2 days ago
When foreign 'contractors' are considered to be employees
The world is now a global village. Remote work means anyone with a laptop can work from anywhere-customer support in the Philippines, accounting in Mumbai, virtual assistants in Vietnam. Hiring offshore talent has never been easier for Australian businesses. Everywhere I go, people rave about their overseas assistants - brilliant, cheap, and indispensable.
But here's the wake-up call: a Fair Work Commission (FWC) ruling has made it clear that just because your workers live overseas doesn't mean Australian employment laws don't apply.
The case involved Joanna Pascua, a paralegal in the Philippines working for Brisbane-based Doessel Group. On paper she was an "independent contractor" earning $18 an hour - well under our minimum wage. But she kept Queensland hours, dealt directly with Aussie banks, and had no other clients. The FWC decided she was actually an employee, which meant she was entitled to all the usual protections under the Fair Work Act, including minimum wage and the right to claim unfair dismissal.
The ruling has rattled plenty of small businesses who thought hiring offshore gave them a clean break from Australia's complex industrial relations system: no super, no payroll tax, no award wage - just a contract and a timesheet. Well, not anymore.
As Amanda Lyras, a partner at law firm Clayton Utz, explained:
"The application of the Fair Work Act to foreign workers is somewhat complex, but it is important for businesses to be aware that the employee protections under the Act can extend to a worker who is based outside Australia."
She warned that simply calling someone an independent contractor won't wash, especially under recent Closing Loopholes reforms.
"Following the reforms, it is not possible to rely on a well-drafted contract alone in establishing that a worker is an independent contractor."
In the end, it's the practical reality of the relationship that counts. Do they report to a manager? Do they have set hours? Are they prevented from taking on other work? Were they engaged in Australia by an Australian employer? If the answer is yes, the law is likely to see them as employees, no matter where in the world they sit.
That's exactly what happened here. The FWC decided Pascua was, in practice, just like any local staff member. The contract said "contractor", but the day-to-day reality said otherwise. She was engaged in Australia, worked fixed hours, reported directly to her boss, and did core work for the company: all the hallmarks of an employee.
Graham Doessel, the company's founder, argued that forcing Australian minimum wages onto overseas hires could crush small businesses. "Thousands of small operators just can't afford to pay Australian rates," he said.
That may be true, but as the Commission pointed out, affordability doesn't trump the law. Which leaves a big question for business owners: what now?
Lyras advises companies to think carefully about how and why they're engaging foreign workers:
"It may be more appropriate for them to be engaged by a foreign company in the group or a foreign employer of record. Businesses should give careful consideration to how the arrangement should be structured."
She also stressed that regular reviews are important:
"We encourage our clients to have a robust process that properly characterises workers... and implement regular checkpoints to monitor changes."
Offshore hiring can be smart and life-changing, but it's no loophole. If your "contractor" works like an employee, the law will treat them like one. Get proper advice and structure it right - or risk a nasty surprise.
Question: I am 82 and own a negatively geared rental property, which I had originally intended to leave to my son under my will. However, I am now considering transferring the property to him during my lifetime. I understand that capital gains tax would be payable based on the property's current market value, less any eligible deductions. Could you please clarify what expenses may be used to reduce the CGT liability? Also, is gift duty applicable, and would stamp duty be payable even though no money will change hands? The property was purchased for $105,000 in 1992 and is now valued at approximately $780,000. Once transferred, it will become my son's principal place of residence. Could you advise how the transfer should be structured, given that no payment will be made
Answer: The cost base includes your original purchase price, plus costs like stamp duty, legal fees, and any renovation expenses you didn't claim as tax deductions. Because you've owned the property for a long time, you'll qualify for a 50% CGT discount. From what you've told me, your net profit after the discount would be about $300,000. This would be added to your taxable income in the year you sign the sales contract. Depending on your other income, your CGT bill could be around $120,000. Given your son plans to live in the house long-term, it might be better to leave it to him in your will. That way, no CGT is triggered now - it would only arise when he eventually sells, and it could be reduced if the property is his home. If you're worried about challenges to your will, you could transfer 50% of the property to him now as a joint tenant. The rest would pass to him automatically when you die, and transferring only half now would mean a smaller CGT hit.
