Fair Work Act 2009_

s 394 - Application for unfair dismissal remedy

Termination of employment - application for relief from unfair dismissal - Property/Facilities Manager - whether applicant covered by a modern award - high income threshold - private usage of Company provided motor vehicle, mobile phone and iPad - applicant not covered by a modern award - applicant's annual earnings exceed high income threshold - application dismissed.

[1] This decision will determine a jurisdictional objection, lodged by Trade Coast Investments Pty Ltd (the 'objector', the 'Company' or the 'respondent') to an application for an unfair dismissal remedy, filed by Mr Paul Dart (the 'applicant'), pursuant to s 394 of the Fair Work Act 2009 (the 'Act').

[2] The applicant had been employed as a Property/Facilities Manager since 26 January 2011, until he was dismissed by the respondent on 30 September 2014. While the reasons for the applicant's dismissal are not particularly relevant for the purposes of this decision, shortly stated, the applicant was dismissed for misconduct involving allegations of lateness and being less than honest with his employer as to his work time, his location and the performance of his duties.

[3] The gravamen of the respondent's objection is that the applicant's annual rate of earnings was higher than the high income threshold ($133,000 at the relevant time) and was therefore not a person protected from unfair dismissal (s 382). These earnings were said by the respondent to comprise of the following:

[4] At this juncture, it is necessary to dispose of a number of other preliminary matters as required by s 396 of the Act. That section requires the Commission to decide:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

[5] The applicant's unfair dismissal application was made within the 21 day statutory time period, as defined in s 394(2) of the Act. While the objector had initially claimed that it was a small business employer and had followed the Small Business Fair Dismissal Code (the 'Code'), that matter was not argued in the present proceeding. This was not a case of genuine redundancy (s 396(d)) so that section is not relevant.

[6] It follows that the extant matter for determination by the Commission, is whether the applicant was a person protected from unfair dismissal. This requires reversion to s 382, which is as follows:

'382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.'

[7] There was no issue that the applicant had completed the minimum employment period (even if the objector was a small business) (s 382(a)). The applicant argued that he was covered by the terms and conditions of the Miscellaneous Award 2010 [MA000104] (the 'Award') and even if he was not so covered, his annual rate of earnings was below the high income threshold (s 382(b)). Relevantly, the definition of earnings is found at s 332 of the Act as follows:

(b) amounts applied or dealt with in any way on the employee's behalf or as the employee directs; and

(c) the agreed money value of non-monetary benefits; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee's earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee's benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;

(c) the employer is required to contribute to the fund for the employee's benefit under a law of the Commonwealth, a State or a Territory.

[8] The jurisdictional objection was heard over two days on 31 March (in Brisbane) and 10 April 2015 (by videolink between Brisbane and Sydney). Permission was granted, pursuant to s 596 of the Act, for the applicant to be represented by Ms K Dorney, Solicitor and Ms D Whitehouse of Counsel, instructed by PHV Lawyers to represent the objector.

[9] The following persons provided written and oral evidence in the proceeding:

• Ms Harriette Lall, Personal Assistant/Administrator for the respondent;

• Ms Andrea O'Connor, Financial Controller for the respondent; and

[10] It was Mr Smith's evidence that when he interviewed the applicant for the position of Property/Facilities Manager, he had informed him that he would have the full use of a company car, for both personal and work purposes. The applicant told him that if he had full private use of a company car, he could sell his current 2005 Ford Territory, which he later did for $12,000 or $16,000 (the evidence is unclear as to this figure). Mr Smith said that the applicant was pleased to get that money.

[11] Mr Smith was well aware that the applicant was using the car for personal purposes, including on holidays and weekends. He would often discuss where he had been and what he had done with the company car (a 2009 3.6 Holden Commodore Station Wagon). As the car was registered in his name, Mr Smith received several speeding fines for the vehicle. The Company would pay the fines and Mr Smith personally took responsibility for the applicant's demerit points to avoid the applicant losing his licence. As a result, Mr Smith ended up on a good behaviour licence.

