AB v Free Hearts Free Minds [2025] FWC 353

Fair Work Act 2009

AB v Free Hearts Free Minds [2025] FWC 353 | Case summary | Zoe

[6]

[5] FHFM is an organisation which primarily provides support to people who live or have lived in a Muslim-majority country who have faced persecution because of their beliefs and / or orientation.
[6] FHFM was registered in California, in the United States of America (the US) on 30 March 2021 as an entity described in that jurisdiction as a "Nonprofit Corporation - CA - Public Benefit". It was said that it is "based" in the US, but it appears it has a presence in many countries[3].
[7] Costs associated with the conduct of FHFM, such as its on-line infrastructure and the services it provides to people who it describes as "clients" are funded through private donation.
[8] Based on the evidence before me, it appears the primary model of support FHFM provides to its clients are therapy sessions, delivered to them on-line by an appropriately qualified person. Persons who receive these sessions might then be invited to join an on-line community, through which they might receive further ongoing support.
[9] FHFM deny it engages any persons capable of being described as an "employee" in any part of the world, but does engage people to provide services, sometimes for remuneration, on the basis of what it describes as a contracting arrangement. It also engages volunteers.
[10] It was said in evidence that two people based in Australia have been engaged to provided services to FHFM and its clients for remuneration: Ms AB and another person[4]. It appeared from the evidence that the nature of the services provided to FHFM by Ms AB and the other person were the provision of therapy sessions to FHFM clients. As is discussed in more detail below, Ms AB was also engaged to perform management, marketing and fundraising work. This work was undertaken by Ms AB in Australia.
[11] At least one recipient of FHFM support / therapy services was a person based in Australia[5]. Otherwise, the recipients of FHFM therapy sessions provided through FHFM are people based outside of Australia (where those sessions were provided online).

[28]

[35] This application is brought pursuant to Part 3-1 of the Act. Accordingly, pursuant to s 15AA(3)(b) of the FW Act, if Part 3-1 only applies by virtue of ss 30G or 30R, subsections (1) and (2) of s 15AA do not apply.
[36] It seems likely that if ss 15AA(1) and (2) do not apply, a determination about whether a person is an "employee" should occur according to the law as it existed without s 15AA[14]. But this is a question for another day. In this matter, I have determined, for reasons outlined below, that Part 3-1 applies pursuant s 14 of the FW Act, even if it may also apply by virtue of s 30G. Because Part 3-1 of the Act applies to this application by virtue of s 14 of the FW Act, and not only because of the operation of ss 30G or 30R I consider s 15AA applies to the question as to whether Ms AB is an employee, and FHFM her employer.
[37] As the note at the foot of s 15AA(2) says, s 15AA was enacted "in response to" the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd (Personnel Contracting)[15] and ZG Operations Australia Pty Ltd v Jamsek (Jamsek)[16]. These decisions had resulted in a change in the approach to distinguishing between an "employee" and an "independent contractor" such that whether the relationship between the parties is one of employment or not turns upon an examination of their legal rights and obligations arising from the contract between them[17]. This meant that where a written contract existed between the parties which was not invalid for some reason, the rights and obligations established by the contract were determinative as to the legal character of the relationship[18]. Even where the parties' contract was not in writing (or not wholly in writing), the focus remained on the nature of their relationship between the parties as determined by the legal rights and obligations created by their unwritten contract[19], and not a wide-ranging review of the entire history of the parties' dealings[20].
[38] Prior to these decisions, the more common approach to determining the question as to whether a worker is an "employee", or an "independent contractor" was often described as the "multifactorial test" which usually involved the identification and analysis of various "indicia" said to be indicative of "employment" or an "independent contract" as the case may be[21].
[39] Taking into account the note at the foot of s 15AA(2)(b) and the requirement that in ascertaining the real substance, practical reality and true nature of the relationship between the parties, regard must be had to the terms of the contract, and other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice_,_ it appears to me that s 15AA is intended to reinstate the approach to this question using the "multifactorial test".
[40] For reasons associated with the passage of the legislation through the Australian Parliament, the Explanatory Memorandum which accompanied the Fair Work Legislation Amendment (Closing Loopholes No. 1) Act 2023 contained the relevant commentary relating to the introduction of s 15AA. It provides as follows[22]:

[51]

