06/09/2026
🔍 EMPLOYEE OR CONTRACTOR? IT'S MORE THAN WHAT THE CONTRACT SAYS
Part 3 of our Offshore Contractor Check series
Your agreement says:
"Independent Contractor."
Does that settle the question?
❌ Not necessarily — and less so than it used to.
Since 26 August 2024, a legislative change (s.15AA of the Fair Work Act) means that for businesses covered by the relevant Fair Work provisions, the employee/contractor test looks at the "real substance, practical reality and true nature" of the relationship — the contract terms and how it's actually performed. That reversed an earlier approach where a well-drafted contract could be close to decisive on its own.
In simple terms, you need to look at the relationship as a whole.
Here are some questions worth asking about your offshore worker:
🔹 CONTROL Who decides how and when the work is performed?
🔹 HOURS Do you require them to work set hours every week?
🔹 DELEGATION Can they genuinely send someone else to perform the work, or must they personally do it?
🔹 INTEGRATION Are they providing a service through their own business — or functioning like another member of your team?
🔹 FINANCIAL RISK Are they genuinely operating their own business and carrying commercial risk?
🔹 ONGOING WORK Are they engaged to deliver particular projects or results, or do they perform an ongoing role within your business?
🔹 WHAT ACTUALLY HAPPENS? Does the way you work together in practice match what's written in the agreement?
No single question automatically determines the answer.
But consider this:
If someone works regular hours, reports to your manager, receives daily instructions, works within your systems, must personally perform the work and effectively operates as part of your team...
Simply calling them an "independent contractor" may not be enough.
💡 One exception: contractors earning above the "contractor high income threshold" ($190,100 for 2026–27) can give a written opt-out notice, keeping the older contract-focused test instead. Worth knowing if your offshore engagements involve senior or highly paid specialists.
⚠️ And if they ARE an employee, there's another very important question:
Does Australian Fair Work law apply when the employee is sitting overseas?
We'll tackle that in Part 4.
General information only and not legal advice. Employee/contractor classification depends on the circumstances of each engagement.