Campbell and Secretary, Attorney General’s Department - [2021] AATA 801

Campbell and Secretary, Attorney General’s Department [2021] AATA 801 (9 April 2021)
Division: General Division
File Number: 2018/3931
Re: Paul Campbell
APPLICANT

Secretary, Attorney General’s DepartmentAnd
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:9 April 2021
Place:Sydney

The decision under review is remitted to the Secretary of Attorney General’s Department with the instruction that the oral agreement between Mr Campbell and Sweet House is the governing instrument in this matter.
.........................[SGD]...............................................
Mr S Evans, Member
CATCHWORDS

FAIR ENTITLEMENTS GUARANTEE CLAIM – claim for an advance – applicable governing instrument for the purposes of establishing Applicant’s weekly wage – terms of Applicant’s employment – agreement between Applicant and employer – status of oral agreement – appropriate governing instrument was oral agreement – decision under review remitted

LEGISLATION
Fair Entitlements Guarantee Act2012 (Cth) ss 3,5,10
CASES
Fazio v Fazio [2010] WASC 263
Beezley v Repatriation Commissioner [2015] FCAFC 165
REASONS FOR DECISION
Mr S Evans, Member
9 APRIL 2021

Paul Campbell (‘Mr Campbell’) is the applicant in this matter. Mr Campbell was employed by Sweet House Confectionary or Dolci D’oro (‘Sweet House’) between 1 July 1990 until 20 February 2017 when the company entered liquidation, owing Mr Campbell unpaid wages and entitlements accrued over many years. The Fair Entitlements Guarantee Act2012 (Cth) (‘the FEG Act’) is a legislative safety net that allows financial assistance for employees such as Mr Campbell who lose their jobs and have unpaid employment entitlements. Mr Campbell submits that he had an oral agreement with Sweet House and that any entitlements he is owed should be paid in accordance with that agreement. The Secretary of the Attorney General’s Department (‘the Respondent’) submits that Mr Campbell’s benefits should be calculated based on the appropriate award.
BACKGROUND
Mr Campbell greatly enjoyed his work at Sweet House, a family owned chocolate and confectionary manufacturer and wholesaler. Sweet House was initially established by the parents of Antonio Barbera (‘Mr Barbera’) and Mr Barbera assumed control of the business in approximately 2010.
At Sweet House, Mr Campbell regularly worked 55 hour weeks and up to 90 hours in the weeks before Easter. He never claimed overtime. Because he was always busy Mr Campbell never took annual leave. In the entire period he worked at Sweet House, he required five sick days.
Mr Campbell and Sweet House company director Mr Barbera were friends as well as work colleagues. Mr Campbell regularly attended the Barbera family home for dinner and he considered himself part of the Barbera family for over 30 years. He was best man at Mr Barbera’s wedding and attended the christening of his children. Each year he would spend Christmas with the Barbera family. In an email dated 2 June 2020 he writes in part:
You have to understand that I am not a highly educated person and have little working skills… So I thought that a career in chocolates would offer myself a great future, dispite [sic] all the sacrifices I made, for what I thought was for the good of the business. Not only did I lose my career and future, I also lost my identity as everyone knew me as "The Chocolate Man".
Liquidation of Sweet House and Mr Campbell’s FEG claim
On 20 February 2017 Sweet House was placed into administration and liquidators were appointed on 27 March 2017. On 8 May 2017 Mr Campbell completed a claim form for an advance under the FEG Act in relation to his employment by Sweet House. The claim included amounts in respect of underpaid wages, annual leave and long service leave entitlements.
On 28 August 2017 a delegate of the Secretary determined that Mr Campbell was ineligible for an advance. Based on the information available at the time, the delegate was not satisfied that Mr Campbell was owed any outstanding employment entitlements from Sweet House, as required by the condition of eligibility in section 10(1)(d) of the FEG Act.
