This Filipino woman struck a blow against Australian businesses 'exploiting' offshore workers
A woman in the Philippines who scored a surprise win against an Australian business in the Fair Work Commission has blazed a trail for potential legal claims — including class actions — by offshore workers, lawyers say.
Joanna Pascua, who was sacked last year by a Brisbane credit repair outfit for whom she was doing paralegal work from her home in Manila, drew on her experience advocating for clients in Australia to file an unfair dismissal claim.
She won the right to Australian workplace protections in a watershed case that raises questions about the burgeoning practice of businesses hiring overseas workers to sidestep local wage costs and obligations.
"I've never heard of something like this, it was just really a long shot for me," Ms Pascua said.
Ms Pascua said she celebrated with her family over burritos and received a flurry of congratulatory messages from other Filipinos working for companies in Australia and New Zealand.
"I can say it is monumental because Australia has just established its leadership in [an international] labour workforce," she said.
Ms Pascua's contract with Doessel Group, in Brisbane's north, required her to investigate credit claims and liaise with Australian banks and credit agencies on behalf of clients of a related business, My CRA Lawyers.
Working from home with a phone and a computer, she was paid $18 (about 640 Philippine pesos) an hour.
According to a legal filing for Ms Pascua in the Fair Work Commission, she was likely among "tens of thousands" of people hired by Australian companies as "offshore contractors" when many of them were in fact employees left without protections either in Australia or their home countries.
"Ms Pascua's case demonstrates how offshore contracting exploits a grey area of the law to the short-term economic benefit of Australian businesses, such as Doessel, but to the detriment of the labourers involved," the submission said.
"Offshore contractors are performing precarious and informal jobs without social protection, for the immediate commercial gain of the businesses that acquire their labour."
This "grey market" is associated with small Australian businesses that, unlike large corporations, cannot afford to set up overseas subsidiaries that employ staff who are protected by industrial laws in those countries.
In February last year, Doessel Group sacked Ms Pascua after accusing her of unlawfully copying company and client information to her personal drive — allegations she denied.
"I couldn't believe it. This couldn't be happening. This is not real. There's no basis for it," she said.
"Something in me was nagging that I was wronged, and I can't make a company listen to Philippine law because of how it was set up."
Ms Pascua said her work "happily defending consumers" had shown her that "Australian law is very considerate on the actual circumstances of the consumer or the individual [and disputes] will get sorted out in a very fair way".
She decided to file for unfair dismissal but had to overcome a key hurdle as a "virtual worker" living a 5,800-kilometre plane flight away.
"When I first submitted my complaint, I was told that you can't file an unfair dismissal because you're not even resident in Australia," Ms Pascua said.
"But it doesn't say in the [Fair Work Act that] you have to be physically in Australia.
"I'm actually an employee … I do everything I'm expected to do in a daily grind, 8:30 to five o'clock Australian, Queensland time, I have to be there, have to be on time and all that."
Doessel Group argued she was an "independent contractor" outside Australia's jurisdiction.
But last September, Fair Work Commission Deputy President Tony Slevin found that this "belied that actual nature of the contract [and] Ms Pascua was not conducting her own business".
He ruled that Ms Pascua was an employee of an Australian company, and entitled to national minimum work standards, which include a wage of at least $24.87 an hour.
Doessel Group tried to appeal the ruling but it was upheld by the full bench of the commission in February.
This has cleared the way for Ms Pascua to continue her unfair dismissal claim, and to pursue unpaid wages through the Fair Work Ombudsman.
"Will I be contesting unfair dismissal? No, probably not," Doessel Group founder Graham Doessel told the ABC.
"Don't know yet. I haven't made a commercial decision. And have I employed somebody to replace her from the Philippines? Absolutely not.
"In my particular case, once bitten, twice shy."
Mr Doessel said that Ms Pascua had been "paid more than a senior solicitor, more than an airline pilot" in the Philippines.
Mr Doessel said the ruling would likely harm thousands of small businesses in the same boat as his, including "accountants, solicitors, brokers, finance companies".
Brisbane lawyer Alex Moriarty, who took on Ms Pascua's case late last year, told the ABC it put companies "on notice that employing offshore workers is not an easy loophole for avoiding Australia's workplace protections".
"Virtual and remote workers … can easily be deemed to be, in effect, Australian employees, with all the same rights under our Fair Work Act, including its minimum wage, gender pay equity, unfair dismissal and anti-bulling and anti-discrimination protections," he said.
Sydney-based employment lawyer Sarah Capello said she agreed these legal claims could follow, but barriers would include access to litigation funds for what tended not to be "big money cases".
"There might be a couple of instances where it does occur but I don't think it's going to be as often as we might think," Ms Capello said.
"I might be wrong … but I would be really surprised if this was the case because of the reliance in the Philippines of the [remote] work coming back to Australia."
Ms Pascua said remote jobs had meant new opportunities for working people in the Philippines, especially university-educated women who had raised their families and wanted to make a fresh contribution.
But after her sacking, she felt a need to show her adult children that she could "practise what I preached to them growing up", including to her daughter, a law student who she hoped would one day become a judge.
"Do I want them to feel that it's OK to feel this way and not do anything about it?" Ms Pascua said.
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