Fair Work Act – High income threshold – case summaries

[2009] FWA 779 Vic Lee C v CLS P/L (R argued that FWA had no jurisdiction as worker’s {W} annual earnings exceeded the high income threshold of $108,300 by $833 – s332, which defines earnings, considered – $26,100 of W’s remuneration was in the form of a living away from home allowance {LAFHA} – Acton SDP concluded that the LAFHA “was in the nature of compensation to [W] for the additional accommodation expenses he reasonably incurred because he was required to live in Australia away from his usual place of residence in the United Kingdom in order to perform the duties of his employment with CLS … [and that] more than $833 in LAFHA was not earnings within the meaning of s332 … or for the purposes of s382(b)(iii) … Nor was it other benefits worked out in accordance with the regulations, as described in s382(b)(iii) … In considering the scope of ‘earnings’ within the meaning of s332 … or for the purposes of s382(b)(iii) … it is relevant that s332(2)(b) … provides that reimbursements do not constitute such earnings” @18-20.

[2010] FWA 1952 NSW Chang v Ntscorp Ltd (A held to have exceeded the high income threshold as FWA satisfied that “the provision of a motor vehicle for private use, and the payment of a home internet subscription were benefits enjoyed by the [A] in return for her work”@25 – approach to calculating the motor vehicle component of her income and the approach to non-monetary benefits in general considered and Fewings applied)

[2010] FWA 2907 WA Atkinson v Midway Community Care Inc (applicant exceeded high income threshold when benefits of salary sacrifice were added to his salary)

[2010] FWA 3462 Tas Roberts v High Professional Productions P/L … (value of HR diploma course and lap top not included in A’s income as they provided little by way of personal benefit to A – the amount of business use of company vehicle by A could only be estimated, as no records kept – see para. 75 for correct methodology for estimation – portion of motor vehicle use and mobile phone use accepted as remuneration – A under threshold)

[2010] FWA 5772 NSW Read v Universal Store P/L (“the [A] used his own vehicle and mobile telephone for the business benefit of the [R], and the [A] bore those expenses personally – save as to claiming them as work-related deductions in his income tax return” @ 26 – FWA accepted R’s submission that “there is no merit or basis under the Act or Regulations for the Applicant’s contention that his annual rate of earnings should be reduced by the value of the deductions he claims in his personal tax return for work related expenses. … [T]he [A’s] 2008/2009 tax return is irrelevant, in circumstances where it was common ground the applicant’s wages were $115,605” @24)

[2010] FWA 9112 Vic Tuohy v Polyfoam (Australia) P/L (the A found to be under the threshold after considering motor vehicle, toll, and mobile phone benefits)

[2011] FWA 5960 NSW Trezise v Universal Music Australia (A’s annual rate of earnings was above high income threshold, but A argued that the fact of him being on unpaid parental leave for five months should operate to have him being assessed as below the threshold – Regulation 3.05 discussed – A’s argument rejected as parliament used the word ‘earnings’ not ‘payments’.

[2012] FWA 1546 Qld Coventry v Southern Gulf Catchments (the A was a CEO – application “jurisdictionally incompetent … No award or agreement (or AWA) applied at the relevant time, and the Applicant’s earnings were above the then applicable high income threshold [housing allowance and benefit of private use of motor vehicle factored in]. Further, because the 2007 AWA (like the 2009 Agreement) incorporated a term that provided for an outer limit that reached its nominated end date, the Applicant was not dismissed at the initiative of the employer … (in respect of either agreement)” @81-82)

[2012] FWA 2424 Vic Slavin v Horizon Holdings (it is the private benefit from the use of a car or a mobile phone that is to be factored in as remuneration – the basis for determining the value of private use of a motor vehicle and mobile phone considered from paragraph 43-63 – “it does not make sense to suggest that earnings should be determined with respect to actual earnings in the financial year in which the termination took place. To not annualise the wages or other benefits of the Applicant would provide an unfair advantage to employees dismissed early in the financial year and disadvantage those dismissed in June of any year” @14 – A also received for his 10 years service a “payment [that] was clearly a bonus as it had a value that could not be determined in advance of receiving it” @70 – such not taken into account – s332(2)(a) considered – A’s annual rate of earnings less than high income threshold)

[2012] FWA 3208 NSW Zappia v Universal Music Australia (A’s contract stipulated that he would be provided a car to use while performing his duties, that he may use the car for all reasonable private purposes and that he would be provided with parking facilities – the vehicle was primarily used for private purposesestimated value of vehicle to be included in A’s earningstoll fees also included – see commentary below – Appeal dismissed [2012] FWAFB 6108)

[2012] FWA 3614 Vic McIIwraith v Toowong Mitsubishi (Fewings method of calculation applied in case where A had a fuel allowance, and fully maintained company vehicles – A found to have 100% personal use of the vehicles)

[2013] FWC 702 Vic McDonnell v Qube Ports & Bulk (“no evidence of the contractual basis of the supply of the vehicle to Mr McDonnell. The evidence otherwise clearly supports a finding of fact that the vehicle was supplied to Mr McDonnell as a ‘tool of trade’. … Rofin [applied]. Mr McDonnell’s entitlement to private use is incidental. That private benefit does not form part of Mr McDonnell’s earnings for the purpose of s.382(b)(iii) of the Act” @ 36 – see commentary below which refers to Rofin)

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