[12] Mr Smith was also aware that the applicant would fill up the company car with petrol on Thursday or Friday and refill it on Monday. The phone records also showed that the applicant had travelled to many and varied places where his work did not require him to go.

[13] Mr Smith said the applicant told him he would use the company car to go to the coast with his two dogs. In mid-July 2014, Mr Smith gave the applicant a replacement car, a 2010 Holden Commodore sedan. At the time, the applicant asked to transfer a commercial vehicle registration sticker to the sedan so he could use it to park in commercial zones in the CBD at the weekend, where he liked to go to meet with friends. Mr Smith said that the applicant told him his wife did not like the sedan, because the dogs had to sit on the seat. He also told him that his wife had bought a BMW station wagon, having sold a VW Jetta in September 2014. Mr Smith observed that while the applicant was required to keep a logbook identifying his personal and business use, he had not done so.

[14] In calculating, the estimated value of the benefit of the private use of the vehicle, Mr Smith had referred to a publication provided by the Royal Automobile Club of Queensland (RACQ) that dealt with costs of owning and operating a vehicle on the basis of driving a distance of 15,000km per year. This disclosed the following comparisons:

• Holden VF Commodore Evoke 3.0L V6, 6 Speed Sedan = $12,453.24; and

• Holden VF Commodore Evoke (LPG) 3.6L V6, 6 Speed, 4 door sedan = $12,572.87.

Mr Smith said that, in his experience, around $11,000 is regarded as the minimum cost of supplying a decent car to an employee. A station wagon is generally more expensive than an equivalent sedan. Mr Smith believed the benefit to the applicant was in the range of the above figures.

[15] Mr Smith stated that the applicant had also received an iPhone and iPad at the commencement of his employment which were for personal use 'within reason'. As Mr Smith received the phone bills, he was fully aware that the applicant was using the phone for personal purposes. When the phone and iPad were returned on termination, the iPad had 553 photos and eight videos, none of which were connected with work.

[16] Mr Smith said that in 2013, the applicant had prepared his own 'Duty Statement' which set out his perception of what his duties were. This document is annexed to this decision and marked as 'Annexure A'. Mr Smith deposed that the applicant was able to authorise expenditure on the rental properties managed by the respondent, up to an amount of $5,000. The outgoings budget involved repair and maintenance, painting, window cleaning, cleaning the car park, cleaning bins and toilets, maintenance of landscaping, pest control, fire protection, floor coverings, plumbing and security.

[17] With respect to capital works, the applicant would obtain quotes and submit them for approval (over $5,000). The applicant was required to coordinate subcontractors and supervise their work. Part of his job was to supervise Mr Ron Russell, who subcontracted to the respondent.

[18] In cross examination, Mr Smith said that prior to the applicant's employment, he and his business partner had had lengthy discussions, over several weeks, with the applicant as to his future employment arrangements. Mr Smith was asked a number of questions concerning his employment/contractor arrangement with Mr Ron Russell. Mr Smith could not recall exactly what was said about the car being available for private use or the mobile phone being used 'within reason'. He definitely had not said the car could not be used for personal purposes.

[19] Mr Smith was shown a document said to be the applicant's employment contract. He agreed his signature was on the document, but observed it was an electronic signature. He agreed this electronic signature would normally only be used at his direction. Mr Smith said that the document was a letter of intent, which did not record everything that was agreed to orally in conversations with the applicant and it was poorly worded.

[20] Mr Smith was asked about the wording that 'the mobile phone to be used directly for purposes relating to the business of the company'. This definitely did not reflect his recollection of the discussion. Mr Smith said the discussions also resulted in a salary offer of $120,000 p.a. Prior to offering the applicant a role, the duties to be performed by him were performed by himself, his business partner, Mr Colin Loel and Mr Russell. The role offered to the applicant was to manage four properties in Brisbane.