Refusal of claim and review
Mr Campbell sought review of the delegate’s decision on 26 September 2017. Following an internal review of the initial decision under section 38 of the FEG Act, a delegate of the Secretary affirmed the initial decision (‘the Review Decision’). The delegate concluded that they could not be satisfied on the basis of the information available that the Applicant was an employee of Sweet House as required by the condition of eligibility in section 10(1)(a) of the FEG Act. The delegate also found that Mr Campbell had not taken reasonable steps for payment of debts as required by paragraph 10(1)(f) of the FEG Act. The delegate wrote in part:
On your FEG claim, you have asserted that you are owed amounts with respect to unpaid wages, annual leave and long service leave. You added a claim for payment in lieu of notice in your request for review. The earliest documented evidence of you seeking payment for your employment entitlements appears to be your proof of debt lodged with the IP [insolvency practitioner] on 8 May 2017. There is no evidence that you made any formal attempts such as contacting the Fair Work Ombudsman over the period you claim you were employed from i.e. 1990 to ensure that you were paid correctly and obtain relevant payroll documentation (e.g. payslips) or employment benefits such as annual leave. During a telephone conversation with the Review Officer on 7 December 2017, you stated that for the last 7 years you had tried to obtain payment for your entitlements and were told that Sweet House would pay you but this never eventuated.
…
I am not satisfied that you took reasonable steps to be paid your accrued employee debts. Therefore, even if I could be persuaded that you were an employee of Sweet House and owed unpaid employee entitlements, I do not consider that you meet the eligibility requirement of section 10(1)(f) of the FEG Act.
On 13 July 2018 Mr Campbell made an application for review of the Review Decision to the Administrative Appeals Tribunal (‘the Tribunal’). Mr Campbell contested the information relied upon in making the Review Decision and stated that he was an employee of Sweet House and that his rate of pay, as negotiated with his employer, was three times his residential rent.
The decision under review
After receiving further information regarding Mr Campbell’s employment with Sweet House, on 21 May 2020 a delegate of the Secretary made a decision under section 37 of the FEG Act to set aside the Review Decision. It was determined that Mr Campbell was an employee of Sweet House and was entitled to a total advance of $129,939.16 with respect to unpaid wages, annual leave, payment in lieu of notice, redundancy and long service leave entitlements.
CONTENTIONS AND ISSUE TO BE DETERMINED
As the Respondent accepts that Mr Campbell was employed by Sweet House from 1 July 1990 through to 20 February 2017, and that he is entitled to an advance in respect of underpaid wages, annual leave and long service leave entitlement, the sole issue for the Tribunal to determine is the applicable governing instrument for the purposes of establishing Mr Campbell’s weekly wage.
Mr Campbell submits that he was remunerated in accordance with an arrangement (‘the agreement’) he made with Mr Barbera. The Respondent contends that there is no evidence that Mr Campbell and Sweet House conducted themselves in accordance with the agreement described. Having regard to the nature of Mr Campbell’s role as a sales representative and delivery driver, the Secretary contends that the appropriate governing instrument is the Storage Services and Wholesale Award 2010 (‘the Award’) and has determined that based on Mr Campbell’s responsibilities he fell within the ‘wholesale employee level 4’ classification.
The weekly wage for this classification under the Award was $787.40. Mr Campbell maintains that pursuant to the agreement made with Sweet House in 2010 he was entitled to a gross weekly wage of $1,670.00.
RELEVANT LEGISLATION
Section 3 of the FEG Act sets out the purpose of the Act:
The main objects of this Act are:
(a) to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:
(i)the employers are insolvent or bankrupt; and
(ii)the end of the employment of the former employees was connected with that insolvency or bankruptcy; and
(iii)the former employees cannot get payment of the entitlements from other sources; and
(b) to allow the Commonwealth to recover the advances through the winding up or bankruptcy of the employers and from other payments the former employees receive for the entitlements.
Section 5 of the FEG Act defines an employment entitlement to mean:
(a) annual leave entitlement; or
(b) long service leave entitlement; or
(c) payment in lieu of notice entitlement; or
(d) redundancy pay entitlement; or
(e) wages entitlement.
Section 5 also provides that the governing instrument for employment means any of the following that governs the employment:
(a) a written law of the Commonwealth, a State or a Territory;
(b) an award, determination or order that is made or recorded in writing;
(c) a written instrument;
(d) an agreement (whether a contract or not).