Question: If I receive a lump sum payment as part of a genuine redundancy - specifically for unused annual leave and accrued long service leave (Type A) - is this treated as assessable income for tax purposes? And if so, can I offset the tax by making a concessional super contribution before the end of that same financial year?
Answer: Yes, a unused leave payments received as a lump sum is assessable income for tax purposes. However, where it has been received as a result of genuine redundancy, these leave payments will be subject to concessional tax rates. In these circumstances, unused annual and long service leave payments accrued on or after 16 August 1978 are subject to a maximum tax rate of 30% (plus 2% Medicare levy). If you have not used up your concessional contributions cap, you could consider making tax deductible concessional super contributions to reduce your assessable income and offset some or all of the tax on the unused leave payments.
Question: I wonder if you'd consider helping those of us Australians trying to safely transfer funds into CoinSpot - one of the best-known, most-used, and highly respected Australian crypto exchanges. While Westpac allows transactions to CoinSpot, Macquarie has banned them. Staff insist they're "protecting customers" by preventing us from using our own funds to invest in so-called "unsafe" assets like crypto. I've been told there's no one at the bank I can speak to about reversing this decision. De-banking customers in this way is hardly an example of great service. It forces us to leave cash on exchanges and requires older Australians like me to open and juggle multiple bank accounts. Frankly, it's a paternalistic and heavy-handed form of control. Can you be a voice for us?
Answer: A Macquarie Bank spokesperson says "Unfortunately, cryptocurrency exchanges are frequently used by scammers to obtain funds from their victims and so present a high scam and fraud risk. To help protect our customers from the risk of scams, we block payments to BSBs that we assess as being high-risk, predominantly where they house accounts belonging to cryptocurrency exchanges. This decision aligns with our commitment to help ensure the security of customer payments and protect against fraud and scams." I guess your only option is to use Westpac.
The world is now a global village. Remote work means anyone with a laptop can work from anywhere-customer support in the Philippines, accounting in Mumbai, virtual assistants in Vietnam. Hiring offshore talent has never been easier for Australian businesses. Everywhere I go, people rave about their overseas assistants - brilliant, cheap, and indispensable.
But here's the wake-up call: a Fair Work Commission (FWC) ruling has made it clear that just because your workers live overseas doesn't mean Australian employment laws don't apply.
The case involved Joanna Pascua, a paralegal in the Philippines working for Brisbane-based Doessel Group. On paper she was an "independent contractor" earning $18 an hour - well under our minimum wage. But she kept Queensland hours, dealt directly with Aussie banks, and had no other clients. The FWC decided she was actually an employee, which meant she was entitled to all the usual protections under the Fair Work Act, including minimum wage and the right to claim unfair dismissal.
The ruling has rattled plenty of small businesses who thought hiring offshore gave them a clean break from Australia's complex industrial relations system: no super, no payroll tax, no award wage - just a contract and a timesheet. Well, not anymore.
As Amanda Lyras, a partner at law firm Clayton Utz, explained:
"The application of the Fair Work Act to foreign workers is somewhat complex, but it is important for businesses to be aware that the employee protections under the Act can extend to a worker who is based outside Australia."
She warned that simply calling someone an independent contractor won't wash, especially under recent Closing Loopholes reforms.
"Following the reforms, it is not possible to rely on a well-drafted contract alone in establishing that a worker is an independent contractor."
In the end, it's the practical reality of the relationship that counts. Do they report to a manager? Do they have set hours? Are they prevented from taking on other work? Were they engaged in Australia by an Australian employer? If the answer is yes, the law is likely to see them as employees, no matter where in the world they sit.
That's exactly what happened here. The FWC decided Pascua was, in practice, just like any local staff member. The contract said "contractor", but the day-to-day reality said otherwise. She was engaged in Australia, worked fixed hours, reported directly to her boss, and did core work for the company: all the hallmarks of an employee.