[41] In the application of the "multifactorial test", prior to the decisions of the High Court in in Personnel Contracting and Jamsek, the Commission often had regard to the decision of a Full Bench in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario[23] particularly because it contained a useful summary of some of the "indicia" which might be considered to determine whether, using the multifactorial test, a person is an employee or an employer. The summary of indicia outlines factors similar to those identified in the Explanatory Memorandum (referred to above) including the following (by way of summary):
1. The "ultimate question" is whether the worker is a servant of another in that other's business, or carries on a trade or business of his or her own behalf.
2. The nature of the work performed and the manner in which it is performed must always be considered.
3. The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of the relationship by putting a different label on it.
4. Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like is indicative of a relationship of employment, and the absence of such control or the right to exercise control is indicative of an independent contract.
5. Whether the worker performs work for others (or has a genuine and practice entitlement to do so) is characteristic of an employment relationship and working for others (or the genuine and practical entitlement to do so) suggests an independent contract.
6. Whether the worker has a separate place of work and or advertises his or her services to the world at large.
7. Where the worker provides and maintains significant tools or equipment, or is significantly invested in capital equipment requiring a substantial degree of skill or training to use, this may be indicative of an independent contract.
8. If a worker is contractually entitled to delegate the work to others without reference to the putative employer this is a strong indicator the worker is an independent contractor.
9. If the putative employer has the right to suspend or dismiss the person engaged, this can be an indicator of an employment relationship.
10. If the putative employer presents the worker to the world at large as an emanation of the business, such as a requirement to wear the "livery" of the putative employer, this may be an indication of an employment relationship.
11. Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks.
12. The provision of paid holidays or sick leave can be indicative of an employment relationship.
13. Where the work involves a profession, trade or distinct calling on the part of the person engaged, such persons tend to be engaged as independent contractors rather than as employees.
14. A worker that creates goodwill or saleable assets in the course of his or her work may be more likely to be an independent contractor.
15. A worker who spends significant portion of their remuneration on business expenses may be more likely to be an independent contractor.
[42] In relation to the application of the test, this decision cited an earlier comment made by Mummery J in Hall (Inspector of Taxes) v Lorimer[24], that the application of the indicia:

[58]

