1 Fair Work Act 2009 s.365—General protections Mohammad Qasrawi v Melbourne Polytechnic (C2026/1403) COMMISSIONER FOX MELBOURNE, 22 APRIL 2026 Application to deal with contraventions involving dismissal – jurisdictional objections raised by the respondent – objection that applicant is not employed by the respondent, and not an Australian-based employee – exception found under s.35(3) – objections upheld – application dismissed. [1] On 6 February 2026, Mr Mohammad Qasrawi (Applicant) filed a general protections application under s.365 of the Fair Work Act 2009 (Cth) (Act). In his application, the Applicant named the Respondent as Melbourne Polytechnic (MP). [2] The Respondent filed a Form F3 in which it raised three jurisdictional objections to the application. The objections are as follows: 1. The Respondent is not the employer of the Applicant; 2. The Applicant is not an Australian-based employee; and 3. The Applicant was not dismissed as he was employed on a fixed term contract which ended with the effluxion of time. [3] This Decision deals only with the first and second jurisdictional objections. [4] I conducted a Determinative Conference on 18 March 2026 and granted permission for MP to be represented under s.596(2)(a) of the Act. [5] In considering the submissions and evidence of the parties, I uphold the two jurisdictional objections of the Respondent. The reasons for my decision follow. Background and Submissions [6] Mr Qasrawi is a Palestinian national who has resided in China for a number of years. He was employed as a Business teacher at FMP in China under three consecutive fixed term contracts with Shanghai Yucui Investment Co Ltd (Yucui Investment). At the conclusion of [2026] FWC 1450 DECISION & ORDER [2026] FWC 1450 2 Mr Qasrawi’s fixed term contract he was not offered another contract. He alleges that this was because he had lodged a formal grievance about his manager in November 2025. He says the decision not to offer him another contract was made by MP, who he says ‘exercises “central management and control” over my academic standards and termination, establishing my status as a national-system employee protected by the Fair Work Act 2009.’1 [7] MP submitted an affidavit of Mr Blair Robert Trask, General Counsel of MP which states that Mr Qasrawi has never been an employee of MP, and that he is employed by Yucui Investment, as evidenced by his employment contract. Mr Trask also outlines that: • MP is a Victorian government institution constituted under the Training and Education Reform Act 2006 (Vic). It operates 7 campuses in Victoria and provides vocational and tertiary education to approximately 20,000 students. • Fuzhou Melbourne Polytechnic (FMP) is a Chinese entity that is located and operates an education business in Fuzhou, China. • MP does not own any part of FMP. • In around 2018, MP entered into an arm’s length commercial relationship with FMP, which enabled FMP to offer courses that meet Australian certification requirements to Chinese students. As part of that arrangement with FMP, MP permits FMP to use the name “Melbourne Polytechnic” as part of its trading name. • Yucui Investment is an entity based in China. • MP is a party to an arm’s length agreement with a related entity of Yucui Investment named Shanghai Yucui Education Consultancy Ltd Co (SYEC) which provides services to MP for the delivery of education programs in China on behalf of FMP. • MP cannot, under Chinese labour law, employ foreign nationals like Mr Qasrawi who live in China to deliver MP’s courses through FMP. Consequently, Mr Qasrawi and other foreign nationals who live in China and deliver MP’s courses through FMP are employed by Yucui Investment. • Yucui Investment is responsible for ensuring that foreign nationals who work for FMP receive the correct entitlements and benefits under Chinese labour law. • MP has a commercial arm’s length relationship with Yucui Investment and does not own any part of, or control, Yucui Investment. [8] Mr Trask submits that MP’s Director of International Academic Operations, Mr Leonard Spain has informed him, and which he believes, that: • At no time during the period of the Mr Qasrawi’s employment with Yucui Investment did Mr Qasrawi undertake any work for MP in Australia. [2026] FWC 1450 3 • Mr Mark Favetta sent the employment contracts to Mr Qasrawi via email. Mr Favetta resides and works for Yucui Investment in China and occupies the role of Manager, Academic and Support Services at FMP. • During the Applicant’s employment, Mr Lee Wei Quan (Jonathan), an employee of Yucui Investment supervised the day to day performance of his duties; • In compliance with Chinese labour law, FMP paid the Applicant 3 months’ salary (79,500 RMB) following the cessation of his employment with Yucui Investment. [9] It is uncontested between the parties that Mr Qasrawi had a contract of employment which: • identifies the parties to the contract as being Mr Qasrawi and Yucui Investment; • identifies the place of work being FMP in China; • was signed and executed in China by Mr Qasrawi and Alex Liu (General Manager, Yucui Investment) on 17 December 2024; • outlines the terms and conditions of employment, including public holidays and leave types as under Chinese law; • states the monthly salary is paid by FMP in accordance with the terms of