Gayed and Secretary, Department of Jobs and Small Business
[2019] AATA 1132
•5 June 2019
Gayed and Secretary, Department of Jobs and Small Business [2019] AATA 1132 (5 June 2019)
Division:GENERAL DIVISION
File Number: 2017/6665
Re:Mr Wahed Gayed
APPLICANT
AndSecretary, Department of Jobs and Small Business
RESPONDENT
DECISION
Tribunal:Ms Anna Burke AO, Member
Date:5 June 2019
Place:Melbourne
The Tribunal sets aside the decision under review and remits it to the Secretary, Department Jobs and Small Business to recalculate Mr. Gayed’s entitlements on the basis set out in this decision.
..........[sgd]..............................................................
Ms Anna Burke AO, Member
Catchwords
EMPLOYMENT - fair entitlements guarantee - entitlement to redundancy payment - when did employment cease - whether Applicant was employed by a small business - discretion to waive a debt - decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Fair Entitlements Guarantee Act 2012Fair Work Act 2009
Cases
Mi and Secretary, Department of Employment [2016] AATA 419
Kita and Secretary, Department of Employment [2016] AATA 214
REASONS FOR DECISION
Ms Anna Burke AO, Member
Mr. Gayed (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Jobs and Small Business (the Respondent) that he was entitled to a Fair Entitlement Guarantee (FEG) advance for wages and annual leave, but was not entitled in respect of redundancy as originally determined and had a debt of $6,829.19.
On 12 October 2017 the decision-maker at the FEG branch advised Mr. Gayed that he was entitled to $23,972 in unpaid wages and $8,174.73 in respect of outstanding annual leave entitlements. Additionally, they advised that he had received $20,284 in respect of a redundancy entitlement his employer was not obliged to pay and therefore he had an overpayment of $6,829.19 in FEG assistance and was required to repay this amount.
On 8 November 2017 Mr. Gayed sought a review of the FEG branch decision-maker’s determination by this division of the Tribunal. His reasons for seeking a review were that:
The decision has been made that I am not entitled to any [r]edundancy and a decision has also been made regarding my wages. I disagree with both. I disagree with the [r]edundancy decision. I disagree with the wages decision. I disagree with the calculation made.
BACKGROUND
Mr Gayed commenced full-time work with Eliana Construction and Development Group (Eliana Construction) on 18 May 2009 as a site supervisor; which involved overseeing operations on a day-to-day basis ensuring the work was done in a safe manner, delivered on time, within budget and to the right quality standards. The director of the company, Mr. Magdy Sowiha, is Mr. Gayed’s cousin and brother-in-law. The company’s principal activities were building and construction of townhouses and apartment developments, employing in excess of 70 people.
Eliana Construction was placed into administration on 11 October 2016 and liquidators were appointed on 3 November 2016. Prior to Eliana Construction being placed into administration, the majority of their staff were terminated on 25 September 2016.
On 22 November 2016, Mr. Gayed submitted a claim under the FEG program in respect of unpaid wages, annual leave entitlement, payment in lieu of notice, long service leave and redundancy payment. On the form he indicated his final day of employment was 11 October 2016.
On 20 March 2017 the decision-maker determined Mr Gayed was entitled to $35,578.92 (before tax) in respect of wages, annual leave, payment in lieu of notice and redundancy. The decision-maker based the determination of Mr. Gayed’s entitlements on the assumption that his employment ended on 25 September 2016 and that he had an entitlement attributable to one or more employment entitlements. The amount of the FEG advanced was broken down as follows:
Wages | Annual leave | Payment in lieu of notice | Redundancy | Long Service Leave |
| $200.40 | $5,874.52 | $9,220.00 | $20,284.00 | $0 |
The decision-maker provided reasons for the amount advanced under subsection 15(2) of the Fair Entitlements Guarantee Act 2012 (the FEG Act). Unpaid wages had been calculated on the basis of information provided, which included payslips up to the pay period ending 19 June 2016. This was the first date the decision-maker determined Mr Gayed had ceased work with Eliana Construction, as no evidence of work beyond this period had been found. Records indicated that Mr. Gayed had received the majority of his wages between 6 June 2016 and 19 June 2016 and therefore he was entitled to $200.40 in unpaid wages by the company. The decision-maker noted Mr Gayed had provided information that he had worked beyond 19 June 2016 but they could not establish what capacity the Applicant performed work for the company. Mr. Gayed did not receive written notice of termination from Eliana Construction.