[46] Ms AB began performing work for FHFM in January 2021. The role she held prior to 9 November 2023 was described as a "Mental Health Therapist" or "Mental Health Facilitator". It appears this role was to deliver to clients of FHFM the counselling services it offers. Ms AB delivered these services online. She was paid for this work. During the period she was performing this work she had another full-time job and the work she performed from FHFM occurred "out of hours", at times convenient to her taking into account her other work commitments[27].
[47] Very little further evidence was provided as to the nature of this work. It was described as "casual" and, on the plain meaning of that word, it clearly was. Whether during this period Ms AB was an "employee" of FHFM is unnecessary to determine because the nature of Ms AB's engagement changed and was significantly different by the time it ended.
[48] On 9 November 2023 a conversation took place between Ms AB and Ms EF resulting in a change to Ms AB's role. Ms AB said that in this conversation, Ms EF offered, and Ms AB accepted a role titled "Executive Director" with FHFM. Ms AB understood that her role was to "grow the organisation"[28]. From the evidence before me, it appeared this role involved Ms AB liaising with donors or potential donors to FHFM[29], engaging in "marketing activities"[30], attending to its on-line infrastructure (such as website) [31] and onboarding volunteers or people performing work for FHFM[32]. It was an apparently managerial role. This role required Ms AB to work full time for FHFM[33]. Further evidence was given that Ms EF said the following:[34]:
1. Ms EF said, "it is my preference that you are a contractor".
2. Ms EF said "I would like you to work full time hours, but I can only pay you for three days. Once we receive more funding, we can pay you more".
[49] In a further exchange, evidenced by copies of text messages provided in evidence, Ms AB and Ms EF discussed how the role would be remunerated. It appears Ms EF's original position was that Ms AB would be paid $4,500.00 per month, "AUD". Ms AB queried this amount, and proposed the figure should be $6,550.00. Ms EF appeared to agree to that amount - in a later message referring to "the 6550".
[50] As stated, Ms AB sent FHFM an invoice each month in respect to the engagement. The invoices outlined the various tasks Ms AB performed as part of her role. There was a reference made by Ms EF to the remuneration being set up as an "automatic deposit" although Mr A said this didn't happen - that he was responsible for paying Ms AB and did so according to her invoices, not an automatic payment system[35].
[51] The first invoice furnished, on 1 December 2023, referred to the figure of $4,878.00 "AUD" (apparently derived from the higher figure, calculated on a pro-rata basis). The second invoice, relating to December 2023, referred to $6,500 "AUD". I do not know why this figure was $6,500.00, and not $6,550.00 as had apparently been initially agreed. Ms AB said in her evidence that following these first two months, there was a dispute about her remuneration level and that in the end she was forced to accept a change to it, such that she began invoicing for $4,000.00, "USD". Subsequent invoices refer to the relevant figures in US dollars.
[52] The invoices do not appear to refer to taxation arrangements, although all carry Ms AB's ABN number. It appears clear there is no PAYG income tax was remitted on Ms AB's behalf.
[53] Based on the evidence before me, it seems to me that the structure of the role performed by Ms AB revolved around a weekly meeting she had with Ms EF, during which she received direction as to what work to do, which was then undertaken in an autonomous fashion. In this regard, it appeared the work was undertaken similar to many remote working arrangements, particularly in respect to an employee holding a senior role.
[54] FHFM submitted that the nature of this work was such that Ms AB had "full control" over how it was performed[36], and that the work was "piecemeal", "offered to the Applicant which she could take or decline"[37], or "project based"[38]. These descriptions seem to me to be mischaracterisations. Ms EF's communications with Ms AB appear to me to be quite directive, both in tone and content. Ms AB was plainly not entitled to refuse to undertake the work arising from her interactions with Ms EF - she was required to follow her instructions[39]. The work - such as liaising with donors or improving the online infrastructure was not project based. It was part of a broad role. In this regard, as I mentioned above, Ms EF did not give evidence in this proceeding, and to the extent there is a controversy as to the extent to which Ms AB was not working under Ms EF's direction, I infer that if she had given evidence, it would not have assisted FHFM's contention that there was an absence of control over the work performed by Ms AB exercised by Ms EF.
[55] I also consider the final exchanges between Ms EF and Ms AB illuminating in this regard. In the email terminating the engagement, Ms EF says FHFM needs an Executive Director who has both the educational expertise and "real world experience in nonprofit management [my emphasis]". Ms AB's response suggests the decision to terminate her employment was made because Ms AB was unavailable to meet one week. The further exchanges involve direction from Ms EF to complete a comprehensive handover[40].
[56] It is now not unique that an individual might perform work from a remote location, receiving direction and instruction from someone overseas, left in a sense to their own devices as to how that work is performed in a minute to minute, hour to hour sense. Such an arrangement is not in and of itself determinative of the question as to whether an employment relationship exists.
[57] Some time was spent by both parties addressing the Commission on how this engagement was characterised by the parties. Ms AB appeared to place importance on the assertion that Ms EF used the term "employee" in a conversation with her 8 January 2024. Ms AB was challenged repeatedly in cross examination as to why she did not take issue with or challenge the use of the term "contractor", or that she was required to furnish invoices to be paid[41]. I did not find either parties' emphasis on these matters particularly useful. While terms and terminology used by the parties are relevant to the characterisation of the true nature of the relationship, they are not determinative, taking into account the application of s 15AA of the Act[42].

[59]