Section 10 provides the conditions of eligibility for an advance under the FEG Act.
General conditions
(1)A person is eligible for an advance if the Secretary is satisfied of all of the following:
(a) the person’s employment by a particular employer has ended;
(b) after the commencement of this section, an insolvency event happened to the employer;
(c) the end of the employment:
(i) was due to the insolvency of the employer; or
(ii) occurred less than 6 months before the appointment of an insolvency practitioner for the employer; or
(iii) occurred on or after the appointment of an insolvency practitioner for the employer;
(d) the person is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements;
(e) the person has taken steps, so far as reasonable, to prove those debts in the winding up or bankruptcy of the employer;
(f) if the person was owed any of those debts before the insolvency event happened, the person took reasonable steps before that event to be paid those debts;
(g) when the employment ended, the person was an Australian citizen or, under the Migration Act 1958, the holder of a permanent visa or a special category visa;
(h) an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person.
…
EVIDENCE
The terms of Mr Campbell’s employment
Mr Campbell contends that he entered into an oral agreement with Mr Barbera in 2010. The terms of the agreement were that his weekly after-tax income or ‘take-home pay’ would be calculated as a multiple of his weekly residential rent. At the time Sweet House entered liquidation, Mr Campbell’s weekly rent was $420.00 meaning a weekly gross, or pre-tax income, of $1,670.00 was the agreed wage.
For the life of the oral agreement, Mr Campbell concedes that he did not receive a payslip or group certificate. He did not submit a tax return and Sweet House did not pay any income tax on his behalf. In a response to a request from the Secretary for further information and supporting documents Mr Campbell advised on 27 June 2017:
I started working for [Sweet House] on 1 July 1990, for my then best friend Tony Barbera when they first moved into the factory… There was never an employment contract, I was just asked if “I wanted to start selling and delivering chocolates” and they would pay me what they could. At this stage there was only [Mr Barbera] and his sister, mother and father working at the factory. Because I always finished late (5.30-6.00PM) everyone had gone home on payday, so Tony would give me my pay on Saturday mornings from his wallet. So I never received a pay slip either.
My last so-called wage negotiations [was] done during a verbal argument in 2010 when I tried to resign (first of many) and was offered a take-home pay of 3 times my weekly rent (which is why [Sweet House] always paid my rent) which increased each time my rent went up.
But the business could not afford the total increase, so my rent was paid for, and what money I needed to survive. That is when I started making a list of what monies I was receiving, and considered the money I was not receiving as “Money I was Saving for the Future”. Seeing that I was not completely payed [sic], no money was ever deposited into my bank account. I will send what banking information I have and see if I can get a recent bank statement…
So unfortunately I have never had an employment contract, nor have I ever received a pay slip.
[errors in original]
At the hearing Mr Campbell explained the circumstances under which he claimed the oral agreement was made:
MEMBER: When you argued with [Mr Barbera], what did you argue about?
MR CAMPBELL: The first time was, they employed a new sales rep and she got a brand new vehicle and more money than I was earning. And she was only doing the sales rep side, not the weekends and all the extra stuff that I do. So, then, we kind of matched my wages and then, afterwards, we came to an agreement where it was easier just to link it to my - which is about the same as my rent - and we just linked it to my rent. So, every time my rent went up I got a pay rise. It’s only like $10, $15 every time the rent went up.
MEMBER: And that agreement started?
MR CAMPBELL: About 2010 or so.
MEMBER: How did you come to that arrangement?
Mr CAMPBELL: Like I said, just over an argument that I wanted to leave and I can’t afford you to go and I need you and you’re the backbone of our company and all that type of talk. And like I said, I believed it, I was, you know, said he was my best friend, we’d been together, lived together, grew up together.
Mr Campbell confirmed that he never received his full pay under the terms of the oral agreement. His rent was paid by Sweet House along with ‘just enough money to live’. Mr Campbell has provided a hand-written list of dates with dollar amounts next to each entry. He submits that it is a list of cash payments which Mr Barbera made to him between 1 August 2012 and 23 January 2017 as part of his wage. He gave evidence that it was his intention that when Mr Barbera provided the wages which were owed, the cash payments which had been made in the interim would be deducted.