On 10 April 2017, Mr. Gayed requested an internal review of the decision as he had claimed $38,880 for unpaid wages and had only been advanced $200.40. He said “the amount is a little short”.
On 22 June 2017 an email from the liquidators to the review officer indicated that, whilst the books and records did not have any information that would suggest Mr. Gayed had provided service during the period in question, based on correspondence to date with company director and key company personnel he was providing services up to the date of the administrators appointment. Correspondence noted on the day of the liquidators’ appointment Mr. Gayed had been involved in some form of handover on unfinished projects of the company.
Between 22 June 2017 and 5 July 2017, numerous emails between the liquidator and the review officer indicate that the majority of employees at Eliana Construction were terminated on or prior to 25 September 2016. The majority were terminated around this time without formal notification; however five employees (all of whom were relatives of the owner) were employed by the company up to 11 October 2016. Three of the employees were deemed to now be employed by a small business employer and were therefore not entitled to a redundancy payment. One employee was employed under a building and construction award, which did not exclude small employers from making redundancy payments, and the other employee did not assert that he was terminated at this later date. The review officer noted:
unless my inference is incorrect, or unless notice of termination was provided to the review seekers on or prior to 25 September 2016 (this does not appear to be case based on the fact that we have remitted PILN entitlements across the board) no redundancy was payable to those employees terminated as at 11 October 2016 under the terms of the (Fair Work) FW Act.
On 6 July 2017 the review officer sent an email to Mr. Gayed which advised that under the FEG, unpaid wages are limited to the 13 week period at the earlier of the time the person’s employment ended or the first time an insolvency practitioner has the power (however expressed) to control or manage employment by the employer. Therefore, Mr. Gayed wages entitlement period (WEP), as defined by the FEG Act, was assessed as 13 July 2016 to 11 October 2016. Mr. Gayed’s bank statements demonstrated he had not been paid for this period and, based on his weekly wage rate, was entitled to $23,972. However, the review officer went on to note that the first assessment had determined Mr. Gayed had been terminated on 25 September 2016, and was therefore entitled to 11 weeks redundancy; based on the business being a large employer with 15 or more employees at the time. As Mr. Gayed was an award free employee at the time, his redundancy entitlements were calculated in accordance with the Fair Work Act 2009 (the FW Act), which excludes small business employers from the obligation to pay redundancy. Consequently, Mr. Gayed was not entitled to the redundancy payment and had a debt owing to the Commonwealth based on the amount advanced in respect of his redundancy, minus the unpaid wages the reviewer determined he was now owed.
On 12 October 2017, the decision-maker advised Mr Gayed in writing that he had set aside the first decision of 20 March 2017—regarding the amount of his FEG advance—and substituted a decision that he was eligible for an additional $26,071.81 for wages and annual leave; but had been overpaid $20,284 in redundancy and received $5,532 in wages from the company during the WEP. Therefore, Mr. Gayed owed a debt of $6,829.19.
ISSUES IN CONTENTION
The issue for the Tribunal is whether Mr. Gayed was entitled to an advance payment in respect of redundancy and what amount of advanced payment Mr Gayed was entitled to in respect of wages.
LEGISLATIVE FRAMEWORK
The FEG Act provides for the Commonwealth to make payments owed to employees if their employer becomes insolvent. The Commonwealth advances the entitlements to the employees and then seeks to recover the advances from the insolvent employer.
Section 3 of the FEG Act clearly outlines the objectives 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 6 of the FEG Act identifies kinds of employment entitlements which can be included as payment:
(1) This section defines the various kinds of employment entitlements of a person whose employment by an employer has ended, by reference to the person's entitlements under the governing instrument for the employment.
Annual leave entitlement
(2) The person's annual leave entitlement is the amount the person is entitled to under the governing instrument from the employer for paid annual leave that the person:
(a) had accrued at the end of the employment; and
(b) had not taken by then.
Long service leave entitlement
(3) The person's long service leave entitlement is the amount the person is entitled to under the governing instrument from the employer:
(a) for long service leave that the person had accrued at the end of the person's employment and had not taken by then; or
(b) on account of long service leave that, had the person's employment continued until the person qualified for long service leave, would have been attributable to the period before the actual end of the person's employment.