[58] I have considered the various indicia associated with Ms AB's engagement by FHFM in relation to the "ultimate question" or "focal point" - whether Ms AB was carrying out a trade or business on her own behalf[43].
[59] During the period following her engagement as Executive Director, Ms AB said she did not perform work for anyone else. She did explain that in October 2023 she completed work of some kind for her brother-in-law, and invoiced for that work staggered over three months, meaning that period overlapped with the period after she commenced work as Executive Director[44].
[60] It does however appear to be the case that after the date on which she was appointed as the Executive Director, and during the period of this engagement, Ms AB did perform some hypnotherapy sessions for people which did not appear to be part of her duties as the Executive Director, and, on their face, were "private" undertakings. Some (or perhaps all) of the people concerned were former clients of FHFM[45]. However, it was explained by Ms AB that this was unpaid work, and part of her seeking certification in respect to a course of study[46]. I do not consider this work to be indicative of Ms AB conducting her own business or undertaking. She undertook this work as part of an attempt to improve her qualifications.
[61] It was submitted for FHFM that Ms AB bore "financial responsibility and risk"[47]. There appears no basis for this submission. Indeed, it seems to me FHFM would bear responsibility for actions taken in its name, such as actions engaged in by Ms AB as its Executive Director. It also appears clear that the product of Ms AB's work is "owned" by FHFM - that no saleable asset or goodwill is created by Ms AB in the course of this work, except assets such as its online infrastructure, which remain its property.
[62] It appeared to me that Ms AB was presented to the world at large as the Executive Director of FHFM. A screenshot of the FHFM website was provided in evidence, which showed a profile of Ms AB describing her as FHFM's "Executive Director". Her email signature described her as "Executive Director"[48].
[63] Accordingly, there is no evidence supporting the proposition that Ms AB was carrying out a trade or business on her own behalf in respect to her work for FHFM. Her work, such as fundraising activities, the maintenance and improvement of the FHFM infrastructure, her engagement with other FHFM personnel was engaged in solely for the benefit of FHFM and not part of any trade or undertaking being carried on by Ms AB. She presented herself and was presented by FHFM to the world at large, not as an autonomous entity, but as the Executive Director of FHFM.
[64] The remuneration arrangement in respect to Ms AB is more indicative of a contracting arrangement than an employment relationship. However, considering this indicium against the "ultimate question" it must be borne in mind that Ms AB did not furnish invoices displaying her ABN number for remuneration by choice, such as because this suited her own business structure. She furnished invoices because FHFM required her to, and she felt she had no other option[49].
[65] The absence of trappings more consistent with an employment relationship, such as the remittance of tax, the provision of leave entitlements and superannuation could be said to add weight to a conclusion this was an independent contract. I note however that these features of the relationship are also absent largely because FHFM refused to provide them. Ms AB said Ms EF said "we can go through the process of making you an employee, but this would be difficult for me and requires a lot of extra paperwork and steps ..."[50]. They are not absent because the true nature of the relationship involved Ms AB carrying on an undertaking on her own behalf. Their absence is more reminiscent of sham, created to cause an impression the arrangement is something different from what it truly is.
[66] It was submitted for FHFM that Ms AB was entitled to delegate or subcontract work[51]. There was no evidence to support this proposition. Taking into account the nature of the communications in evidence between Ms AB and Ms EF, I consider it more likely Ms EF would have taken issue with Ms AB delegating work to another without Ms EF's approval.
[67] There was no evidence of any significant investment of capital equipment by Ms AB in the engagement. It appears she did use her own computer and associated equipment - I do not consider in these circumstances this weighs heavily in favour of a characterisation of independent contract. FHFM is a charity whose mission Ms AB appears to have been supportive of. Her preparedness to use her own computer and basic equipment is incidental.
[68] I have discussed above the extent to which it can be said FHFM had the right to exercise, control over the manner in which work is performed. Mindful of the nature of modern remote working arrangements that are now not unusual, and the directive nature of Ms EF's relationship with Ms AB, I consider that it did have the right to exercise control over the manner in which Ms AB performed her work and did so.
[69] While to some extent unusual, the relationship between FHFM and Ms AB had features that are becoming more and more common in an employment relationship, through the increase in remote working arrangements and the use of technology. While at first blush it appears to be an unlikely "employment" relationship taking into account its remote character, the "employer's" overseas location and the way the parties labelled the relationship, an analysis of its true nature is more indicative of employment than an independent contract. I find Ms AB was an employee of FHFM.
[70] For completeness, I note that the email tendered in evidence sent to Ms AB by Ms EF on 8 November 2024 is undoubtedly evidence of "dismissal".
[71] Having found Ms AB was an employee of FHFM I find she was "dismissed" within the meaning of s 386 of the FW Act by FHFM on 8 November 2024.

[60]