Graham Doessel, the company's founder, argued that forcing Australian minimum wages onto overseas hires could crush small businesses. "Thousands of small operators just can't afford to pay Australian rates," he said.
That may be true, but as the Commission pointed out, affordability doesn't trump the law. Which leaves a big question for business owners: what now?
Lyras advises companies to think carefully about how and why they're engaging foreign workers:
"It may be more appropriate for them to be engaged by a foreign company in the group or a foreign employer of record. Businesses should give careful consideration to how the arrangement should be structured."
She also stressed that regular reviews are important:
"We encourage our clients to have a robust process that properly characterises workers... and implement regular checkpoints to monitor changes."
Offshore hiring can be smart and life-changing, but it's no loophole. If your "contractor" works like an employee, the law will treat them like one. Get proper advice and structure it right - or risk a nasty surprise.
Question: I am 82 and own a negatively geared rental property, which I had originally intended to leave to my son under my will. However, I am now considering transferring the property to him during my lifetime. I understand that capital gains tax would be payable based on the property's current market value, less any eligible deductions. Could you please clarify what expenses may be used to reduce the CGT liability? Also, is gift duty applicable, and would stamp duty be payable even though no money will change hands? The property was purchased for $105,000 in 1992 and is now valued at approximately $780,000. Once transferred, it will become my son's principal place of residence. Could you advise how the transfer should be structured, given that no payment will be made
Answer: The cost base includes your original purchase price, plus costs like stamp duty, legal fees, and any renovation expenses you didn't claim as tax deductions. Because you've owned the property for a long time, you'll qualify for a 50% CGT discount. From what you've told me, your net profit after the discount would be about $300,000. This would be added to your taxable income in the year you sign the sales contract. Depending on your other income, your CGT bill could be around $120,000. Given your son plans to live in the house long-term, it might be better to leave it to him in your will. That way, no CGT is triggered now - it would only arise when he eventually sells, and it could be reduced if the property is his home. If you're worried about challenges to your will, you could transfer 50% of the property to him now as a joint tenant. The rest would pass to him automatically when you die, and transferring only half now would mean a smaller CGT hit.
Question: If I receive a lump sum payment as part of a genuine redundancy - specifically for unused annual leave and accrued long service leave (Type A) - is this treated as assessable income for tax purposes? And if so, can I offset the tax by making a concessional super contribution before the end of that same financial year?
Answer: Yes, a unused leave payments received as a lump sum is assessable income for tax purposes. However, where it has been received as a result of genuine redundancy, these leave payments will be subject to concessional tax rates. In these circumstances, unused annual and long service leave payments accrued on or after 16 August 1978 are subject to a maximum tax rate of 30% (plus 2% Medicare levy). If you have not used up your concessional contributions cap, you could consider making tax deductible concessional super contributions to reduce your assessable income and offset some or all of the tax on the unused leave payments.
Question: I wonder if you'd consider helping those of us Australians trying to safely transfer funds into CoinSpot - one of the best-known, most-used, and highly respected Australian crypto exchanges. While Westpac allows transactions to CoinSpot, Macquarie has banned them. Staff insist they're "protecting customers" by preventing us from using our own funds to invest in so-called "unsafe" assets like crypto. I've been told there's no one at the bank I can speak to about reversing this decision. De-banking customers in this way is hardly an example of great service. It forces us to leave cash on exchanges and requires older Australians like me to open and juggle multiple bank accounts. Frankly, it's a paternalistic and heavy-handed form of control. Can you be a voice for us?
Answer: A Macquarie Bank spokesperson says "Unfortunately, cryptocurrency exchanges are frequently used by scammers to obtain funds from their victims and so present a high scam and fraud risk. To help protect our customers from the risk of scams, we block payments to BSBs that we assess as being high-risk, predominantly where they house accounts belonging to cryptocurrency exchanges. This decision aligns with our commitment to help ensure the security of customer payments and protect against fraud and scams." I guess your only option is to use Westpac.
