Dunlop and Secretary, Attorney-General's Department

The Administrative Appeals Tribunal considered a claim by the Applicant for an advance on redundancy pay under the *Fair Entitlements Guarantee Act 2012* (Cth). The Applicant sought this advance from the Secretary, Attorney-General's Department, following the termination of his employment with Northern Oil & Gas Australia Pty Ltd (NOGA). The core dispute revolved around whether NOGA qualified as a "small business employer" for the purposes of the *Fair Work Act 2009* (Cth), which would exclude the Applicant's entitlement to redundancy pay.

The Tribunal was required to determine two primary legal issues. Firstly, whether the definition of a "small business employer" under the *Fair Work Act 2009* should be expanded beyond the statutory employee count to include factors such as asset value and revenue. Secondly, and crucially, the Tribunal had to ascertain whether Upstream Production Solutions Pty Ltd (UPS) was an "associated entity" of NOGA, such that the employees of both companies could be counted together to determine if NOGA exceeded the threshold for being a small business employer.

The Tribunal reasoned that the definition of a "small business employer" under section 23 of the *Fair Work Act 2009* is explicitly based on the number of employees, and there is no provision within the Act for considering other financial factors like asset value or revenue. Regarding the associated entities question, the Tribunal noted that section 23(3) of the *Fair Work Act 2009* mandates that associated entities are to be taken as one entity for the purpose of calculating employee numbers. The Tribunal directed the parties to make further submissions on whether UPS and NOGA were associated entities under sections 50AA and 50AAA of the *Corporations Act 2001* (Cth), which define control and associated entities.

Ultimately, the Tribunal affirmed the initial decision that the Applicant was not entitled to redundancy pay. This was because NOGA was found to be a small business employer, employing fewer than 15 employees at the time of the Applicant's termination. The Tribunal concluded that the Applicant's arguments for expanding the definition of a small business employer were not supported by the legislation, and it was not established that UPS and NOGA were associated entities for the purposes of the *Fair Work Act 2009*.