[21] Mr Smith said that the four or five people in the team would use a pool of vehicles. Mr Smith added that payments and salaries were handled by his bookkeeper and accountant.

[22] Mr Smith was closely questioned about his reliance on the RACQ document concerning the private value of the applicant's vehicles in comparison to similar vehicles in the RACQ document based on 15,000km per year. Mr Smith believed that 15,000km would be a conservative estimate of the distance the applicant drove in one year.

[23] Ms Dorney put to Mr Smith that the RACQ report, being based on ABS statistics, actually recorded travel as 14,000km p.a. with averages of 52.7% for personal use, 27.3% travel to and from work and 19.9% for business use. After some discussion with the Bench, Ms Whitehouse clarified how the respondent arrived at its calculations, without logbooks for the entire period. It was made on the basis of estimated private use of 60% over three years at 23,000km p.a.

[24] When shown the ABS document, Mr Smith was asked about certain figures being for motor vehicles in Australia (2012) which travelled an average of 14,000 (in Queensland it was 14,900) and 52.7% was for personal use. Mr Smith could not give any evidence on the methodology used in this document.

[25] In re-examination, Mr Smith was asked about the Duty Statement attached to the applicant's statement (see Annexure A). He believed it was 'roughly correct' as to what it was said the applicant was employed to do. Mr Smith said he had no recollection of any disagreement about this duty statement or any other variation to the applicant's contract of employment.

[26] Ms Lall gave evidence that she had been employed by the respondent and had known the applicant since 2012. She was aware from conversations with him that he used his company car for personal use. She was also aware, from seeing the mobile phone accounts, that the applicant used the mobile phone for personal calls.

[27] Ms Lall had cause to undertake an exercise of examining the applicant's mobile phone bills for the period of 22 August 2014 to 22 August 2014. In doing so, she checked the records of all subcontractors/tradespersons engaged by the respondent and calls to tenants of the respondent's properties. She was able to ascertain that of 659 national direct calls during the relevant period, it appeared that 412 were personal calls (not including personal calls to contractors who were friends of the applicant).

[28] Ms Lall said the cost of the phone was based on a Business Advantage Plan of $130 + $33 (Smartphone repayment option) and two credits of $33.00 for the business plans. She observed that these bonuses would not be available for individuals.

[29] In cross examination, Ms Lall said she had not seen a logbook for the applicant's vehicle, but the Company did have a logbook for its truck. However, she had never assisted or observed other persons filling out a logbook. Ms Lall could not recall any conversation with the applicant in respect to filling in a logbook.

[30] Ms Lall explained that in the exercise she undertook in respect to the phone records, she relied on the Company's spreadsheets, which listed all the contractors, tradespersons and tenants and their phone numbers. It was also Ms Lall's responsibility to print invoices and process purchase orders. Ms Lall agreed it was possible that there were other business calls not recorded in either the spreadsheet or the database.

[31] In re-examination, Ms Lall explained that she received invoices through the generic email which she sent to the applicant for authorisation.

[32] Ms O'Connor has worked for the respondent since 2002/2003 and had known the applicant since he commenced employment with the Company. Ms O'Connor deposed that she was always aware that the applicant had a company car for work and personal use. She was aware of speeding tickets incurred for the vehicle on weekends and the tolls on the airport tollroad, which were nowhere near any work-related journey that the applicant was required to take. The applicant had also told her he would take his dogs in the back of the station wagon. While his wife had her own car, he would go down the coast most weekends at different times to his wife. He would fill the car up with petrol on Friday or Thursday and refill it on the following Monday.

[33] Ms O'Connor said the applicant was given an iPhone 4 (later upgraded to an iPhone 5) on a high usage contract of $130 per month, plus $33 for the business package. She was aware the applicant had the use of the phone for private purposes.

[34] Ms O'Connor referred to Mr Russell's engagement as a contractor. Although he worked a 40 hour week, he was paid weekly payments of $1,760, including superannuation.

