Roberts and Secretary, Attorney-General's Department

The Administrative Appeals Tribunal considered the application of Mr Roberts for an advance under the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act) following the liquidation of his employer. The dispute centred on whether certain entitlements, specifically unpaid commissions, overtime, annual leave loading, and redundancy payments, were covered by the FEG Act. The Secretary of the Attorney-General's Department was the respondent.

The primary legal issue before the Tribunal was to determine the applicable "governing instrument" for the purposes of the FEG Act and, consequently, whether the unpaid commissions constituted a "wage entitlement" that could be advanced. This required an interpretation of Mr Roberts' employment contract and any relevant industrial instruments to ascertain the nature of the commissions and when they became payable.

The Tribunal reasoned that the commissions were not earned or payable during the period Mr Roberts was considered to be in "employment" for the purposes of the FEG Act, as they were contingent on future events and not yet accrued. Applying principles of contract interpretation, the Tribunal found that the employment contract did not create an entitlement to the commissions during the relevant period. Therefore, the unpaid commissions were not a wage entitlement under the FEG Act.

The Tribunal affirmed the decision under review, finding that Mr Roberts was not entitled to an advance for unpaid commissions under the FEG Act.