Payment in lieu of notice entitlement
(4) The person's payment in lieu of notice entitlement is the amount the person is entitled to under the governing instrument from the employer for a shortfall in the period of notice of termination of the employment.
Redundancy pay entitlement
(5) The person's redundancy pay entitlement is the amount of redundancy pay the person is entitled to under the governing instrument from the employer for termination of the employment.
Wages entitlement
(6) The person's wages entitlement is the amount of wages the person is entitled to under the governing instrument from the employer for work done, or paid leave taken, in the wages entitlement period.
Entitlement unaffected by payment
(7) The person's receipt of some or all of an amount he or she was entitled to under the governing instrument does not affect what is the person's annual leave entitlement, long service leave entitlement, payment in lieu of notice entitlement, redundancy pay entitlement or wages entitlement under this section.
Example: If:
(a) under the governing instrument, the person accrued 8 weeks of annual leave that had not been taken by the end of the person's employment; and
(b) the employer paid the person for 3 of those weeks;
the person's annual leave entitlement is the entitlement to be paid for 8 weeks annual leave.
The wage entitlement period is defined in section 5 of the FEG Act:
"wages entitlement period" for a person whose employment by an employer has ended means the 13 weeks ending at the earlier of the following times (or either of those times if they are the same):
(a) the time the person's employment ended;
(b) the first time an insolvency practitioner has power (however expressed) to control or manage employment by:
(i) the employer; or
(ii) if the person was employed for a partnership by 2 or more partners--any of the partners who employed the person.
Section 119 of the FW Act outlines an employee’s entitlement to redundancy pay:
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee's base rate of pay for his or her ordinary hours of work:
Redundancy pay period
Employee's period of continuous service with the employer on termination
Redundancy pay period
1
At least 1 year but less than 2 years
4 weeks
2
At least 2 years but less than 3 years
6 weeks
3
At least 3 years but less than 4 years
7 weeks
4
At least 4 years but less than 5 years
8 weeks
5
At least 5 years but less than 6 years
10 weeks
6
At least 6 years but less than 7 years
11 weeks
7
At least 7 years but less than 8 years
13 weeks
8
At least 8 years but less than 9 years
14 weeks
9
At least 9 years but less than 10 years
16 weeks
10
At least 10 years
12 weeks
Section 121 of the FW Act outlines the exclusions from obligation to pay redundancy pay:
(1) Section 119 does not apply to the termination of an employee's employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):
(a) the employee's period of continuous service with the employer is less than 12 months; or
(b) the employer is a small business employer.
(2) A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee's employment.
(3) If a modern award that is in operation includes such a term (the award term ), an enterprise agreement may:
(a) incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and
(b) provide that the incorporated term covers some or all of the employees who are also covered by the award term.
EVIDENCE
Mr. Gayed advised the Tribunal that he was seeking to be paid his outstanding entitlements, being wages for work he had performed for the period May 2016 to September 2016—the period he was last paid until the company ceased trading—and his redundancy payment; explaining he did not care about the two extra weeks payment.
Mr. Gayed advised the Tribunal that following his termination from Eliana Group, due to redundancy, he had been unemployed for a year and a half, had received no income and was living off savings; which had put an enormous strain on his family as his wife suffers ill-health and they have two children to support.
Mr. Gayed advised the Tribunal that he had agreed to assist the company director, his brother-in-law, in those final two weeks to secure the company’s numerous construction sites (which had been unmanned since the company had terminated all its workers) and to remove all materials, tools and equipment to a safe location. He performed this work for two weeks and provided timesheets to the administrators who had been appointed to liquidate the business. He never received payment for the work he provided.
Wages entitlement
Mr. Gayed provided the following statement dated 19 August 2018 to the Tribunal:
On 25 September 2016 the day Eliana Group shut down I was called to office to speak with Magdy the director of the company (Eliana Group) for an important matter. Magdy asked me to help him secure the leftover materials and tools from all the jobsites that were left unmanned since the company had no workers active. He also told me to make a timesheet for the two weeks that will be using to do this extra work. He then stated that I hand in the timesheets (T22) and ‘he will try to make something happen’.