During the term of his employment, Mr Campbell was provided a company vehicle for personal use which was gifted to him when the company went into liquidation. Mr Barbera also provided Mr Campbell with a Rolex watch on the occasion of his twenty-year anniversary of working for Sweet House.
He writes that ‘in the latter stages Sweet House … also paid my Foxtel, Telstra and electricity bills[1]’. He said he did not have a credit or debit card and it was easier to have Sweet House pay his bills instead of going to the post office and doing it himself.
[1] Section 37 Tribunal Documents at [49].
He confirmed at the hearing that Sweet House did not pay him the agreed salary of three times his rent and to his knowledge no record of what he believes he was owed was kept by his employer.
Mr Campbell attempted on a number of occasions to have Sweet House pay the agreed salary. He writes that ‘[i]n the last 7 years I tried to leave several times, but was always told that the company did not have [the] money to pay me out. Once an agreement was made to pay me $1000 a week on top of my pay to address the outstanding money, but not one cent was ever [paid] into my banking account[2]’.
[2] Ibid.
Mr Campbell also submits that during the period in which he was employed he did not take annual leave, did not receive long service leave and took a total of five sick days.
Other evidence
Before the Tribunal is a tenant trust ledger report from Favorito Real Estate which shows the payment history for the rent on Mr Campbell’s residence for the period 7 October 2011 through to 21 December 2017. It is recorded that Mr Campbell’s rent was paid by Sweet House or other associated entities from October 2011 through to March 2017 when Sweet House entered liquidation. It also records that Mr Campbell’s weekly rent was $420.00 when his employment with Sweet House ended.
Australian Taxation Office (‘ATO’) records indicate that salary details for Mr Campbell were provided by Sweet House between 1995 and 2010 and provisional income tax was paid by Sweet House. A spreadsheet from the ATO shows that Mr Campbell’s income during this period ranged from $24,180.00 in 1995 to $40,486.00 in 2010[3].
[3] Ibid, 143.
Mr Campbell told the Tribunal that during the period he was employed by Sweet House he was of the understanding that Sweet House was submitting his tax returns on his behalf but he now understands this to be incorrect.
Before the Tribunal is a notice of assessment for the year ended 30 June 2009 in which Mr Campbell’s income was $38,372.00[4]. A notice of assessment for the year ended 30 June 2010 similarly records his income as $40,186.00[5]. An individual tax return for the period 1 July 2010 to 30 June 2011 shows that Mr Campbell earned a total income of $37,487.00[6].
[4] Ibid, 45.
[5] Ibid, 47.
[6] Ibid, 146.
At the hearing Mr Campbell was asked about his irregular income tax returns. He explained that it was his understanding that the Sweet House company accountant completed his income tax returns on his behalf and he did not usually receive a notice of assessment. Once the return was completed, the company accountant would provide Mr Campbell with his tax refund. He conceded, however, that he had submitted a tax return for the two years for which he received the notice of assessment listed above. He contends that at some time prior to 2010 he was given $4,000.00 by the Sweet House company accountant and informed that was his tax refund for the ‘missing’ years in which he had not submitted a tax return, something he now considers a ‘ruse’.
Prior to the agreement, Mr Campbell submits that he was receiving a net wage of approximately $900.00 per week. Asked why his tax returns record his income being less than the income he now contends he was receiving at that time, Mr Campbell told the Tribunal that he did not check the income amount when he submitted the tax returns. When asked about this he told the Tribunal that he submitted them at that time but not others because at the time there was an additional financial incentive to do so:
MEMBER: There’s notices of assessment that indicate that your weekly income was approximately $700 and you’re telling me that those assessments were done by H&R Block based on information that you provided to them. But now you’re telling me that that information was actually incorrect?
Mr CAMPBELL: Correct.
MEMBER: I’m putting that to you because I’m looking to you for an explanation as to how that would have happened?
