Pace and Secretary, Department of Employment
[2016] AATA 474
•5 July 2016
Pace and Secretary, Department of Employment [2016] AATA 474 (5 July 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5044
Re
Adam Pace
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Senior Member A Poljak
Date 5 July 2016 Place Sydney The Tribunal affirms the decision under review.
............................[sgd]............................................
Senior Member A Poljak
CATCHWORDS
EMPLOYMENT – Fair Entitlements Guarantee – claim for advance under Fair Entitlements Guarantee Act 2012 – whether applicant supplied documents in support of his claim within relevant time period – no discretion to extend time period – decision affirmed
LEGISLATION
Fair Entitlements Guarantee Act 2012 (Cth) ss 5, 10, 14
CASES
Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895
Re William Browne and Secretary, Department of Employment [2015] AATA 978
REASONS FOR DECISION
Senior Member A Poljak
5 July 2016
INTRODUCTION
Mr Pace seeks review of the decision by a delegate of the respondent (“the Secretary”) that he is not eligible for an advance under the Fair Entitlements Guarantee Act 2012 (Cth) (“the Act”); as affirmed upon internal review (pursuant to s 39(1) of the Act).
FACTS AND PROCEDURAL HISTORY
Mr Pace was employed by Sargent Security (Aus) Pty Ltd (“the Employer”) as a National Operations Manager.
On 20 June 2014, Mr Pace’s employment with the Employer ended as the Employer went into liquidation. A liquidator was appointed to the Employer on 3 July 2015.
On 22 May 2015, the Department of Employment (“the Department’) received a claim from Mr Pace for an advance under the Act, however it was not accompanied by a document required by the Secretary, being certified documentary evidence that Mr Pace was an Australian citizen or the holder of a permanent or special category visa under the Migration Act 1958 (Cth) at the time that his employment ended (“the claim”).
On 25 May 2015, the Department wrote to Mr Pace seeking provision of the required documents in support of his claim. The evidence was not received by the Secretary until an application for internal review of the decision was lodged on 14 July 2015.
Subsection 14(1) of the Act provides that to be effective for the purposes of the Act, a claim for an advance must be made in a form approved by the Secretary, be accompanied by any documents required by the Secretary and be made in accordance with subsection (2). Under subsection 14(2), a claim for an advance must be made before the end of 12 months after the person's employment with the employer ends, or an “insolvency event” happens to the employer; whichever is later.
For the purposes of section 5 of the Act, an “insolvency event” occurred in relation to Mr Pace’s Employer on 3 June 2014, when a liquidator was appointed. This is the “later date” for the purposes of subsection 14(1) of the Act. Accordingly, in order to lodge an effective claim under the Act, Mr Pace was required to lodge a claim that complied with the requirements pursuant to s14 of the Act by 3 July 2015.
On 11 July 2015, a delegate of the Secretary made a decision in accordance with subsection 15(1) of the Act that Mr Pace was not eligible for an advance in respect of his employment with the Employer (“the decision”).
The basis on which the delegate made his decision was that Mr Pace did not make an effective claim because it was not accompanied by documents required by the Secretary, namely certified evidence of his Australian citizenship (section 14(1)(b)). The evidence shows that the Secretary did not receive certified copies of Mr Pace’s birth certificate and passport within the required time period.
On 14 July 2015, Mr Pace sough a review of the decision and provided copies of his Australian passport, certified on 14 July 2015. Mr Pace claimed in his application for internal review, that he had sent the required certified documents to the Secretary via post on 27 May 2015.
On 31 August 2015, a delegate of the Secretary affirmed the original decision because the respondent’s records do not indicate any receipt of the documents prior to the lapse of the relevant 12 month period (“decision under review”).
The Secretary contended before this Tribunal that the Act contains strict requirements for the making of an effective claim for advance and that Mr Pace did not make an effective claim within the statutory timeframe. There is no discretion to waive or amend these eligibility requirements.
ISSUES
The key issues before the Tribunal are whether the Secretary received the required documents within the 12 month time period prescribed by section 14 of the Act and if not, whether the Tribunal has discretion to extend the time for receipt of such documents.
