Bhagwandas and Secretary, Attorney-General's Department

This matter concerned an application by Mr Bhagwandas for an advance under the Fair Entitlements Guarantee scheme, with the Secretary of the Attorney-General's Department as the respondent. The central dispute revolved around whether commission payments earned by Mr Bhagwandas as a real estate agent constituted a "wages entitlement" for the purposes of the scheme. The decision was made by Dr Stewart Fenwick, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine what constituted a "wage" under the relevant statutory scheme, and specifically whether commission payments made to a real estate agent qualified as such. This involved considering whether commission payments were an "amount" and whether they were paid "regularly," as required by the Act, and distinguishing them from other payments such as discretionary bonuses or reimbursements. The Tribunal also had to consider when a commission entitlement arose, with submissions suggesting it was earned upon the making of a binding offer for a property sale.

The Tribunal reasoned that while the parties agreed on Mr Bhagwandas's general eligibility, the definition of "wage" was critical. It rejected the argument that the definition of wage in the *Corporations Act 2001* should apply, and instead focused on the specific provisions of the scheme governing the application. The Tribunal noted that for an amount to be considered a wage, it must be identified separately and paid regularly, and expressed doubt that a percentage commission, which is variable and dependent on unpredictable sales performance, could be considered an "amount" or paid "regularly." While acknowledging evidence of fortnightly payments and a small retainer, and that commissions were sometimes passed on to former employees, the Tribunal also noted that the payslips recorded base salary as $0.00 and that Mr Bhagwandas was entitled to bonuses, which are explicitly excluded from wages.

Ultimately, the Tribunal found that the focus should be on the work performed in securing a sale, and that the head sales commission constituted a wages entitlement. Accordingly, the Tribunal set aside the previous decision and remitted the matter for reconsideration, directing that Mr Bhagwandas was entitled to an advance in respect of the balance of any commissions outstanding for properties sold within the wages entitlement period.