O'Dwyer and Secretary, Attorney-General's Department

The Administrative Appeals Tribunal considered an application by Mr O'Dwyer concerning his entitlement to a Fair Entitlements Guarantee (FEG) advance for redundancy pay. The dispute centred on whether Mr O'Dwyer qualified as an "excluded employee" under the relevant legislation, thereby disentitling him to the advance. The decision was made by Emeritus Professor P A Fairall, Senior Member.

The primary legal issue before the Tribunal was to determine whether Mr O'Dwyer was an employee for the purposes of the FEG Act, specifically whether he fell within the definition of an "excluded employee" as defined by subsection 556(2) of the Corporations Act 2001 (Cth). This required an examination of the common law concept of employment, given that the term is not explicitly defined in either the Corporations Act or the FEG Act.

The Tribunal applied a multifactorial approach to ascertain the nature of the relationship between Mr O'Dwyer and the company, drawing on established High Court authorities such as *Stevens v Brodribb Sawmilling Co Pty Ltd* and *Hollis v Vabu Pty Ltd*. This approach considers a range of factors, including the terms of any contract, remuneration methods, tax deductions, the degree of control exercised by the putative employer, the ability to delegate work, the right to work for others, and whether the individual presented themselves to the public as part of the organisation. The Tribunal found that Mr O'Dwyer was not an excluded employee.

Consequently, the Tribunal set aside the reviewable decision and remitted the matter to the Department for further processing, with a finding that the applicant is not an 'excluded employee' within subsection 556(2) of the Corporations Act 2001 (Cth).