the contract with Yucui Investment; and • provides the Applicant with a monthly housing allowance paid by Yucui Investment in accordance with the contract of employment. Jurisdictional Objection - MP is not the employer [10] MP submits that Mr Qasrawi cannot seek a remedy for general protections because he was an employee of Yucui Investment, and not an employee of MP. [11] While Mr Qasrawi does not contest that he was employed by Yucui Investment, he says that this was a sham arrangement and his true employer was MP because it controlled his work and is responsible for his termination. He says that he is a national system employee because his employment was controlled by MP and that this is consistent with Pascua v Doessel Group Pty Ltd.2 I note that this case was the subject of an appeal.3 [12] In Doessel the applicant was performing work from the Philippines for the respondent (who was an Australian entity). It was not contested that the respondent was a national system employer. The key question in the case was whether the applicant was an employee or an independent contractor. [13] MP submits that Mr Qasrawi’s reliance on Doessel is misconceived for reasons which include that the respondent and the applicant in that case were parties to a contract, whereas in this case there is no contractual relationship between the Respondent and the Applicant. [2026] FWC 1450 4 [14] I do not consider Doessel relevant to this matter, as it is not contested that MP is a national system employer, nor is it asserted that Mr Qasrawi is an employee rather than an independent contractor. The question I must determine is whether Mr Qasrawi is an employee of MP. [15] Mr Qasrawi says that on the totality of the evidence, MP exercised substantive operational control over his employment and functioned as the true employer in substance. He says that under Australian law, the characterization of an employment relationship depends on the legal rights and obligations created by contractual arrangements and the practical operation of the relationship, rather than merely the contractual label used by the parties.4 He cites CFMMEU v Personnel Contracting Pty Ltd5 and Hollis v Vabu Pty Ltd.6 Both cases consider the exercise of ‘control’, which is a factor in determining whether the applicant was an employee or an independent contractor. I do not consider these cases relevant in this matter, as Mr Qasrawi does not submit that he is an employee rather than an independent contractor. Instead, Mr Qasrawi asserts that his employer is MP rather than Yucui Investment. [16] I consider the contract of employment to be clear and unambiguous in identifying the parties to the contract – being Mr Qasrawi and Yucui Investment. Much of Mr Qasrawi’s evidence of MP’s apparent control seems to come from documents relied upon which have ‘Melbourne Polytechnic’ branding and email signatures. However, I consider this reflects the contractual arrangement in which MP permits FMP to use the name ‘Melbourne Polytechnic’ as part of its trading name. There is no evidence which supports Mr Qasrawi’s assertion that this is a sham arrangement and that MP is the ‘true’ employer. Indeed, as MP submits, it is a visa condition that a non-Chinese citizen can only work in China if they are employed by a Chinese entity. At the Determinative Conference, Mr Qasrawi acknowledged that he was employed by Yucui Investment, and that to work in China he must be employed by a Chinese entity. In his submissions he says that ‘the contractual structure also reflects the practical requirements of Chinese immigration law, which requires foreign teachers to obtain work permits sponsored by a local entity.’7 [17] Having regard to the evidence before me, I find that Mr Qasrawi was not employed by MP, and that he was employed by Yucui Investment. [18] I now move to consider whether Mr Qasrawi is an Australian-based employee. Jurisdictional objection – Not an Australian-based employee [19] MP submits that subsections 35(2)(b) and 35(3) of the Act excludes Mr Qasrawi from protections under the Act, including the general protections under Part 3-1 of the Act. That is, that Mr Qasrawi is not an Australian-based employee. [20] Section 35(1) of the Act defines an Australian employer and ss. 35(2) and (3) of the Act define who is an Australian-based employee. [21] Section 35(2) of the Act defines an Australian-based employee as: (2) An Australian based employee is an employee: [2026] FWC 1450 5 (a) whose primary place of work is in Australia; or (b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or (c) who is prescribed by the regulations. [22] Section 35(3) of the Act states that ‘paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.’ [23] Section 35(2)(a) and (c) of the Act are not relevant considerations in this matter. It is uncontested that Mr Qasrawi’s primary place of work was not in Australia, nor is Mr Qasrawi an Australian-based employee as prescribed by the Regulations.8 Mr Qasrawi says that s.35(2)(b) of the Act provides that an Australian based employee includes an employee employed by an Australian employer, whether the employee is located in Australia or elsewhere. Mr Qaswari’s submission is based on the incorrect presumption that he was employed by MP – an Australian based employer. As outlined above, I do not consider Mr Qasrawi to be employed by MP. [24] I accept that Yucui Investment is an entity that is registered and operates in China. Therefore, I must consider s.35(3) of the Act. MP submits that s.35(3) of the Act excludes Mr Qasrawi from making any claims against MP (or SYEC, or Yucui Investment) because he was engaged to perform duties outside of Australia.9 MP says that this is consistent with the decision of the Full Court of the Federal Court of Australia in Cohen v iSoft Group Pty Ltd & Anor.10 [25] Mr Qasrawi says that MP’s reliance on s.35(3) of the Act is misplaced because this provision applies only where the employment relationship is wholly foreign. He says that in the present matter, the employment relationship was directed and controlled by an Australian public institution and formed part of MP’s international education operations. [26] Determining the application of s.35(3) of the Act requires consideration of a two-limb test. In Winter v GHD Services Pty Ltd,11 Heffernan J summarised that “[t]he decision in Cohen has been held to establish that there are two limbs to be considered. Firstly, the ‘engagement outside’ limb which requires identification of the location of formation of the contract and, secondly, ‘the performance’ limb dealing with the issue of whether the duties were to be performed outside Australia.”12 [27] The first limb relates to the words ‘engaged outside Australia’. This requires identification of the location or formation of the contract. MP submits that although it plays a role in identifying suitable teachers and may be part of the interviewing process, the ultimate decision to employ a teacher rests with FMP. [28] MP also submits that Mr Qasrawi’s employment contract, executed on 17 December 2024, contains express terms that the location of Mr Qaswari’s employment was FMP, China, and that the agreement required him to work under and observe the relevant laws of China. MP says that Mr Favetta, an employee of Yucui Investment who resides in China, sent the [2026] FWC 1450 6 employment contracts to Mr Qasrawi via email, in China. The employment contracts dated 5 February 2024, and 17 December 2024 were countersigned by the General Manager of Yucui Investment, Alex Liu who is based in China. [29] On the evidence before me, in relation to the first limb, I find that Mr Qaswari was engaged outside Australia. [30] The second limb under s.35(3) of the Act considers where the duties were performed. [31] Mr Qasrawi submits that MP is an Australian employer and a Victorian Government TAFE institution, and that his work forms part of MP’s Australian-accredited vocational education program. He says that these educational programs must comply with the Australian Skills Quality Authority (ASQA). He also submits that Australian Courts have recognised that an employment relationship may exist where the substance of the employment relationship is connected to Australia, even if duties are performed overseas, citing Fair Work Ombudsman v Valuair Ltd13 and Fair Work Ombudsman v AIMG BQ Pty Ltd.14 [32] MP says that neither of these Decisions support this contention because ‘in AIMB Altobelli J was not required to consider the issue of the extraterritorial application of the Act. In Valuair, Buchanan J rejected the proposition that the Act applied to 8 flight attendants employed by Valuair, even though those 8 flight attendants had, on occasion, worked in Australia (see [14]-[15]).’15 [33] As stated above, I do not accept that Mr Qasrawi is employed by MP. I also do not accept that the need for the courses taught at FMP to comply with ASQA is indicative of the substance of the employment relationship in this case. I agree with MP’s submission that these cases do not support Mr Qasrawi’s assertion and are not relevant to the particulars of this matter. [34] The relevant test under s.35(3) of the Act is about where the work was performed. It was Mr Qasrawi’s evidence that the performance of his duties occurred exclusively in China and that he has not performed any of his duties in Australia. [35] I therefore find in relation to the second limb that Mr Qasrawi performed his duties outside of Australia. [36] Mr Qasrawi falls within the exemption in s.35(3) of the Act and is therefore not an Australian-based employee under s.35(2) of the Act. Conclusion [37] In conclusion, I find that Mr Qasrawi was not an employee of MP, and that he was not an Australian-based employee. As such, the Commission does not have jurisdiction to determine his general protections application. [38] I uphold the two jurisdictional objections of the Respondent and dismiss the Applicant’s general projections application. An Order to this effect is issued with this Decision. [2026] FWC 1450 7 COMMISSIONER Appearances: M Qasrawi on his own behalf C Hartigan for the Respondent Hearing details: 2026 18 March by video using Microsoft Teams Printed by authority of the Commonwealth Government Printer <PR798980> 1 Applicant’s Form F8. 2 [2024] FWC 2669. 3 [2025] FWCFB 43. 4 Applicant’s Submissions at [4]. 5 [2022] HCA 1. 6 [2001] HCA 44. 7 Applicant’s Submissions at [39]. 8 Fair Work Regulations 2009 (Cth). 9 Respondent’s Form F8A. 10 (2013) 298 ALR 516 at [54]. 11 [2019] FCCA 775. 12 Ibid at [15]. 13 (No 2) [2014] FCA 759. 14 [2016] FCCA 1024. 15 Respondent’s Submissions at [44].