[35] In a second affidavit, Ms O'Connor attached the following:

a. A selection of Purchase Orders authorised by the applicant;

b. Documents showing the cost on a monthly basis of the iPad used by the applicant;

c. Page 1 of a maintenance agreement for $10,120 per quarter that the applicant signed 'For the customer' (i.e. the respondent);

d. Emails from the applicant giving directions and allocating work tasks to various employees and contractors of the respondent in the capacity of 'Operations Manager'; and

e. A letter of reference for Mr Russell signed by the applicant as 'Operations Manager for the respondent.

[36] In cross examination, Ms O'Connor said that the accountant had asked for vehicle logbooks. She believed the applicant may have filled in a logbook, but not properly completed it.

[37] Ms O'Connor did not believe there were any specific rules in respect to obtaining quotes. A quote for a roof of $30,250 in the purchase order exhibit would have been double checked by Mr Smith or Mr Colin Loel. Another for line marking and overlay of the parking lot for $14,750 would have been passed by Mr Smith.

[38] In his first statement the applicant said that after five years working for Colliers International, managing a high rise building and some small sites in Brisbane, Mr Smith ahd approached him in November 2010 to ask if he was interested in working for his Company as a Facilities Manager for his properties. Mr Smith told him that it would only take 4-5 hours and he could manage other properties using an ABN. Mr Smith told him that he would be supplied with a car and mobile phone. At no time, was the applicant required to start and finish work at set times or told what days, times and frequency he should attend Mr Smith's properties.

[39] Around 26 January 2011, the applicant signed a letter setting out terms of his employment (the 'Letter of Employment'). It reads as follows:

Manage all works undertaken at all properties owned by the company and associated companies. Specifically this is to include building works, maintenance and repair work, systems failures, tenancy problems and/or issues including make goods; coordination of all tradesmen/consultants required to facilitate the proper and timely completion of such works; supervision of activities of Ron Russell; management of all regular outgoings and any other costs, including contractors engaged to provide regular services for or in respect of the proper operation of all properties preparation and management of budgets for maintenance and building works and outgoings in respect of all buildings; manage all machinery and equipment, including their operation and servicing and maintenance.

We confirm our company's offer to employ you in the above position on the following terms and conditions:

4. Motor vehicle of a make and model to be determined by the company. To be used principally for purposes directly related to the business of the company. Logbook to be utilised.

5. Mobile phone to be used directly for purposes related to business of company.

6. Commencement date: 1 March 2011 or earlier as agreed

7. You may terminate the agreement by the provision of one month's written notice and in the event that such notice is given within the first six months of the term of employment, you shall be entitled to a termination payment equivalent to 8 weeks salary.

The terms and conditions set out above are to be incorporated in an agreement to be drafted by the company's solicitor.

Would you please accept this offer by signing and returning this letter to the company.'

[40] The applicant deposed that Mr Smith had never directed him as to how and when he was to undertake his duties. Each day he would generally work in the office at the Fortitude Valley building between 7:00am and 2:00pm and then drive to the other properties to attend to duties, such as meeting tenants to discuss and investigate issues, identify required maintenance work, arrange for contractors and undertake cleaning inspections.

[41] The applicant claimed that while he would generally return home at around 2:30pm (having worked approximately 4-5 hours), he was effectively on 24 hour call, seven days a week. His mobile number was given to the tenants and security for after hour emergencies. He would received around two such calls per week and attend the properties once or twice a week, outside business hours involving security issues, lock-outs of tenants, storm damage or maintenance work required after hours. The applicant expressly denied that he had ever been advised that he was expected to work 40 hours over five days per week and otherwise be at the office to do paperwork. The applicant also said that his role required him to engage and coordinate tradespersons for maintenance work. One such person was Mr Russell.