The world is now a global village. Remote work means anyone with a laptop can work from anywhere-customer support in the Philippines, accounting in Mumbai, virtual assistants in Vietnam. Hiring offshore talent has never been easier for Australian businesses. Everywhere I go, people rave about their overseas assistants - brilliant, cheap, and indispensable.
But here's the wake-up call: a Fair Work Commission (FWC) ruling has made it clear that just because your workers live overseas doesn't mean Australian employment laws don't apply.
The case involved Joanna Pascua, a paralegal in the Philippines working for Brisbane-based Doessel Group. On paper she was an "independent contractor" earning $18 an hour - well under our minimum wage. But she kept Queensland hours, dealt directly with Aussie banks, and had no other clients. The FWC decided she was actually an employee, which meant she was entitled to all the usual protections under the Fair Work Act, including minimum wage and the right to claim unfair dismissal.
The ruling has rattled plenty of small businesses who thought hiring offshore gave them a clean break from Australia's complex industrial relations system: no super, no payroll tax, no award wage - just a contract and a timesheet. Well, not anymore.
As Amanda Lyras, a partner at law firm Clayton Utz, explained:
"The application of the Fair Work Act to foreign workers is somewhat complex, but it is important for businesses to be aware that the employee protections under the Act can extend to a worker who is based outside Australia."
She warned that simply calling someone an independent contractor won't wash, especially under recent Closing Loopholes reforms.
"Following the reforms, it is not possible to rely on a well-drafted contract alone in establishing that a worker is an independent contractor."
In the end, it's the practical reality of the relationship that counts. Do they report to a manager? Do they have set hours? Are they prevented from taking on other work? Were they engaged in Australia by an Australian employer? If the answer is yes, the law is likely to see them as employees, no matter where in the world they sit.
That's exactly what happened here. The FWC decided Pascua was, in practice, just like any local staff member. The contract said "contractor", but the day-to-day reality said otherwise. She was engaged in Australia, worked fixed hours, reported directly to her boss, and did core work for the company: all the hallmarks of an employee.
Graham Doessel, the company's founder, argued that forcing Australian minimum wages onto overseas hires could crush small businesses. "Thousands of small operators just can't afford to pay Australian rates," he said.
That may be true, but as the Commission pointed out, affordability doesn't trump the law. Which leaves a big question for business owners: what now?
Lyras advises companies to think carefully about how and why they're engaging foreign workers:
"It may be more appropriate for them to be engaged by a foreign company in the group or a foreign employer of record. Businesses should give careful consideration to how the arrangement should be structured."
She also stressed that regular reviews are important:
"We encourage our clients to have a robust process that properly characterises workers... and implement regular checkpoints to monitor changes."
Offshore hiring can be smart and life-changing, but it's no loophole. If your "contractor" works like an employee, the law will treat them like one. Get proper advice and structure it right - or risk a nasty surprise.
Question: I am 82 and own a negatively geared rental property, which I had originally intended to leave to my son under my will. However, I am now considering transferring the property to him during my lifetime. I understand that capital gains tax would be payable based on the property's current market value, less any eligible deductions. Could you please clarify what expenses may be used to reduce the CGT liability? Also, is gift duty applicable, and would stamp duty be payable even though no money will change hands? The property was purchased for $105,000 in 1992 and is now valued at approximately $780,000. Once transferred, it will become my son's principal place of residence. Could you advise how the transfer should be structured, given that no payment will be made
Answer: The cost base includes your original purchase price, plus costs like stamp duty, legal fees, and any renovation expenses you didn't claim as tax deductions. Because you've owned the property for a long time, you'll qualify for a 50% CGT discount. From what you've told me, your net profit after the discount would be about $300,000. This would be added to your taxable income in the year you sign the sales contract. Depending on your other income, your CGT bill could be around $120,000. Given your son plans to live in the house long-term, it might be better to leave it to him in your will. That way, no CGT is triggered now - it would only arise when he eventually sells, and it could be reduced if the property is his home. If you're worried about challenges to your will, you could transfer 50% of the property to him now as a joint tenant. The rest would pass to him automatically when you die, and transferring only half now would mean a smaller CGT hit.