Mr CAMPBELL: Well, as I said, I only had - I’ve only ever had three of those assessment papers and as I said, when Mr Rudd offered $1000, I just rushed into - got them off [Mr Barbera] or… [the accountant], one of the two gave them to me. And raced down to H&R Block to get that extra $1000.
MEMBER: But you went down there and did you look at the group certificate and go, hang on a minute, I earnt more than $39,000 this year?
Mr Campbell: Tragically, no.
Mr Campbell’s Australian Superannuation statement show a closing balance at 30 June 2010 of $32,164.17 and $39,231.64 on 30 June 2012 with all deposits from Sweet House.
Upon liquidation, other employees of Sweet House were able to produce employee separation certificates, payslips and PAYG summaries for the period of their employment. Mr Campbell contends that the terms of his employment were agreed between Mr Barbera and himself and Mr Barbera paid him directly in cash.

On 30 August 2019, the Respondent's contacted Mrs Xin Fang (Lucy) Zhu (‘Mrs Zhu’) who is a former employee of Sweet House. Mrs Zhu commenced working for Sweet House in approximately February or March 1994 and continued to work there for 23 years. She confirmed that the business was taken over by Mr Barbera around the time Mr Campbell says he entered into the oral agreement. While Mrs Zhu recalled that Mr Barbera’s father had ‘been good’ to the employees and provided payslips weekly, her recollection was that when Mr Barbera took over the running of the business, ‘it all became very messy’. Mr Barbera did not provide payslips, paid annual leave but without leave loading and did not pay his employees’ superannuation.
ATO records show that Sweet House paid income tax on behalf of Mr Campbell from 31 May 1995 through to 29 September 2010. His reported income during the period was $24,180.00 relating to the 1995 payment and $40.486.00 for the 2009/10 financial year.
CONSIDERATION
Was there an agreement between Mr Campbell and Mr Barbera?
The evidence relating to Mr Campbell’s employment with Sweet House is at best incomplete owing in part to Sweet House’s poor record keeping, particularly after 2010 when reporting to the ATO regarding Mr Campbell’s income ceased. In 2012, payments to Mr Campbell’s superannuation fund by Sweet House also appear to have ceased.
Nonetheless, through the process of making his claim and subsequent reviews and appeals, sufficient evidence has been provided that Mr Campbell has been able to demonstrate that he worked at Sweet House for the period which he claimed. Whilst his employment with Sweet House was initially not accepted as fact by the Secretary, there is now enough evidence for the Secretary to be satisfied that he worked at Sweet House. The Secretary also accepts that Mr Campbell is due the entitlements which he has claimed, notably agreeing that he did not take annual leave for the entire time he was employed by Sweet House. In considering the history of Mr Campbell’s claim, it is apparent that his key contentions have to date proven reliable.
Adding to the lack of certainty about Mr Campbell’s employment status is his self-described ‘old school’ lifestyle whereby he transacted almost exclusively in cash. He did not own a credit or debit card and rarely used his bank account. His trusting relationship with his employer and lackadaisical approach to personal administration has left a dearth of probative evidence on which decision makers might be able to verify the terms of his employment and his income.
I found Mr Campbell to be a credible witness who did his best to assist the Tribunal. Over the course of the hearing it became apparent that Mr Campbell was not particularly concerned with the administration of his financial affairs whilst working at Sweet House and placed a great deal of trust in his employer and particularly Mr Barbera.
The Tribunal accepts that Mr Campbell lived a frugal life over the course of his employment with Sweet House. His work was his identity and his primary focus. He worked long days, attended to the factory after hours when required and never took a holiday. His evidence is that he was able to maintain minimal personal expenditure by using a vehicle provided by Sweet House for his personal use and the company paid for his mobile phone, electricity and cable television.
Mr Barbera provided Mr Campbell cash when he required it for other living expenses and Mr Campbell meticulously recorded these cash payments in keeping with his understanding of the oral agreement. It was his expectation that when he eventually received the backpay he was owed, these cash payments would be deducted from his pay in arrears. He told the Tribunal that in his view the backpay he was owed by Sweet House was his way of saving to buy an apartment.