[42] The applicant denied that he had authority to appropriate expenditure up to $5,000 and claimed he was never told this. His practice was to seek Mr Smith's and Mr Loel's approval for any expenditure over $1,000. The applicant said he would send spreadsheets estimating and recommending expenditure every four months, but approval was not always given by Mr Smith.

[43] The applicant said that he did not discuss or come to an agreement with Mr Smith (or any other directors) as to the use of the car for private purposes. Sometimes in emergencies, the applicant would use his wife's car. Prior to taking up employment, he had owned his own vehicle, because Colliers would only provide a parking space. In conversations with Mr Smith, Mr Smith advised him that a car would be provided to enable him to travel between properties. He agreed he had sold his own vehicle in the first year of his employment, but was not exactly sure when.

[44] The applicant claimed that the car's use for personal purposes was incidental to his work use. The car was never offered as part of a salary package. It was merely a necessary tool for him to fulfil his role.

[45] In the three years, seven months he was employed by the respondent, he had taken five holidays of one/two weeks' duration, including overseas. He said that on each occasion, he surrendered his the car to the business for use by other staff. On one occasion, his car was given to Mr Smith's cousin for two weeks and he was directed to use a small company-owned truck.

[46] The applicant denied there was ever any agreement that he could use the Company phone for personal calls 'within reason'. While admitting that he did use the phone for personal calls, he did so because the employer had a fixed monthly plan and so long as he did not exceed the monthly cap, personal calls would make no difference to the monthly charges. The phone's principal purpose was for him to communicate with tenants, contractors and security, sometimes on weekends and at any hour of the day.

[47] In a second statement, the applicant recalled that at one point during his employment, Mr Smith had handed him a logbook and asked him to complete it for a period of two months. He believed the logbook was required by the accountant to demonstrate that the vehicle was used for business purposes at least 80% of the time. The applicant recalled later meeting the accountant who told him there needed to be more detail in the daily logbook entries. The applicant also annexed to his statement the full RACQ document earlier referred to. The applicant said that as he no longer had any access to a logbook or records, he did not know the percentage of personal use of the vehicle.

[48] The applicant conceded that he did use the company vehicle to drive the 240km round trip on weekends to Cabarita in New South Wales. However, it was not every weekend. Although he estimated these trips at 15 during the last twelve months, he sometimes used his wife's vehicle.

[49] As to the iPad, the applicant said it was supplied to him about one month after commencing employment. While he used the iPad to take photos for both personal and business use, its primary function was to send and receive work emails.

[50] In further evidence by reference to a payroll slip, the applicant accepted his annual salary was $121,560. The applicant was shown the extract from a logbook he had filled out in 2013, the phone bills and the iPad bills. He did believe these records supported a claim that he drove to Cabarita and back every weekend. He added that as his wife owned a 'much nicer car', they would sometimes drive her car.

[51] The applicant restated that in respect to work purchase orders, he had no authority for any expenditure over $1,000 and would seek the approval of Mr Smith or Mr Loel, who might sometimes refuse or defer approval until the next month. Even in an emergency, he would call either Mr Smith or Mr Loel.

[52] In cross examination, the applicant confirmed that in respect to the mobile phone, he had brought his personal number with him to the business and took the number when he left the business. When the applicant was shown various car service records, he agreed his use of the vehicle between March 2011 and October 2013 ranged from 46,371 to 106,094 kms.

[53] The applicant believed that his personal use of the vehicle was incidental to his role of being on call 24/7. He also accepted that there may have been some small personal use of the iPad.

[54] The applicant said that while he had no fixed hours of employment, he would generally start around 7:00am. He agreed that his duties included:

• maintaining and recording of the assets register;

• assisting with preparation of the yearly budgets;

• making recommendations for capital expenditure;

• liaising with cleaning and maintenance contractors to inspect their work;

• liaising with tenants and inducting new tenants.

