AAT remits claim for advance under FEG Act after finding applicant was an employee

In the recent decision of Roberts and Secretary of Jobs and Small Business [2019] AATA 64, the Administrative Appeals Tribunal (AAT) reviewed a decision made by the Secretary of the Department of Jobs and Small Business that the Applicant was not eligible to claim an advance under the Fair Entitlements Guarantee Act 2012 (Cth) (‘FEG Act’).

The FEG Act establishes a scheme which enables employees who have lost their job as a result of the insolvency of their employer to make a claim for unpaid entitlements (an advance) through the Commonwealth. If the claim is accepted the Commonwealth then assumes the place of the employee as a creditor in the winding up and is then entitled to claim repayment of the entitlements paid in priority to other creditors pursuant to section 556 of the Corporations Act 2001 (Cth).

However, not every worker is eligible to claim under FEG Act as the term “employee” has been deemed to exclude contractors and subcontractors. This was the basis of the review as the department Secretary deemed that the Applicant (Mr Roberts) was a contractor and not an employee within the meaning of the term in the FEG Act. Mr Roberts had sought review of this decision asserting his status should have been classed as an employee within the meaning of the FEG Act.

In determining whether Mr Roberts was an employee or contractor, the Tribunal discussed a series of factors beginning at paragraph 51. Following deliberation of the evidence, Mr Roberts was deemed to be an employee within the meaning of the FEG Act and the claim was returned to the Secretary to be assessed in accordance with the Tribunals findings.

Whilst the law is clear that when determining what kind of employment relationship exists “the totality of the relevant relationship needs to be examined …”,the factors discussed do provide a useful general “checklist” that could be used to determine if a worker is an employee or not. The factors discussed are summarised in the following table:

As can be seen, generally what will indicate a contractor relationship is a significant degree of separation between the worker and employer. It is not sufficient to simply label the worker a contractor in an agreement.