[72] Ms AB's application has been brought pursuant to s 365 of the Act which provides that if it is alleged a person was dismissed in contravention of Part 3-1 of the Act, an application may be brought for the Commission to deal with that dispute. FHFM contends that it is not bound by Part 3-1 of the Act and by implication, that it cannot contravene Part 3-1 of the Act and thus there is no dispute pursuant to s 365 for the Commission to deal with.
[73] The contraventions alleged by Ms AB to have occurred are in respect to s 340 and 359 of the Act. The contravention said to have occurred with respect to s 359 - which prohibits misrepresentations that a person is an independent contractor - does not appear to relate to the alleged dismissal and thus is not part of the dispute the Commission is being asked to deal with.
[74] The contravention alleged to have occurred with respect to s 340 does relate to the dismissal - it is alleged that FHFM took adverse action against Ms AB including by dismissing her, and this was because she exercised a workplace right.
[75] Section 340 of the FW Act prohibits adverse action taken by a person against another person, in particular circumstances.
[76] However, s 342 defines "adverse action" as having been taken by an employer against an employee when the employer dismisses the employee.
[77] Section 339(e) of the FW Act provides that a reference in Part 3-1 to a "person" is a reference to a "constitutionally covered entity".
[78] A "constitutionally covered entity" is defined in s 338(2) of the FW Act to mean one of either:
1. a constitutional corporation;
2. the Commonwealth;
3. a Commonwealth authority;
4. a body corporate incorporated in a Territory;
5. an organisation.
[79] Accordingly, if FHFM is a "constitutional corporation" it is a "person" capable of contravening s 340 of the FW Act. However, for there to be a dismissal dispute before me in this matter, FHFM must also be an "employer" capable of engaging in adverse action within the meaning of s 342 - namely - the dismissal of its "employee".
[80] A "constitutional corporation" is defined in s 12 of the FW Act as a corporation to which paragraph 51(xx) of the Constitution applies. Section 51(xx) of the Constitution gives the Commonwealth Parliament power to make laws with respect to "foreign corporations and trading or financial corporations formed within the limits of the Commonwealth"[52].
[81] A foreign corporation, within the meaning of s 51(xx), need not to have been formed within the limits of the Commonwealth or be a trading or financial corporation[53] The types of entities which are encompassed are not narrowly confined. In R v Federal Court of Australia: Ex parte Western Australian National Football Leage Inc[54] Murphy J said:

[62]

[82] FHFM provided in evidence material relating to its registration and incorporation in the State of California, in the US. For the material provided there appears to be a distinction in that jurisdiction between "corporations", "associations", "trusts" and "trusts for charitable purposes". The Certificate of Status issued by the California Secretary of State describes the entity as "Nonprofit corporation - CA - Public Benefit" and a record of a meeting of its Directors which occurred on 30 March 2021 describe it as a "California Nonprofit Public Benefit Corporation".
[83] The minutes of what appears to have been the first meeting of the Directors of the incorporated entity, which were provided in evidence, record matters including the establishment of a bank account for the "conduct of the business of the Corporation", the authorisation of the Chief Financial Officer (Ms EF) to certify authorised bank signatories, the establishment of an accounting year and other such matters.
[84] FHFM submitted that its true legal character is more controversial than the nomenclature used to describe it in California, and the use of the term "corporation". It argued that, had FHFM been established in Australia, it would not have been a constitutional corporation[56].
[85] I cannot accept this submission. I am concerned with whether FHFM is a foreign corporation, within the meaning of s 51(xx) of Constitution, not with the imagined scenario as to how it would be characterised if it was formed in Australia (which it was not). The term should not be narrowly construed. It encompasses a broad range of types of entity, provided they have a distinct "artificial" legal personality. On the basis of the material before me, it appears clear FHFM has, in California, a legal personality distinct from its Directors and the other people associated with it. The use of the term "corporation" with respect to FHFM, used in California, is apt. I consider FHFM is a constitutional corporation within the meaning of s 51(xx) of the Australian Constitution and s 12 of the FW Act because it is a foreign corporation.
[86] However, is FHFM an "employer" and is Ms AB an "employee" for the purposes of s 342 of the Act?
[87] Section 335 provides that the terms "employee" and "employer" have their ordinary meanings. Section 339(a) provides that a reference to an "employer" in Part 3-1 is a reference to a "national system employer" and s 339(b) provides an "employee" is a national system employee.
[88] Section 14 of the Act provides relevantly that a national system employer is a "constitutional corporation" so far as it employs, or usually employs, an individual[57]. Section 13 provides that a national system employee is an individual so far as he or she is employed, or usually employed by a national system employer, except on a vocational placement.
[89] For the reasons explained above, FHFM is a constitutional corporation. The question therefore arises as to whether it "employs, or usually employs an individual" and whether Ms AB is an individual "usually employed" by it.
[90] Whether a constitutional corporation "employs, or usually employs an individual" and whether an employee is employed or "usually employed" depends on the circumstances of the case. As North J said in Australian Meat Industry Employees' Union v Belandra Pty Ltd[58]:

[66]