[55] The objector's representatives outlined the statutory framework relating to when a person is protected from unfair dismissal and the definition of earnings for the purpose of s 382(b)(ii) as set out in s 332 of the Act. The objector put that the first question to be determined was whether the applicant was a 'managerial employee' for the purposes of cl 4.2 of the Miscellaneous Award 2010 [MA000104]. That clause is expressed as follows:

'4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.'

[56] The objector noted that the applicant's Letter of Employment described the applicant as a 'Property/Facilities Manager'. The description in this document and the 'Duty Statement' (see Annexure A) identified that he was responsible for the management of works undertaken at the applicant's properties, coordination of tradespersons/contractors and supervision of Mr Russell. Item 4 of the Duty Statement set out that he could authorise expenditure. The applicant was responsible for a budget and had authority to pay invoices up to $5,000. Any higher than this and he would obtain quotes and submit them to the directors.

[57] The objector criticised an implied submission of the applicant that Mr Russell could not be supervised by the applicant because Mr Russell was an independent contractor. Failing to supervise contractors would have been a breach of the applicant's terms of employment. In any event, Mr Russell was 'for all intents and purposes', a 'permanent/casual employee', as evidenced by the respondent being required to pay superannuation, the fact that he performed almost all of his work for the respondent and in spite of him submitting invoices to the respondent.

[58] The objector submitted that the primary purpose for which the applicant was employed was managerial; See: Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 ('Carpenter v Corona'). In any event, the terms and conditions of the applicant's contract of employment were different to that of the Award in relation to overtime, penalty rates and leave loading. The applicant was paid far in excess of the salary amounts set out in the Award.

[59] The objector referred to the high income threshold and identified four components relevant to a determination of the applicant's annual rate of earnings, being wages (which the parties agreed were $121,560), the private use of a mobile phone, the private use of a company vehicle and the private use of an iPad. The provision of a car for personal use by the applicant was the subject of an oral agreement between the parties, as demonstrated by Mr Smith's evidence. The conduct of the parties also disclosed an agreement on this point. The objector had been aware that the applicant used the car privately and the applicant had sold his own car shortly after commencing employment with the respondent. The applicant had used the car on weekends and holidays. Mobile phone records supported these conclusions.

[60] The objector drew a distinction between where a car was offered as part of a salary package and where it was provided as equipment in order for an employee to do their job; See: Condon v G James Extrusion Co (1997) 74 IR 283 ('Condon'); Rofin Australia Pty Ltd v Newton (1997) 78 IR 78 ('Rofin') and Slavin v Horizon Holdings Pty Ltd [2012] FWA 2424 ('Slavin'). The agreement referred to in Maturu v Leica Geosystems Pty Ltd [2014] FWCFB 6735 ('Maturu') should be distinguished from that in the current case. In determining an employee's total earnings, the emphasis was on the private benefit received by an employee. Here the applicant received the car as part of a salary package and it could not be said to be 'incidental' to his work.

[61] The respondent acknowledged that as there was no agreed value for the use of the car, Reg 3.05(6)(a)(ii) of the Fair Work Regulations 2009 (the 'Regulations') set out the Commission could estimate a 'real or notional money benefit' in relation to that benefit. It had paid for all services and maintenance to both cars provided to the applicant, which totalled $8,033 from July 2013 to September 2014. The service records demonstrated average annual odometer readings of approximately 23,000km per year. While the applicant had insisted that he had used the car for purposes incidental to his work, this was not consistent with his concession that he drove his car to Cabarita on the weekends. The calculation should be made by reference to the RACQ assessment of private ownership costs of operating a vehicle as at 3 March 2014 on the basis of 15,000km p.a. This methodology was consistent with that used in Slavin. Where a car was used for 23,000km per year, the total annual worth could be estimated at $19,090. While there were no logbooks, it was fair to say that the applicant's personal use of the motor vehicles was approximately 60%, resulting in a personal benefit of at least $11,454.00.