During the hearing, Mr Campbell addressed the issue of why he worked for six years after the oral agreement was made without being paid in accordance with the terms of the oral agreement. He explained that the business appeared profitable from his perspective and Mr Barbera was purchasing expensive real estate and vehicles. Consequently, he was confident that Mr Barbera’s had the capacity to pay him what he was owed at some point in the future.
The Secretary argued that as Mr Barbera was not contacted to confirm the agreement existed, it undermines Mr Campbell’s claims in relation to the agreement. I place little weight on Mr Barbara’s non-appearance in circumstances where neither the Secretary nor Mr Campbell were able to make contact with him despite numerous attempts to do so. Further, when the prospect of issuing a summons for Mr Barbera to appear before the Tribunal was raised during the hearing, the representative for the Secretary questioned the value of any evidence that Mr Barbera might be able to provide. The Secretary’s representative indicated that even if Mr Barbera were to confirm the existence of an oral agreement consistent with the terms outlined by Mr Campbell, as there was no evidence to demonstrate the parties acted in accordance with such an agreement, his evidence may not be determinative to the outcome of Mr Campbell’s application.
For these reasons the Tribunal accepts Mr Campbell’s account of the discussion he had with Mr Barbera in 2010 regarding an oral agreement. It is also accepted that Mr Campbell understood he would be paid at a rate of three times his rent which would amount to a gross weekly income of $1,670.00 before tax in February 2017 and no further details were settled.
The status of the oral agreement
Having accepted that an agreement was made consistent with the terms described by Mr Campbell, the question for the Tribunal is whether there is sufficient evidence such that the oral agreement should be the governing instrument. for the assessment of Mr Campbell’s employment entitlements. Section 5 of the FEG Act relevantly provides that the governing instrument may, amongst other things, be an agreement or an award.
The Secretary accepts that section 5 of the FEG Act provides that an oral agreement can form the governing instrument. It is also the case that an employer may enter into an agreement with an employee to pay a wage which is more generous than the wage prescribed by an applicable award.
The Secretary proposes that in considering if an agreement exists, the Tribunal should be informed by the conduct of the parties to the agreement after the determination of the agreement. Further, it is argued that the onus is on Mr Campbell to demonstrate the existence of the agreement.
The Secretary also submits that for an agreement to have existed between Mr Campbell and Mr Barbera it must have certain features and characteristics. Specifically, the Secretary contends that for an agreement to exist it must have the following features and characteristics:
(a)it must be consistent with the ordinary meaning of an agreement;
(b)it must govern employment by determining some of the respective rights and obligations of the parties to the agreement;
(c)there must be a mutual intention to be bound by the terms of the agreement;
(d)the terms of the agreement must be certain.
Ordinary meaning of an agreement
The ordinary meaning of an agreement is ‘the act of coming to a mutual arrangement’. Based on Mr Campbell’s account, I am satisfied that the agreement meets this criteria.
Must govern the rights and obligations of the parties to the agreement
The Secretary submits that the conduct of the parties to an oral agreement subsequent to making an agreement can be relied on to determine whether an agreement exists and if so, the terms of that agreement. In considering the actions of both parties subsequent to the agreement, the Secretary argues that there is ‘no evidence’ that Mr Campbell and Sweet House conducted themselves in accordance with the agreement described by Mr Campbell.
The issue of the admissibility of subsequent conduct to identify an informal contract and its terms was considered by the Supreme Court of Western Australia in the matter of Fazio v Fazio [2010] WASC 263 (‘Fazio’). The Court noted that ‘[i]n relation the admissibility of subsequent conduct, the general principle is that subsequent conduct is not to be used as an aid to the construction of an instrument or written agreement[7]’. However, ‘where an informal agreement (oral or inferred) is alleged to have been made on or by a certain date, the conduct of the parties, including conduct subsequent to the postulated date, may be considered in deciding whether a contract has been concluded[8]’.
[7] Fazio v Fazio [2010] WASC 263, 172.
