and FaceTime have almost instantaneously become not only accepted, but predominant.
As broadband and videoconferencing technology continues to improve, we can expect the uptake and acceptance of remote working arrangements to accelerate. The contours of the ‘workplace’ of the future are only just beginning to emerge, and it is very unlikely that the pre-COVID corporate status quo will ever be completely restored.
One area where the impact of remote working remains unknown is migration. In Australia, many organisations recruit employees overseas and sponsor them to migrate to Australia. Sponsored skilled migration occurs across a variety of professions and industries, and is driven (in theory) by shortfalls in supply in the domestic labour market. In order for an Australian employer to sponsor a migrant, they must show (among other things) that no suitable Australian employee could be found for the role. The process of sponsorship can be costly, lengthy and uncertain for the employer.
But physical migration is not necessarily the only way for Australian firms to address such shortages. Remote working offers Australian employers the chance to trial, recruit and employ suitable workers from all corners of the globe. Moreover, it may in future become commonplace for Australian employers to recruit foreign employees and have them work remotely for a period of time before they commit to the expense of sponsoring their migration. Or it may be that a portion of Australia’s workforce of the future never works from within its borders. It is of course possible for a foreign worker to work overseas for an Australian organisation and yet never set foot in Australia. As long as they never physically come to Australia, no visa is required.
These arrangements will inevitably raise legal issues. For example, Australian employers (and their foreign employees) should be mindful that merely because an employee is not physically located in Australia does not necessarily mean that the employee does not have the entitlements and protections of the Fair Work Act 2009 (FWA).
As a general rule, if an employment relationship can be shown to have a ‘sufficient connection’ with Australia, then the FWA can apply. Physical location of the employee, and even provisions in the employment contract about its governing law are relevant, but not necessarily determinative. In other words, the FWA could in certain circumstances be held to apply to an employment relationship with a remote international worker, even if:
- The worker never comes to Australia; and/or
- The employment contract stipulates that the law of a different country governs the contract.
The brave new frontier of remote working will inevitably raise complex questions about employment law, migration law and legal liability. Any remote working relationship therefore needs to be carefully considered by both parties and appropriate legal advice sought. Moreover, international remote working arrangements can potentially give rise to complicated taxation liabilities for both employer and employee, and it is strongly recommended that professional accounting advice be sought at the earliest possible time.
How can we help?
Snedden Hall & Gallop has expertise and experience in both employment and migration law, and is available to give legal advice and solutions to both organisations and individuals in these matters. Contact our Migration or Employment team on 02 6285 8000 or by email.