Roberts and Secretary, Department of Jobs and Small Business

This matter concerned an application by Mr. Roberts for an advance under the Fair Entitlements Guarantee Act 2012 (FEG Act) following the insolvency of his employer, Ignite. The Secretary of the Department of Jobs and Small Business had initially determined that Mr. Roberts was not eligible for an advance because he was considered an independent contractor, not an employee. Mr. Roberts sought a review of this decision, contending that he was, in fact, an employee of Ignite.

The primary legal issues before the Tribunal were whether Mr. Roberts was an employee of Ignite for the purposes of the FEG Act, and whether he had taken reasonable steps prior to the insolvency event to be paid his employment entitlement debts. The FEG Act defines an employee by reference to the common law definition and does not include contractors. Eligibility for an advance requires, among other things, that the person's employment has ceased due to the employer's insolvency, that they are owed employment entitlement debts, and that they took reasonable steps to be paid those debts before the insolvency event.

The Tribunal considered various indicia to determine the nature of the relationship between Mr. Roberts and Ignite, including the terms of their agreements, the mode of remuneration, the deduction of income tax, the establishment of a business, the degree of control exercised by Ignite, and the entitlement to delegate work. While the agreements stated Mr. Roberts was an independent contractor and he provided tax invoices, the Tribunal found that his remuneration was a fixed weekly or fortnightly rate, not for a completed job or at an hourly rate, which suggested an employee relationship. Furthermore, Ignite exercised significant control over Mr. Roberts' work, including specifying his duties, requiring him to report to management, and dictating his working hours and location, which also pointed towards an employment relationship.

Ultimately, the Tribunal found that Mr. Roberts was an employee of Ignite. Consequently, the previous decisions denying him an advance under the FEG Act were set aside, and the matter was remitted for further consideration of his eligibility for an advance.