[92] I suspect it likely FHFM will find the proposition that it might "usually employ" an individual to be somewhat challenging, when it claims it does not, and never has "employed" anyone, anywhere in the world. However, to some extent, FHFM's assertion in this regard is a characterisation - reflecting the word or words it uses to describe legal relationships it has with people who perform work for it, as opposed to their true legal nature. I will say more about this below. It seems to me difficult to resist the conclusion that if Ms AB was an employee of FHFM at the time her engagement was terminated, she was an individual usually employed by FHFM and it, an entity who "usually employs" an individual even if only one individual - Ms AB.
[93] As explained above, I have found that Ms AB was an employee of FHFM, within the meaning of that term as it is now defined in the Act. It therefore follows that FHFM usually employed an individual. Given that it is a constitutional corporation, FHFM meets the definition of a national system employer for the purposes of s 14 of the Act and thus "employer" for the purposes of s 342 of the Act.
[94] For completeness, I note that s 30D of the Act extends the meaning of a national system employer in a referring State, as does s 30G, specifically with respect to Part 3-1. Given that I have already decided FHFM is a national system employer within the meaning of s 14 of the Act, it is not necessary for me to determine whether ss 30D and 30G also cause FHFM to fall within the definition of a "national system employer" by virtue of the connection in this matter between FHFM and a referring State (the State of Victoria). I note that s 30G(2) provides that the section does not limit the operation of ss 338 and 339.
[95] I have also considered whether the arrangement which existed between Ms AB and FHFM had a sufficient connection with Australia. In this regard, I note that not every foreign corporation throughout the world is a national system employer, and an appropriate connection with Australia must be identified[62]. In note further that FHFM is an entity of US origin, apparently operating in many countries across the world. I also note that Ms AB's work, while carried out in Australia, appeared to sometimes relate to tasks involving people based outside Australia.
[96] The location of the performance of the work is not the determinative factor in the consideration of whether there is a sufficient connection with Australia such that an employer may be characterised as a national system employer (and an employee, a national system employee)[63]. Consideration must be given to the overall employment relationship and the contractual setting which underpinned it[64]. The place the contract was formed is undoubtedly a key consideration[65] albeit the extent to which the place the contract was formed is determinative of the question is not settled[66].
[97] In this matter, there seems to me to be several aspects of the employment relationship, which, with regard to its character, are of connection with Australia.
[98] The contract through which Ms AB was engaged was the product of the discussion she had with Ms EF on 12 November 2023. This was a two-way conversation, about which evidence was only given by one of the participants. On the basis of this evidence, and the documentary material provided (text messages subsequently exchanged between Ms AB and Ms EF) it appears open to me to conclude that Ms EF "offered" Ms AB the job, and Ms AB "accepted it". To the extent that it is determinative, this means the contract was formed in Australia, where Ms AB accepted it[67].
[99] It is also relevant, albeit not determinative, that the work Ms AB performed occurred in Australia, for the Australian-based part of a US based organisation which was operating, at least to some extent, in Australia. At least one person based in Australia had directly received services from FHFM.
[100] It was said, more so in relation to whether Ms AB was an independent contractor or an employee, that she was paid from a US domiciled bank account. It also appears Ms AB began to send invoices to be paid in which her remuneration was specified in US dollars (although her initial invoices specified Australian dollars, as apparently initially agreed with Ms EF via text messages provided in evidence). It seems to me many employees based in Australia but employed by foreign corporations would be paid from overseas domiciled bank accounts. I do not consider much can be taken from the fact that US dollars are sometimes referred to between the parties, or the FHFM bank account is located in the US.
[101] Having determined that the contract between FHFM and Ms AB was entered into in Australia, and taking into account other aspects of the employment relationship, including that she performed all of her work for FHFM in Australia, I consider there is a sufficient connection with Australia such that it can be said that FHFM is a national system employer for the purposes of the application of Part 3-1 of the FW Act.
[102] I note finally that in its further written submission, FHFM made reference to s 34(3) of the Act. Sections 33 and 34 of the Act are concerned with the power to make regulations for the extension of the operation of the Act up to and beyond the exclusive economic zone and the continental shelf. The specific relevance of these submissions was not made entirely clear. In any event, this machinery is not relevant - the operation of the Act in respect to this matter does not arise through operation of a regulation made pursuant to s 33 or 34 of the FW Act but rather in the manner set out above.

At a glance

Court

Decision date

Source

Judgment (110 paragraphs)

AB v Free Hearts Free Minds [2025] FWC 353 (21 March 2025)

Parties

Legislation Cited (4)

Cases Cited (2)