[8] Ibid, 173,
Consistent with Fazio, the Tribunal accepts that conduct of the parties subsequent to Mr Campbell’s oral agreement with Mr Barbera may assist in informing the Tribunal of the terms of that agreement and whether a contract was concluded.
In accordance with the agreement, evidence in the form of the tenant trust ledger confirms Sweet House paid Mr Campbell’s rent from 7 October 2011 until the appointment of administrators in 2017. I note Mr Campbell states that the agreement was made and commenced in late 2010. Evidence as to who paid Mr Campbell’s rent prior to this time is not available to the Tribunal, though Mr Campbell’s testimony was that he attempted to obtain these records but was unable to do so.
In paying Mr Campbell’s rent in accordance with the terms of the agreement the Tribunal finds that the agreement was fulfilled in part by Sweet House. For his part Mr Campbell fulfilled his obligations under the agreement by continuing to work for Sweet House. Sweet House also in part fulfilled its obligations to Mr Campbell through providing cash payments which Mr Campbell recorded so that the terms of the agreement could be met in full at a later date.
Mutual intention to be bound by terms of the agreement
The Secretary argues that for an agreement to exist there must be a mutual intention to be bound by the terms of the agreement. Mr Campbell gave evidence that following the commencement of the agreement he was told by Mr Barbera that Sweet House could not afford to increase his wage and that he was told that he would be repaid at an unspecified time in the future. His evidence is that conversations of this nature were had on multiple occasions, though he was uncertain of exactly when. The outcome of the conversation was always the same in so much as Mr Barbera claimed his was unable to afford to pay Mr Campbell in accordance with the agreement at the time of the conversation, and Mr Campbell continued working at Sweet House, taking cash payments as required and having his rent and certain bills paid by Sweet House.
That Sweet House never completely fulfilled its side of the oral agreement is not in dispute. However, in the circumstance whereby Sweet House partly fulfilled its obligations by continuing to pay Mr Campbell’s rent and provide him cash payments and Mr Campbell fully fulfilled his obligations, I am not satisfied that this fact amounts to a repudiation of the agreement by Sweet House.
Terms of the agreement must be certain
The Secretary contends that without certainty as to the terms of the agreement there is no contract. By Mr Campbell’s account, uncertainty emerged as to when Mr Campbell might be paid in full subsequent to the agreement being made. However, the articulated terms of the agreement were not in question. Whilst Mr Barbera obfuscated around the issue of paying the full terms of the agreement, there is no suggestion that either party sought to renegotiate the terms or withdraw from the agreement.
Beyond Mr Campbell’s account of the agreement, there is a dearth of probative evidence to support his contentions as to the circumstances of his employment. The Secretary submits that for the Tribunal to accept Mr Campbell’s account of the agreement with Sweet House, he is required to prove the existence of that fact.
In support of this contention the Secretary directs the Tribunal to the matter of Beezley v Repatriation Commissioner [2015] FCAFC 165 (‘Beezley’) where the Full Court of the Federal Court found that a decision of the Tribunal can only be made on the basis of relevant probative material:
In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides… If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest[9].

[9] Beezley v Repatriation Commissioner [2015] FCAFC 165, 68.
The evidence relating to Mr Campbell’s remuneration is scarce but it is informative to a point. Mr Campbell’s income tax notice of assessment for the income year ended 30 June 2009 shows his taxable income was $38,372.00, which equates an average gross weekly wage of approximately $738.00. The following financial year his income was $40,186.00 or approximately $773.00 per week. Mr Campbell contends that the documents relating to his assessable income do not reflect the reality of the terms of his employment with Sweet House at those times. He told the Tribunal that his income was closer to $900.00 per week for the period covered by the tax returns which he himself submitted. He claims in retrospect he should have considered them more closely, but he did not do so.
Mr Campbell’s reported income for the 2011 income year was $37,487.00 when his weekly rent was $295.00. That return covers several months after which Mr Campbell says the oral agreement was in place and appears to be inconsistent with the terms of the oral agreement.
