Watson and Secretary, Department of Jobs and Small Business

This matter concerned an application by Mr Watson for an advance under the Fair Entitlements Guarantee Act 2012 (Cth) following the administration of his employer company. A delegate of the Secretary of the Department of Jobs and Small Business had refused the application, a decision Mr Watson sought to have reviewed by the Tribunal. The core of the dispute revolved around whether Mr Watson was an "excluded employee" for the purposes of the Fair Entitlements Guarantee Act, which would render him ineligible for an advance.

The legal issue before the Tribunal was whether Mr Watson was a director of the employer company at any time during the 12 months prior to 11 February 2016, the date receivers and managers were appointed to the company. Under the Fair Entitlements Guarantee Act, an employee is excluded if they were a director of the company during this period, as defined by section 556 of the Corporations Act 2001. Mr Watson contended that he was not validly appointed as a director, had not held himself out as one for a significant period, and had resigned prior to the relevant date.

The Tribunal considered documentary evidence, including Australian Securities and Investments Commission (ASIC) records which listed Mr Watson as a director from 19 March 2013 until 13 November 2015. Minutes of directors' meetings also recorded his attendance. However, Mr Watson provided a statutory declaration stating he had only verbally agreed to be a director of a non-trading entity and became aware of his director status according to ASIC only after receiving a Director Penalty Notice in June 2015. He claimed he had no control over finances, was not privy to operational information, and had not attended board meetings. Crucially, Mr Watson provided evidence that he resigned as a director on 13 November 2015, which was within the 12-month period preceding the appointment of receivers and managers.

The Tribunal concluded that Mr Watson did resign as a director on 13 November 2015, which was within the relevant 12-month period. Consequently, the decision under review, which refused Mr Watson's application for an advance under the Fair Entitlements Guarantee Act 2012 (Cth) on the basis that he was an excluded employee, was affirmed.