LEGISLATIVE FRAMEWORK
A person is eligible for an advance if the Secretary is satisfied of all of the criteria provided for in subsection 10(1) of the Act. Relevantly, subsection 10(1)(h) provides that the Secretary must be satisfied that:
(h) an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person.
The requirements for making an “effective claim” are set out in section 14 of the Act, which provides as follows:
14 Making an effective claim
(1) To be effective for the purposes of this Act, a claim that a person is eligible for an advance for the person’s employment by an employer must:
(a) be in a form approved by the Secretary; and
(b) be accompanied by any documents required by the Secretary; and
(c) be made in accordance with subsection (2), and with subsection (3) if it applies.
(2) The claim must be made before the end of 12 months after the later of the following events:
(a) an insolvency event happens to the employer;
(b) the person’s employment by the employer ends.
(3) However, if the employer is or was a bankrupt, the claim must be or have been made before the discharge of the employer’s bankruptcy. ... (my emphasis)
The term “insolvency event”, which is used in subsection 14(2)(a) above, is defined in sub-section 5(a) of the Act, which provides that an “insolvency event” occurs to an employer of a person “when a liquidator of the employer is appointed (provisionally or otherwise) under the Corporations Act 2001”.
In relation to the 12 month time limit for making a claim, the Act does not give the Secretary any power to extend the period of time for making a claim, whether in exceptional circumstances or otherwise. In accordance with section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.
The Tribunal is guided by the decision of the Tribunal in Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895 which states at [52] to [57]:
[52] It is necessary to ascertain “the ordinary and grammatical sense of the statutory words” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 31 per French CJ; emphasis added). Section 14 is to be read as a whole. The use of tenses in s 14(1) is quite deliberate – the expressions “be in a form approved” and “be accompanied by any documents required” are to be read in the context of the expression “be made” in para (c) of s 14(1) and the temporal requirement in s 14(2) (emphasis added). To be an effective claim, a claim must be made within the prescribed time, in the prescribed form and must be accompanied by the prescribed documents…
[53]… The use of the word “must” in the prefatory words of s 14(1) and the conjunctive requirements of both s 14 and s 10 mean that the Secretary is merely obliged to consider whether each of the enumerated matters governing eligibility are satisfied. The terms of s 14 and also s 10 serve to meet the express objects of the Act...
[54] I cannot discern any source of a power or discretion, whether express or implied, and whether in the terms of s 14, other provisions of the Act or some other legislation, by which the Secretary might depart from those requirements in the case of a particular claimant.
[55] Furthermore, I can see no express or implied power or discretion by which the time limit for the making of a claim prescribed by s 14(2) might be extended and thus give rise to a real issue as to whether an “effective claim” might be said to have been made for the purposes of s 14 in some other way (whether by Mr Paraponiaris’ subsequent correspondence or otherwise), leaving aside the question of whether the application could be said to have a real prospect of success in that regard in any event.
[56] Moreover, the Tribunal’s powers of review under s 43(1) of the AAT Act do not afford any discrete source of power or discretion by which Mr Paraponiaris might somehow be relieved from the consequences of his claim’s failure to satisfy the terms of s 14(1)(b). (my emphasis)
[57]…the legislative intention evinced by the strict terms of s 14 is directed towards the attainment of a balance between the objects expressed in s 3 of the Act, which are countervailing to the extent that the first favours former employees while the second is directed to allowing the Commonwealth to recover public funds paid out to such employees.
DOCUMENTS REQUIRED
On 22 May 2015, the Secretary received a Fair Entitlements Guarantee (“FEG”) online claim form lodged by Mr Pace.
Question “B5” of the online claim form reads:
“Were you an Australian citizen at the time your employment ended?”
In answer to that question, Mr Pace responded: “Yes”.
The Secretary informed the Tribunal that the online claim form includes an automated “system response” to a positive answer, as follows: “It is mandatory that you provide certified documentary evidence to support your claim.” The “help text” which appears provides details of what documents are considered acceptable evidence to prove citizenship.
Additionally, at the end of the online claim form there is an “Attachment Reminder” advising that it is mandatory for relevant supporting documentation to be attached. Acceptable evidence is once again outlined in detail.