Question: If I receive a lump sum payment as part of a genuine redundancy - specifically for unused annual leave and accrued long service leave (Type A) - is this treated as assessable income for tax purposes? And if so, can I offset the tax by making a concessional super contribution before the end of that same financial year?
Answer: Yes, a unused leave payments received as a lump sum is assessable income for tax purposes. However, where it has been received as a result of genuine redundancy, these leave payments will be subject to concessional tax rates. In these circumstances, unused annual and long service leave payments accrued on or after 16 August 1978 are subject to a maximum tax rate of 30% (plus 2% Medicare levy). If you have not used up your concessional contributions cap, you could consider making tax deductible concessional super contributions to reduce your assessable income and offset some or all of the tax on the unused leave payments.
Question: I wonder if you'd consider helping those of us Australians trying to safely transfer funds into CoinSpot - one of the best-known, most-used, and highly respected Australian crypto exchanges. While Westpac allows transactions to CoinSpot, Macquarie has banned them. Staff insist they're "protecting customers" by preventing us from using our own funds to invest in so-called "unsafe" assets like crypto. I've been told there's no one at the bank I can speak to about reversing this decision. De-banking customers in this way is hardly an example of great service. It forces us to leave cash on exchanges and requires older Australians like me to open and juggle multiple bank accounts. Frankly, it's a paternalistic and heavy-handed form of control. Can you be a voice for us?
Answer: A Macquarie Bank spokesperson says "Unfortunately, cryptocurrency exchanges are frequently used by scammers to obtain funds from their victims and so present a high scam and fraud risk. To help protect our customers from the risk of scams, we block payments to BSBs that we assess as being high-risk, predominantly where they house accounts belonging to cryptocurrency exchanges. This decision aligns with our commitment to help ensure the security of customer payments and protect against fraud and scams." I guess your only option is to use Westpac.
The world is now a global village. Remote work means anyone with a laptop can work from anywhere-customer support in the Philippines, accounting in Mumbai, virtual assistants in Vietnam. Hiring offshore talent has never been easier for Australian businesses. Everywhere I go, people rave about their overseas assistants - brilliant, cheap, and indispensable.
But here's the wake-up call: a Fair Work Commission (FWC) ruling has made it clear that just because your workers live overseas doesn't mean Australian employment laws don't apply.
The case involved Joanna Pascua, a paralegal in the Philippines working for Brisbane-based Doessel Group. On paper she was an "independent contractor" earning $18 an hour - well under our minimum wage. But she kept Queensland hours, dealt directly with Aussie banks, and had no other clients. The FWC decided she was actually an employee, which meant she was entitled to all the usual protections under the Fair Work Act, including minimum wage and the right to claim unfair dismissal.
The ruling has rattled plenty of small businesses who thought hiring offshore gave them a clean break from Australia's complex industrial relations system: no super, no payroll tax, no award wage - just a contract and a timesheet. Well, not anymore.
As Amanda Lyras, a partner at law firm Clayton Utz, explained:
"The application of the Fair Work Act to foreign workers is somewhat complex, but it is important for businesses to be aware that the employee protections under the Act can extend to a worker who is based outside Australia."
She warned that simply calling someone an independent contractor won't wash, especially under recent Closing Loopholes reforms.
"Following the reforms, it is not possible to rely on a well-drafted contract alone in establishing that a worker is an independent contractor."
In the end, it's the practical reality of the relationship that counts. Do they report to a manager? Do they have set hours? Are they prevented from taking on other work? Were they engaged in Australia by an Australian employer? If the answer is yes, the law is likely to see them as employees, no matter where in the world they sit.
That's exactly what happened here. The FWC decided Pascua was, in practice, just like any local staff member. The contract said "contractor", but the day-to-day reality said otherwise. She was engaged in Australia, worked fixed hours, reported directly to her boss, and did core work for the company: all the hallmarks of an employee.
