FULGER And SECRETARY, DEPARTMENT OF EMPLOYMENT

[2014] AATA 275

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )

)No: 2013/5882

General Administrative Division               )

Re: LAURA FULGER

Applicant

And: SECRETARY, DEPARTMENT OF EMPLOYMENT

Respondent

DECISION

TRIBUNAL:             Deputy President J W Constance

DATE:                      3 April 2014

PLACE:                   Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the decision of the respondent made 24 October 2013 is affirmed.

...........................[sgd].......................

Deputy President

[2014] AATA 275

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5882
Re	Laura Fulger
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

REASONS FOR DECISION

(EDITED TRANSCRIPT OF REASONS GIVEN ORALLY)

Deputy President J W Constance

1. This is an application by Ms Fulger to review a decision of the Secretary of the Department of Employment, made on 24 October 2013, that she was not entitled to a Fair Entitlement Guarantee advance under the provisions of the Fair Entitlements Guarantee Act2012 (Cth).

2. For the reason which follows, the decision under review will be affirmed.

3. The facts in this matter are not in dispute.  Ms Fulger was employed by Fortior Global Proprietary Limited having commenced in the position of client manager on 1 July 2012.  The company went into liquidation on 23 May 2013 and Ms Fulger was informed that her position was made redundant on that day.  In fact, her last day of employment by the company was 23 May 2013. 

4. At the time of the termination of her employment, Ms Fulger held a Temporary Business Entry (Class UC) Business (Long Stay) (sub-class 457) visa.  This was the only visa which she held at the time.  That visa was granted on 19 October 2010 and is valid until 19 October 2014.  Ms Fulger made the application for the advance under the Act on 29 May 2013. 

5. Section 10 of the Act sets out the eligibility requirements for a person to be entitled to an advance. The Act generally makes provision for payments to employees who have ceased to be employed by reason of the insolvency of the employer. It is designed to remedy the situation of employees, through no fault of their own, suffering a loss. However, the provisions of section 10 are clear, and there is no discretion in this Tribunal to grant an entitlement outside of the provisions of the section.

6. Subsection 10 reads in part:

   (1)A person is eligible for an advance if the Secretary is satisfied of all of the following:

   …

   (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;

7. Ms Fulger does not dispute that at the time her employment ended she was not an Australian citizen and that she did not hold a permanent visa or a special category visa. It is clear, therefore, that Ms Fulger does not meet the requirements of section 10 of the Fair Entitlements Guarantee Act 2012, and is not entitled to the advance that that Act provides.  For these reasons, the decision under review is affirmed. 

8. I should add in conclusion that in my view it is unfortunate that resources of the Commonwealth, both of the Department and this Tribunal, have been taken up in an application to the Tribunal which Ms Fulger acknowledges had no prospects of success. Ms Fulger has lodged with the Tribunal a detailed statement of her reasons why she considers that this law is unfair. As I indicated at the outset, the Tribunal must apply the law as it is. It has no power to change the law and in this case there is no discretion given to the Tribunal. In fact this is a matter which, in my view, could have been appropriately dealt with under section 42B in the Administrative Appeals Tribunal Act1975 (Cth) which provides that the Tribunal may dismiss proceedings that are found to be frivolous or vexatious. However that step was not taken, nor did the Secretary seek to apply to the Tribunal to take that action.