I agreed out of generosity and the fact that he is my brother in law to help Magdy in this urgent of a matter. So I did what was discussed above and handed in the timesheet (T22).
The issue is; I claimed a wage amount of $36,880.00 from FEG, so then an amount of $18,440 was verified (due to the Wage entitlement period). However $200.40 was paid (T31).
As for the Redundancy, Initially an amount of $20,240.00 was paid. But, then FEG came to the conclusion that the $20,284.00 (Redundancy) is an overpayment due to the timesheet that was handed in (T22). The Period (time and date) of work written on the timesheet (T21) was the period when the company (Eliana group) had less than 5 employees working. This terminated my right to a redundancy payment
It came to my attention that the 13 weeks of Wage Entitlement period payment $23,972.00 (T31 page 299) which was then reduced to $18,239.60 due to the “gross payment received from the company”. When calculation was made it came to the conclusion that I now owe the amount of $6,829.19. This issue is; why was the $5,532.00 deducted from the initial amount of $23,972.00. As stated I did receive this payment ($5,532.00) from the company, this amount… was not paid in one payment, it was in fact paid in fragments all the way from May 2016 till the company closed (25th September). According to the bank statements that was sent to FEG this amount was paid from company (Eliana Group) well before the Wage entitlement Period. [sic]
Mr. Gayed advised the Tribunal at the hearing he believes he had not received his full fortnightly pay entitlement from Eliana Group since May 2016. Mr. Gayed’s final pay slip, dated 6 June – 19 June 2016, indicated his salary package was $3,688 per fortnight and his net pay was $2,759.90. An inspection of Mr. Gayed’s bank statements during the hearing revealed the following:
Date
Banked Amount
Description
Pay Slip Amount
Account 1
1 April
$2,496.85
Salary Eliana
Net pay $2,496.85
18 April
$2,496.85
Salary Eliana
Net pay $2,496.85
29 April
$2,496.85
Salary Eliana
net pay $2,496.85
13 May
$0
Salary Eliana
net pay $2,529.62
10 June
$500
Eliana payroll
net pay $2,759.52
20 June
$1,000
Eliana payroll
no pay slip
11 July
$1,000
Eliana payroll
no pay slip
1 August
$2,759.90
Eliana payroll
no pay slip
16 August
$1,379.95
Eliana payroll
no pay slip
Account 2
27 May
$2759.90
salary Eliana
net pay $2,759.90
24 June
$1259.90
salary Eliana
net pay $2,759.90
Mr. Gayed disputed that he had received wages for work done during the WEP period. He argued that payments made to his bank account were for outstanding wages from before 16 June 2016. He indicated the inconsistency in payment amounts, pointing to his bank statements as corroboration of this assertion.
The Respondent calculated that Mr. Gayed had been underpaid $7,049.729 (net) from 13 May to 11 July 2016; they then asserted: “The amount by which the applicant looks to have been underpaid exceeds the amount subsequently paid by Eliana Construction of $4,139.85(net).”
The Respondent contended Mr. Gayed had not provided sufficient evidence to enable the Tribunal to be properly satisfied that the payments from Eliana Construction during the WEP were payments towards debt for previous unpaid wages. Therefore, the Respondent contends that payments made to Mr. Gayed were appropriately deducted for the purposes of calculating his advance in respect of unpaid wages.
The Respondent contended that Mr. Gayed’s WEP was from 13 July 2016 to 11 October 2016 being the 13 week period ending on the date the administrators were appointed to Eliana Construction.
The decision-maker noted the insolvency practitioner had advised that the books and records of Eliana Construction did not have any timesheets, pay slips or records from 20 June 2016 onwards. The Respondent indicated at the hearing that there was insufficient evidence to ascertain the reasons for the payments made to Mr. Gayed during the WEP.
CONSIDERATION
Wages Entitlement Period
The decision before the Tribunal boils down to when was Mr. Gayed’s employment with Eliana Construction terminated. The Tribunal, like the decision-maker, finds there is scarce evidence on which to base Mr. Gayed’s termination date.
Originally the decision-maker determined Mr. Gayed had been paid until 19 June 2016, receiving the majority of his wages and, therefore, was only entitled to $200.40. They determined that the termination date for Mr. Gayed was 25 September 2016, the date the liquidator advised the majority of employees had ceased work (the Tribunal notes that this was a Sunday). On review, they revised the termination date, determining that Mr. Gayed was terminated on 11 October 2016.