In order to lodge an effective claim, Mr Pace was required to provide a certified copy of one of the following documents:
(a)an Australian passport current at the end of his employment; or
(b)a birth certificate; or,
(c)a certificate of Australian citizenship issued prior to the end of his employment.
It is Mr Pace’s contention that he sent a certified copy of his Australian passport to the Secretary via post on 27 May 2015. In support, Mr Pace relies on a statement, made by him, in the form of a letter to the Tribunal dated 24 September 2015. In this statement he claims that he sent the original document to FEG at the following address:
Fair Entitlements Guarantee Branch, Department of Employment,
GPO Box 9880 Canberra ACT 2601
Mr Pace claims that the document had the tracking number 60006942203099 (“the Tracking Number”).
Mr Pace also contends that he had no reason to suspect that the document had not arrived at the intended address and only found out that the document had not been received by the Secretary when he was notified that his claim was rejected on 11 July 2015. It is Mr Pace’s evidence that had he known that the document had not been received, he could have resent the document via post, fax or email within the expiration of the 12 month time period.
The Secretary contends that the Mr Pace did not send the required documentation to the FEG Branch on 27 May 2015 and even if the Tribunal accepts that it was sent, the documentation was never received by the Secretary within the 12 month time period.
The Secretary relies upon the statement of Britt Collins dated 26 February 2016, the statement of David Moufarrege dated 24 February 2016 and an email from Andrew Pamphilon of Australia Post to Tal Aviram dated 24 February 2016.
Britt Collins is employed by the Department in the position of Team Leader of the FEG Contact Centre. The contact centre is responsible for, inter alia, receiving and distributing mail items relating to FEG. Her statement provides a detailed outline of the general procedures of the contact centre. Ms Collins confirms that the FEG contact centre, and the FEG area generally, does not have any unprocessed physical mail items, and generally processes all mail items on the day they are received.
David Moufarrege has oversight of the Department’s mailroom (“the Mailroom”). His statement describes the operations of the Mailroom and confirms that there is no record of an Australian post item with the Tracking Number being received.
The email from Andrew Pamphilon of Australia Post to Tal Aviram, dated 24 February 2016, provides details on the Tracking Number. Searches undertaken by Australia Post show that the mail item with the Tracking Number was delivered to a facility in Clayton South on 22 April 2014, some 12 months prior to Mr Pace lodging his online claim form. When questioned about this issue, Mr Pace could not offer an explanation but maintained that it was the correct Tracking Number.
Based on the evidence before me, I am not satisfied that Mr Pace sent the required documentation to FEG on 27 May 2015. It follows that the Department did not receive certified copies of the required documentation within the required time period, ending 3 July 2015.
DECISION
Section 14 of the Act makes it clear that a claim will not be effective unless it is accompanied by all required documents and is made within the statutory timeframe.
I agree with what the Tribunal said in Re William Browne and Secretary, Department of Employment [2015] AATA 978 at [44]:
In the circumstances, the Secretary, or the Tribunal standing in the Secretary’s shoes, is simply not empowered to accept a claim for an advance after the expiry of the statutory timeframe, regardless of whether a claimant is able to supply the required documentation after that date. While this might seem inherently unfair, this is what the statute mandates. There is no flexibility in this regard.
On the evidence, Mr Pace did not make an effective claim within the required time and did not provide the required certified documentation to support his claim.
The Act does not permit the Secretary or the Tribunal any discretion to extend the time period for making an effective claim. Under the Act, a person will only be eligible for an advance if the Secretary is satisfied that an effective claim has been made, and on time.
CONCLUSION
For the reasons given above, I am satisfied that Mr Pace did not make an effective claim for a FEG advance as required by subsection 10(1)(h) and section 14 of the Act.
Accordingly, Mr Pace is not eligible for a FEG advance pursuant to subsection 10(h) of the Act.
The decision of the respondent’s delegate made on 31 August 2015 is affirmed.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Ms A Poljak, Senior Member ............................[sgd]............................................
Associate
Dated 5 July 2016
Date(s) of hearing 21 June 2016 Applicant In person Solicitors for the Respondent Clayton Utz
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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Standing
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Appeal
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