Secretary, Attorney-General's Department v O'Dwyer [2022] FCA 1183

Federal Court of Australia

Secretary, Attorney-General's Department v O'Dwyer [2022] FCA 1183 Appeal from: O'Dwyer and Secretary, Attorney-General's Department [2021] AATA 2346

File number(s): NSD 828 of 2021

Judgment of: GOODMAN J

Date of judgment: 7 October 2022

Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal on a question of law – whether the Tribunal erred in law in its approach to determining whether there was an employment relationship – appeal allowed INDUSTRIAL LAW – where the availability of an advance payment under the Fair Entitlements Guarantee Act 2012 (Cth) turned on whether the respondent's brother was an employee of the insolvent company – where the Tribunal determined that there was an oral contract but did not determine whether that contract gave rise to an employment relationship by reference to the rights and obligations created by that contract – appeal allowed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 44 Corporations Act 2001 (Cth), ss 9, 513C, 556 Fair Entitlements Guarantee Act 2012 (Cth), ss 3, 10, 11, 12, 13, 38

Cases cited: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89 Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 O'Dwyer and Secretary, Attorney-General's Department [2021] AATA 2346 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 96 ALJR 144