The decision-maker had little evidence on which to base the determination that Mr. Gayed finished on 11 October 2016, outside of Mr. Gayed’s own statement, which they originally ignored. The date was not based on a written notice of termination, pays slips for the period or company records. The decision-maker noted that none of these were located by the liquidator.
The time sheets Mr. Gayed provided for the period from 25 September to 11 October 2016 were requested by his brother-in-law, to be provided to the administrator, on the basis that he would see what could be done; not on the basis that he had any ability to make the payment. Mr. Gayed had last received a partial wages payment from Eliana Construction in August 2016.
The Tribunal notes it could be argued Mr. Gayed was employed by the administrator during the period 25 September 2016 – 11 October 2016; or that he was not actually working but assisting his relative, as all five staff left during this period were related to the owner/company director of the business. However, without additional corroborating evidence, the Tribunal must rely on the Centrelink Employment Separation Certificate provided by Mr. Gayed’s employer which indicates his employment ceased on 11 October 2016.
The Tribunal finds that Eliana Construction had underpaid Mr. Gayed a total of $7,049.72 in the pay period 13 May until 11 July 2016. The Tribunal accepts Mr. Gayed’s assertion that the payment of $4,139.84 ($5,532 gross) in August 2016 was towards the outstanding wages owed, and notes he was still owed $2,909.87 in lost wages.
The Tribunal finds the gross amount of $5,532 should not have been withheld from Mr. Gayed’s WEP period under the original review calculation based on a WEP of 13 July to 11 October 2016.
Redundancy Payment
Mr. Gayed, on his original FEG claim form, indicated his role was that of site manager and that he was terminated on 11 October 2016. However, the original second decision-maker assessed that he had been terminated on 25 September 2016 when the majority of other employees had been terminated. Mr. Gayed was therefore awarded a redundancy payment under the FEG program on the basis he was entitled to such a payment under the FW Act.
Mr. Gayed maintained that he was entitled to a redundancy payment as he had worked for the company for nine years before being made redundant. Mr. Gayed could not understand the distinction between himself and the rest of the Eliana Construction’s workforce, the majority of whom had received a redundancy payment under the FEG program.
Mr. Gayed argued that his final two weeks of employment were at the request of the company director, but under the guidance of the liquidator to whom he provided his timesheets. At the Tribunal hearing, Mr. Gayed inferred that his last day with Eliana Construction should be taken as 25 September 2016, when the majority of staff were terminated, and not 11 October 2016 when he ceased assisting his brother-in-law.
The Respondent’s representative argued that Mr. Gayed was not entitled to an advance in respect of redundancy pay, as immediately before the time of termination, on 11 October 2016, he was one of only five employees at Eliana Construction. Therefore, the business was a small business employer and in accordance with section 121 of the FW Act, and it had no obligation to pay its employees redundancy payment.
The Respondent contended Mr. Gayed’s employment with Eliana Construction was terminated on 11 October 2016 in accordance with the separation certificate provided by Mr. Gayed and information provided by the insolvency practitioner. Therefore, immediately prior to the company being placed into liquidation Mr. Gayed was employed by a small business. To emphasise this point, the Respondent referred the Tribunal to the matter of Mi and Secretary, Department of Employment where the Member found at [23]:
With some regret, I conclude that it is not open to me sitting as the decision-maker in this case to insert a different test in s 121(1) for determining the time at which an employer was a small business employer. For example, it is not open to me to insert a longer or different date, such as immediately before the time at which the employer company is placed into administration/liquidation. Sitting as the Tribunal, I am required to apply the unambiguous language chosen by Parliament and that language drives the conclusion that the relevant date to consider in this case is 4 October 2013 being both the date of the Applicant’s termination of employment and the date of the notification to her of that termination. I am clearly not at liberty to look to an earlier date such as the date immediately prior to the commencement of the administration.
Thus, the critical conclusion is that the case turns on whether Auto Tuft was a small business employer on 4 October 2013.
…
On 4 October 2013, Auto Tuft was a small business employer for the purposes of s 121 of the Fair Work Act because it employed only five employees and did not have any associated entities that also employed employees.
