Porciello and Secretary, Department of Employment
[2017] AATA 819
•5 June 2017
Porciello and Secretary, Department of Employment [2017] AATA 819 (5 June 2017)
Division:GENERAL DIVISION
File Number: 2016/3841
Re:Stefan Porciello
APPLICANT
AndSecretary, Department of Employment
RESPONDENT
DECISION
Tribunal:Member K Millar
Date:5 June 2017
Place:Adelaide
The decision under review is affirmed.
...........[Sgd]........................................
Member K Millar
Catchwords
EMPLOYMENT - Fair Entitlement Guarantee - claim for advance under Fair Entitlements Guarantee Act – requirements for an effective claim – claim not an effective claim - decision under review affirmed.
Legislation
Fair Entitlements Guarantee Act 2012
Cases
Brown v Secretary, Department of Employment [2017] AATA 96
Browne v Secretary Department of Employment [2015] AATA 978
Paraponiaris v Secretary, Department of Employment [2015] AATA 895
REASONS FOR DECISION
Member K Millar
5 June 2017
BACKGROUND
Mr Porciello was employed as a crane driver for Q Structures Pty Ltd until his employment ceased in July 2013. A liquidator was appointed to Q Structures Pty Ltd on 24 September 2013 and as a result, Mr Porciello could make a claim under the Fair Entitlements Guarantee Act 2012 (the Act) for unpaid entitlements.
The Act provides for the Commonwealth to pay an advance of unpaid employee entitlements to former employees of an insolvent or bankrupt employer where the end of the employment was connected with the insolvency or bankruptcy and the employee cannot get payment of the entitlements from other sources. The Commonwealth can then recover the advances through the winding up or bankruptcy of the employer and through other payments former employees receive for their entitlements.
Mr Porciello claims that when his employment ended he was owed over $3,500 in wages, allowance and annual leave.
To be eligible for an advance under the Act, the person must make an effective claim. This includes that the claim was lodged within 12 months of the person’s employment ending, or an insolvency event occurring, whichever is the later. To be an effective claim, the claim must be on the correct form and be accompanied by any documents required by the Secretary.
The Secretary refused Mr Porciello’s claim as a delegate found that the claim had been lodged more than 12 months after the insolvency event, a decision which was affirmed on internal review.
CONSIDERATION
To be eligible for an advance, a person must lodge an effective claim.[1]
[1] ss.10(h) of the Act
Section 14 sets out the requirements for an effective claim. This includes that the claim is on a form approved by the Secretary, is accompanied by any documents required by the Secretary, and that the claim is made before a specified time.[2]
[2] Paragraphs 14(1)(a) and (b) and ss 14(2) of the Act
The Act does not permit the Secretary or the Tribunal discretion to extend the time in which to lodge the claim.[3] The Act also requires that the documents required by the Secretary must accompany the claim. The claim form provided by Mr Porciello specifies that a certified copy of an Australian passport, or an Australian Birth Certificate, or a Certificate of Australian Citizenship must accompany the application.[4]
[3] Brown v Secretary, Department of Employment [2017] AATA 96; Browne v Secretary Department of Employment [2015] AATA 978; Paraponiaris v Secretary, Department of Employment [2015] AATA 895
[4] Exhibit T9, page 95
As it applies to Mr Porciello, the specified time in which he had to lodge his claim is 12 months after an insolvency event occurred in relation to Q Structures. A liquidator was appointed to Q Structures on 24 September 2014. This is an insolvency event under s 5 of the Act, and the 12 month period in which he is required to lodge a claim ended on 25 September 2014.
Mr Porciello said that after he and other workers were told to leave the site they went to the union offices. As he cannot read and write in English, a person from the union filled in the claim forms for him and addressed an envelope for him. Some of the workers lodged their claims on-line from the union office but he took his claim form with him and posted it at the Tranmere post office. He did not send any other documents, such as his passport, with the claim form.
Mr Porciello said he contacted the Fair Entitlement Guarantee Branch (FEG) five or six months after he lodged his claim and was asked to quote the Australian Business Number for Q Structures. He said he was told it was too early for him to ring about his claim, and that it would take another two to three months. He rang three months later and was told there was no record of his claim. He was upset and hung up, but then rang back and was told it was past the 12 month claim period and was given the phone number for legal aid. He was told to send a copy of his passport and identification signed by a Justice of the Peace.
Mr Porciello lodged a claim with FEG on 16 March 2016, but dated it 20 July 2013, and said this was because he was providing a copy of the claim form he originally lodged. This was not the case, as the claim form he lodged on 16 March 2016 states at question F3.2.1 that “after 12 months I called them and was told the paperwork was lost”.[5] As the claim form provides a description of events 12 months after he says he lodged the claim, it cannot be a copy of a form that had been lodged. At the hearing he provided another version of his claim form, which also contains a description of events that occurred after the purported date of his claim in 2013.
[5] Exhibit T9, 104
Mr Porciello did not include a copy of his passport with his original claim. There is a certified copy of his passport contained in the documents provided by the Secretary,[6] however this was certified on 11 April 2016, and could not have been provided to the Department before 25 September 2014, the end of the period in which he could lodge an effective claim.
[6] Exhibit T13,124
As it applies to Mr Porciello, the specified time is 12 months after an insolvency event occurred in relation to Q Structures. This requires him to have lodged a claim form together with a certified copy of his passport, or an Australian Birth certificate or Certificate of Australian Citizenship before 25 September 2014.
While there is doubt about whether Mr Porciello lodged a claim form in the required time, it is not necessary to decide whether he did, as he did not provide a certified copy of his passport until 2016. As this is necessary to lodge an effective claim, he has not lodged an effective claim within the required 12 month period.
As a result, his application cannot be successful, and the decision under review is affirmed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Member K Millar ............[Sgd].......................................
Administrative Assistant
Dated 5 June 2017
Date(s) of hearing 28 April 2017 Applicant In person Advocate for the Respondent Mr L Holcombe Solicitors for the Respondent HWL Ebsworth Lawyers, Canberra
2
3
0