Fly in fly out employment
What is a fly in fly out job?
‘Fly in fly out’ (FIFO) jobs are those where an employer will
temporarily transport the employee to a location or site of work and
then transport them back for a period of rest. This method is most
commonly employed in order to avoid relocating the employee (and
possibly their family) to the site on a permanent basis. For the
employer, it is often cheaper to pay for airfares periodically than
establish communities with liveable amenities, especially where the work
location is not likely to be permanent (e.g. mining zones). Typically,
these types of jobs can be quite difficult and often require long
working hours during the ‘fly in’ period. A person proposing to accept
such a job should be mindful of their rights and power to enforce their
What should I look for within the contract?
- International issues: Where a fly out location is
international, issues may arise as to whether Australian legislation and
protection under the Fair Work Act will apply. That is, does an
Australian worker employed by an Australian entity working overseas
attract the standards of protection under Australian employment law? In
many instances, the National Employment Standards, modern awards, unfair
dismissal provisions and minimum wages will apply to an Australian
employer employing Australian nationals whilst working outside Australia
(section 35 of the Fair Work Act). The definitions under s35
would tend to include an Australian employer who is operating through an
overseas branch or office as long as their ‘central management and
control is in Australia’. However, this will not apply to employees
‘engaged outside of Australia to perform work outside of Australia’
(s35(3)). For this reason, you should ensure your contract of employment
is made and signed within Australia, bearing in mind that other factors
will guide a court into considering whether you were engaged within
Australia, including whether a person has received relocation
- Allowances, accommodation and meals: A FIFO
employment contract is likely to contain a clause that provides for
board and for meal allowance, otherwise falling under the common law
duty to indemnify the costs incurred on behalf of an employee. It may
also be required by your relevant modern industry award. Consider that
accommodation may be shared with other employees or that accommodation
may be re-used by other employees during your rest period. You should
also assess whether the meal allowance is likely to be sufficient.
Allowances may also be calculated according to a proportion of hours
worked, either by award or by contract.
- FIFO locations: An employer has the power by
contract to set the location of your fly in and fly out departures and
returns. For this reason, you should ensure that the departing and
arriving locations are convenient for you, as reflected in contract. You
should also consider whether an employer has reserved a right to change
- Rosters and hours: An especially pertinent issue to
FIFO workers are their rostered hours and work schedules. It is not out
of the ordinary for an employer to have schedules of 4/1 (4 weeks on, 1
week off) or a 28/7 (28 days on, 7 off). Before signing a contract, you
should negotiate a schedule which you believe accommodates you and your
family’s interests and one which you believe can be sustainable.
- Your rights during industrial action: Where FIFO
workers wish to strike to negotiate better terms while on location, the
issue may arise that they are dependent on the employer providing them
accommodation. Under s470(1) of the Fair Work Act, an employer must not
‘make payment’ to their employees during a time of industrial action or
strike. Importantly for FIFO workers, the High Court has interpreted
‘payments’ in a limited sense as to only include payments of money. The
effect is that FIFO ‘benefits’ cannot be used as a bargaining chip to
ensure that no employee goes on strike. As the court in Mammoet Australia (CFMEU v Mammoet Australia Pty Ltd [2013} HCA 36)
held, this meant that FIFO workers could not be stripped of their
accommodation during the period in which they initiated action. For this
reason, it may be beneficial for your employer to provide you with
accommodation as a term of the contract rather than providing
remuneration for you to purchase your own.
- Costs of travel: It is possible that your contract
makes you financially responsible for getting to the place of work. Even
though you may receive a greater wage in return, you should consider
that a recent Federal Court decision has held that these travel costs,
whether paid by employee or employer, are not a class of costs that are
tax deductible (John Holland Group Pty Ltd & Anor v FCT
 FCA 1332). Even if your employer pays for the travel costs, you
should ensure they are not trying to offset these once deductible costs
by paying you a lower wage or removing some other benefit. You should
therefore compare your proposed contract with others prior to 2014 to
see if the decision has had any effect.