Accordingly, it is with some regret that this Tribunal must reach the conclusion that the Applicant is excluded by s 121 from an entitlement to a redundancy payment under the Fair Work Act. On that basis, the Applicant does not have a 'redundancy pay entitlement' within the meaning of s 6(5) of the FEG Act and is ineligible for an advance under the FEG Act in respect of such an entitlement.
This an unfortunate result which I doubt was an intended outcome but the law in respect of administration is clear and gives rise to the result that in this case the Applicant does not have a redundancy pay entitlement.
The Respondent contended that there was no dispute between the parties that Mr. Gayed was a non-award employee and, therefore, his redundancy payment was in accordance with the FW Act. Mr. Gayed was not represented at the hearing and the Tribunal is not convinced that Mr. Gayed fully appreciated this contention.
The Tribunal is mindful that when Mr. Gayed was employed by Eliana Construction they were a large employer and he held the firm belief that his terms of employment included an entitlement to redundancy. The Tribunal is also concerned that at no stage did Mr. Gayed’s employer, or the appointed liquidators, explain to him the consequences of his generous actions in assisting the company to secure significant assets during his two additional weeks—which resulted in the decision-maker’s determination that he is ineligible for a redundancy payment.
It was the decision-maker’s determination that Mr. Gayed’s position as site manager fell outside the scope of the modern award coverage, and therefore determined he was an award free employee. They surmised that, as Mr. Gayed had noted his occupation as site manager on his FEG claim form, the relevant award did not cover his position. However, they qualified this, noting that Mr. Gayed had stated he been employed under a letter of employment but no further information had been provided to clarify the actual basis on which he was employed.
The Tribunal has considered whether Mr. Gayed was indeed award free on the date of his termination and refers to the matter of Kita and Secretary Department of Employment where Deputy President Frost at [11] found:
The Secretary decided that Mr Kita was eligible for an advance, but - and this is where the dispute is centred - that he had no 'redundancy pay entitlement' in respect of any period of employment prior to 1 January 2010.
The reason for the 1 January 2010 cut-off is that the Secretary concluded that Mr Kita was not covered by the Award. As an 'award-free' employee, and with no reference to redundancy pay in his employment contract (see [17]-[19] below), if Mr Kita were to have an entitlement to redundancy pay it could only be in reliance on the National Employment Standards contained in the Fair Work Act 2009 (FW Act), and then only subject to the conditions and restrictions in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW Transitional Act).
….
The answer to the question whether a person’s employment is covered by an award is not to be found in the title given to the employee because the job title may mislead as to the nature of the job: Joyce v Christofferson (1990) 33 IR 390, per Grey J at 405.
In Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387, a Full Bench of the Australian Industrial Relations Commission said at [9]:
In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.
The Tribunal has then considered the definition of employees covered under the Building and Construction General On-site Award 2010 which states:
This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule B—Classification Definitions to the exclusion of any other modern award
B.1.4 Fields of work means a defined grouping of logically related skills based on an efficient organisation of work.
B.1.5 General construction stream includes all fields of work principally concerned with general building and construction, including the erection of new structures or buildings (including demolition and pre-construction) and fitout and finishing activities relating to newly constructed or existing buildings or structures, and does not extend beyond the scope of this award.
The Tribunal finds that Mr. Gayed’s role with Eliana Construction could not be deemed to be covered by the Building and Construction General On-site Award.
The Tribunal finds that Mr. Gayed was terminated by Eliana Construction on 11 October 2016, which was a small business employer at that time. Therefore, the Tribunal determines that he was not entitled to a redundancy payment under the FW Act.
DECISION
The Tribunal sets aside the decision under review and remits it to the Secretary, Department Jobs and Small Business to recalculate Mr. Gayed’s entitlements on the basis that his wages entitlement during the WEP period of 13 July to 11 October 2016 should not be discounted by amounts paid by Eliana Construction in that period; as those were payments towards historic debt and not wages for that period.
The Tribunal is unable to determine Mr. Gayed’s final FEG advance, or if he would still incur a debt based on this decision and remits to the Secretary for recalculation.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member
...........[sgd].............................................................
Associate
Dated: 5 June 2019
Date of hearing: 7 March 2019 Advocate for the Applicant: Self-Represented Advocate for the Respondent: Mr Lex Holcombe
Solicitors for the Respondent: HWL Ebsworth Lawyers
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