There are no documents which report Mr Campbell’s income after the 2011 income year. In considering the reports which are available, it is apparent that should Mr Campbell have been paid in accordance with the agreement, his remuneration would be double his verifiable income prior to the agreement. Mr Campbell submits he was earning more than was stated in his tax returns, but there is no evidence which supports this contention. In circumstances where Mr Campbell confirmed he submitted the tax returns which underestimated his income, the Tribunal is reluctant to accept Mr Campbell’s evidence he was being paid more than he declared to the ATO. However, the incentives to do so are clear and Mr Campbell told the hearing in relation to the tax returns that Mr Barbera ‘lied on these tax returns’ and speculated that Mr Barbera paid ‘the minimum amount so he didn’t have to pay much tax’.
Mr Campbell claims that he was not an ‘ordinary employee’ and the terms of his employment were negotiated directly with Mr Barbera independent of the payroll function at Sweet House. His claim is supported by his close relationship with Mr Barbera, the expensive gift he received to mark the twenty-year anniversary of his employment with Sweet House, confirmation provided by Ms Zhu and the provision of a company vehicle for the entirety of his employment.
It is accepted by the Secretary that Mr Campbell worked for Sweet House from 1990 through to 2017 and it would appear he was never provided a pay slip. The Secretary also accepts that Sweet House paid Mr Campbell’s rent and certain bills, which Mr Campbell contests was part of the agreement. The most compelling evidence which supports this is the tenant trust ledger
Should the Tribunal accept the Secretary’s contention that there was no agreement, the question then becomes to what terms or agreement was Mr Campbell working. Even if the Tribunal accepts that Mr Campbell’s earnings were the amounts verifiable through the ATO records between 1995 and 2011, it is highly improbable that he would work from 2011 to 2017 on undefined terms. The only documentary evidence before the Tribunal relating to both his employment and remuneration during this time is the tenant trust ledger, which confirms, consistent with the agreement, that Sweet House was paying Mr Campbell’s rent.
It is accepted by the Tribunal that there was no certainty as to when and how Mr Campbell would be paid in full in accordance with the terms of the agreement. This, however, is a separate issue from the terms of the agreement, which Mr Campbell has described were clear, understood and certain to him.
In considering the probative evidence, the Tribunal finds that on the balance of probability Mr Campbell and Sweet House conducted themselves in accordance with the agreement.
CONCLUSION
Section 5(d) of the FEG Act stipulates that an agreement (whether contract or not) may be the governing instrument. It does not provide for any other requirements or characteristics of the agreement.
This is an unusual circumstance in that an agreement was made but only part fulfilled by Sweet House. That is was only part fulfilled over an extended period of time is due to a combination of factors including Mr Campbell’s commitment to his job, his misplaced trust in Mr Barbera and failure to seriously consider the prospect that he might not be paid what he was due under the terms of the agreement.
The terms of the agreement as described by Mr Campbell are rudimentary but the fundamentals of his net take home pay were well established and are quantifiable by the tenant trust ledger.
For these reasons, the Tribunal is satisfied that on the balance of probabilities that Mr Campbell made an oral agreement with Sweet House director Mr Barbera. It was an imperfect agreement absent some details, but it was an agreement which was part fulfilled by Sweet House over the course of his employment from 2010 through to Sweet House entering liquidation in February 2017.
The FEG Act at section 5 does not set out any requirements or characteristics of an agreement. Having considered the specific issues and requirements that the Secretary submits would preclude the agreement being the governing instrument, the Tribunal finds the appropriate governing instrument in this application is the oral agreement between Mr Campbell and Sweet House.
DECISION
For the reasons stated above, the decision under review being a decision of the delegate of the Secretary of the Attorney General’s Department dated 21 May 2020 is remitted to the Secretary with the instruction that the oral agreement between Mr Campbell and Sweet House is the governing instrument in this matter.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of

.......................[SGD].................................................
Associate
Dated: 9 April 2021

Date of hearing: 16 December 2020

Applicant: P Campbell

Solicitors for the Respondent: K Cooke, HWL Ebsworth Lawyers

Date of hearing:	16 December 2020
Applicant:	P Campbell
Solicitors for the Respondent:	K Cooke, HWL Ebsworth Lawyers