O'Dwyer and Secretary, Department of Employment

The applicant, O'Dwyer, sought an advance under the Fair Entitlements Guarantee (FEG) scheme following the liquidation of his employer. The Secretary of the Department of Employment (the respondent) determined that O'Dwyer was not entitled to a FEG advance because he was an "excluded employee" within the meaning of the relevant legislation. This decision was under review by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether O'Dwyer was an excluded employee. This turned on whether his employer, a company, was the "true employer" of O'Dwyer, and whether O'Dwyer was a relative of an employee or director of that company. The Tribunal was required to determine the nature of the employment relationship and apply the principles established in *Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd* to ascertain the true employer.

Deputy President Rayment OAM KC applied the principles from *Personnel Contracting*, which emphasises that the true employer is determined by the totality of the relationship between the parties, looking beyond the label given to the arrangement. The Tribunal found that the company was indeed the true employer of O'Dwyer. However, the Tribunal also found that O'Dwyer was not a relative of any employee or director of the company. Consequently, O'Dwyer did not fall within the definition of an excluded employee. The decision under review was set aside, and the matter was remitted to the respondent for reconsideration of O'Dwyer's entitlement to a FEG advance.