- Rate of pay: It will be to your benefit to
negotiate a higher wage when considering an employment contract. In
doing this, you should familiarise yourself with the industry standard
to ensure that your contract and wage accords with ordinary practice.
Depending on which industry you intend on entering, there may also be
mandatory loadings on your rate of pay for certain worked performed or
for the hours in which it is performed. For example, drilling and
prospector work entitles the employee to an additional percentage of
their standard rate under the Mining Industry Award. Awards may also
require additional payment for hours worked over a set weekly limit, or
for hours worked outside of standard hours, according to the position or
role you have taken. In this regard, you should ensure that your
contract of employment correctly characterises the role to be performed
and how and when shifts are to performed. In having regard to any
applicable Award bear in mind that modern awards are only indicative of
the minimum to be paid in a legal sense. Industries that employ FIFO
workers usually pay higher rates to reflect the unsociable nature of the
work. You should make sure that you understand the current market trend
for your industry and for your role so that you can more accurately
negotiate your contractual rate of pay.
Am I a contractor or employee?
An employee is a person who is employed under contract to work
exclusively for the company for a fixed or indefinite term. A contractor
is someone who takes on a contract to do one specific task or tasks
over a period of definite time. Usually, your contract will specify the
status under which you are to be engaged, however that is not
conclusive. It is possible for an employer to attempt to represent the
relationship as one as contractor where an employee-employer one truly
exists in order to circumvent certain benefits which would otherwise
accrue. The Fair Work Act 2009 is no help in this regard; it
provides no definition. Rather, you must look at the characteristics and
nature of the relationship to ascertain your status. In doing so you
- Do I have control over how my work is to be performed? If no, it is more likely I am an employee.
- Do I have to wear a uniform, or some form of company association? If yes, it is more likely I am an employee.
- Do I bear the risk of profit or loss? If no, it is more likely I am an employee.
- Can I work elsewhere? If no, it is more likely I am an employee.
- Am I responsible for my own insurance from injury? If no, it is more likely I am an employee.
- Do I receive a wage, or am I paid per task? If wage, it is more likely I am an employee.
- Can I delegate tasks to other people I choose or sub contract? If no, it is more likely I am an employee.
- Am I required to supply and maintain my own tools? If no, it is more likely I am an employee.
- Is tax deducted from my wage (not including super)? If no, it is more likely I am an employee.
- What does the contract say I am?
- Is holiday pay or sick leave given? If yes, it is more likely I am an employee.
What is the difference?
The distinction is important. The relationship of employer/employee is governed by the Fair Work Act 2009. Only
an employee can be covered by industry awards or enterprise agreements
which may provide specific benefits to FIFO workers, tailored to the
industry in which they work. The Fair Work Act also provides
employees with a safety net of minimum entitlements, including minimum
wages, sick leave, annual leave, long service leave, maximum weekly
hours, redundancy pay and notice on termination of employment. Further,
if an accident occurs on site, an employer will be vicariously liable
for the employee’s mistake and the damage that may ensue, whereas a
contractor is liable for the damage she/he causes. Also, workers
compensation is generally limited to employees.
Contractors, by contrast, have fewer statutory protections. There is,
for example, no unfair dismissal remedy for independent contractors
other than what is provided in their contract of engagement. Contractors
do have the advantage of remaining flexible and open to providing a
variety of work to a variety of clients rather than being tied down to
the one employer.
What should I do before accepting work?
Bearing in mind that these rights may be especially important to you
and to your family, you should ensure that a FIFO contract aptly
reflects your desired status. In doing so, you should not only ensure
that the contract description spells out that you are to be an employee,
but also that the terms and conditions are drafted in a way that
indicate the existence an employment relationship. You should also
ensure you sign the employment contract in Australia so as to attract
Australian employment law jurisdiction.