Mackay and Secretary, Attorney General’s Department

The Administrative Appeals Tribunal considered a dispute between Mr. Mackay and the Secretary of the Attorney-General's Department concerning eligibility for an advance payment under the Fair Entitlements Guarantee Act 2012 (Cth). Mr. Mackay had received an advance payment, which the Secretary later reconsidered and decided he was not eligible for. The core of the dispute revolved around whether Mr. Mackay was an employee of PPA Contractors (or a related company) or Roni's Discount Variety Stores, given a tripartite labour hire arrangement.

The Tribunal was required to determine the true nature of the employment relationship between Mr. Mackay, PPA Contractors, and Roni's. Specifically, the legal issue was whether Mr. Mackay was an employee of PPA Contractors or any company within the PP Group at the time his employment ended, for the purposes of section 10 of the Fair Entitlements Guarantee Act. This involved assessing various indicia to ascertain who exercised practical and legal control, who bore the characteristics of an employer, and who the worker was hired by, considering the totality of the relationship.

The Tribunal applied established legal principles for determining employment status in labour hire arrangements, examining factors such as the contractual relationship, the practical working relationship, and the allocation of rights and responsibilities. Despite the Letter of Engagement referring to PPA as the "employer," the Tribunal found that the terms, when considered in their entirety, suggested Roni's was the actual employer and PPA acted as a hiring partner, likely for payroll purposes. The goodwill generated by Mr. Mackay's work enured to Roni's benefit, not PPA's. Consequently, the Tribunal concluded that Mr. Mackay was an employee of Roni's, not PPA or any PP Group company, during the relevant period.

The Tribunal affirmed the Secretary's decision that Mr. Mackay was not eligible for an advance under section 10 of the Fair Entitlements Guarantee Act. The application for review was therefore unsuccessful. The Tribunal noted the potential hardship for Mr. Mackay and suggested the Secretary might consider this in relation to any arrangements for the repayment of the advance.