Graham Doessel, the company's founder, argued that forcing Australian minimum wages onto overseas hires could crush small businesses. "Thousands of small operators just can't afford to pay Australian rates," he said.
That may be true, but as the Commission pointed out, affordability doesn't trump the law. Which leaves a big question for business owners: what now?
Lyras advises companies to think carefully about how and why they're engaging foreign workers:
"It may be more appropriate for them to be engaged by a foreign company in the group or a foreign employer of record. Businesses should give careful consideration to how the arrangement should be structured."
She also stressed that regular reviews are important:
"We encourage our clients to have a robust process that properly characterises workers... and implement regular checkpoints to monitor changes."
Offshore hiring can be smart and life-changing, but it's no loophole. If your "contractor" works like an employee, the law will treat them like one. Get proper advice and structure it right - or risk a nasty surprise.
Question: I am 82 and own a negatively geared rental property, which I had originally intended to leave to my son under my will. However, I am now considering transferring the property to him during my lifetime. I understand that capital gains tax would be payable based on the property's current market value, less any eligible deductions. Could you please clarify what expenses may be used to reduce the CGT liability? Also, is gift duty applicable, and would stamp duty be payable even though no money will change hands? The property was purchased for $105,000 in 1992 and is now valued at approximately $780,000. Once transferred, it will become my son's principal place of residence. Could you advise how the transfer should be structured, given that no payment will be made
Answer: The cost base includes your original purchase price, plus costs like stamp duty, legal fees, and any renovation expenses you didn't claim as tax deductions. Because you've owned the property for a long time, you'll qualify for a 50% CGT discount. From what you've told me, your net profit after the discount would be about $300,000. This would be added to your taxable income in the year you sign the sales contract. Depending on your other income, your CGT bill could be around $120,000. Given your son plans to live in the house long-term, it might be better to leave it to him in your will. That way, no CGT is triggered now - it would only arise when he eventually sells, and it could be reduced if the property is his home. If you're worried about challenges to your will, you could transfer 50% of the property to him now as a joint tenant. The rest would pass to him automatically when you die, and transferring only half now would mean a smaller CGT hit.
Question: If I receive a lump sum payment as part of a genuine redundancy - specifically for unused annual leave and accrued long service leave (Type A) - is this treated as assessable income for tax purposes? And if so, can I offset the tax by making a concessional super contribution before the end of that same financial year?
Answer: Yes, a unused leave payments received as a lump sum is assessable income for tax purposes. However, where it has been received as a result of genuine redundancy, these leave payments will be subject to concessional tax rates. In these circumstances, unused annual and long service leave payments accrued on or after 16 August 1978 are subject to a maximum tax rate of 30% (plus 2% Medicare levy). If you have not used up your concessional contributions cap, you could consider making tax deductible concessional super contributions to reduce your assessable income and offset some or all of the tax on the unused leave payments.
Question: I wonder if you'd consider helping those of us Australians trying to safely transfer funds into CoinSpot - one of the best-known, most-used, and highly respected Australian crypto exchanges. While Westpac allows transactions to CoinSpot, Macquarie has banned them. Staff insist they're "protecting customers" by preventing us from using our own funds to invest in so-called "unsafe" assets like crypto. I've been told there's no one at the bank I can speak to about reversing this decision. De-banking customers in this way is hardly an example of great service. It forces us to leave cash on exchanges and requires older Australians like me to open and juggle multiple bank accounts. Frankly, it's a paternalistic and heavy-handed form of control. Can you be a voice for us?
Answer: A Macquarie Bank spokesperson says "Unfortunately, cryptocurrency exchanges are frequently used by scammers to obtain funds from their victims and so present a high scam and fraud risk. To help protect our customers from the risk of scams, we block payments to BSBs that we assess as being high-risk, predominantly where they house accounts belonging to cryptocurrency exchanges. This decision aligns with our commitment to help ensure the security of customer payments and protect against fraud and scams." I guess your only option is to use Westpac.