[62] The respondent drew the Commission's attention to the Company provided iPhone and iPad. While the Letter of Employment set out that the phone was to be used 'directly for purposes related to the business of the Company', there was an oral agreement between the parties that he was entitled to personal use 'within reason'. The former did not necessarily preclude the latter. This was supported by the conduct of the applicant in using the phone and the respondent in paying the bills. It was Ms Lall's evidence that the great majority of calls he made were personal and could not be said to be 'incidental' to the applicant's use of the phone for business purposes. Based on Ms Lall's evidence, the Commission should determine that the personal benefit derived from the use of the mobile phone, was 62% of the total cost per month.

[63] The iPad contained 619 personal photos, as opposed to 21 work related photos. The Commission should estimate the value of the provision of the phone to the applicant as being $130.00 per month and the provision of the iPad as being $39.00 per month. Additionally, the applicant's iPad bill for June 2014 was $434 and had been $75 for the previous month. The personal benefit should be considered to be at least the excess amounts for those two months, being $431.00.

[64] The respondent concluded that by reference to the above amounts, the Commission should find that the annual earnings for the purposes of determining whether he had reached the high income threshold, should be $134,632.00. Accordingly, the application was not within the jurisdiction of the Commission and should be dismissed.

[65] In oral submissions, Ms Whitehouse referred to cl 20 of the Award (dealing with ordinary hours of work and rostering), cl 10 (which deals with the distinction between casual, full time and part time employees) and cl 7 (which deals with individual flexibility arrangements). The evidence of both parties was that there were no fixed start and finish times and no individual flexibility arrangement in accordance with cl 7.

[66] Ms Whitehouse put that the applicant's job title and the work he performed supported a finding that he was a managerial employee. Whether he managed individual contractors or employees was a matter of semantics. What was important was that he managed a body of people. He had discretion to determine when he would attend the premises or engage security officers.

[67] In written submissions, Ms Dorney set out the legislative framework which determined when a person was protected from unfair dismissal. She put that the only amount that should be considered for the purposes of determining the applicant's 'earnings' should be his salary. The company vehicle was to be used in undertaking his employment duties, by attending the respondent's properties across Brisbane, as necessary. He was effectively on call 24/7. It was not a benefit and could not be considered as 'earnings' for the purposes of s 323 of the Act. This was evidenced by the Letter of Employment (see para [39]), which recorded the provision of the car as being 'principally for the purposes directly related to the business of the company.' The applicant could not be said to be 'entitled' to the personal use of the vehicle and no monetary value was agreed between the parties.

[68] Ms Dorney noted that similarly, the provision of the mobile phone was recorded in the Letter of Employment as 'to be used directly for purposes related to business of the company.' He was required to use his phone for work purposes, during and after work hours. He had not agreed to a monetary value with the respondent as to any benefit received by him. While he admitted that he had used it for personal purposes, this was not because of any agreement between the parties. Rather, as the respondent was paying a fixed amount of $130 per month, he had not believed the Company would mind if he made some personal calls within those parameters.

[69] Ms Dorney said that the iPad had been handed to the applicant by Mr Smith after he commenced employment with the words, 'Here, you can use this for your work'. There was no personal benefit to the applicant and this should not be considered as part of the applicant's 'earnings'. Ms Dorney drew the Commission's attention to Maturu, in which the Commission refused to accept the personal use of a laptop and mobile phone in the determination of an employee's annual rate of earnings where the use of this equipment was governed by a contract of employment and there was no agreement between the parties as to the extent of personal use.

[70] Ms Dorney put that the applicant's employment was covered by the Award. While he had had responsibility for maintenance and works, he had not had expense authority and was required to get approval from the directors before he could authorise works. He did not have a management position. It was noted that Mr Russell was an independent contractor.

[71] Ms Dorney submitted that the Commission was precluded from estimating a real or notional monetary amount to personal benefits received by the applicant, pursuant, to r 3.05 of the Regulations. The mere receipt of a personal benefit was insufficient where the use or benefit of equipment is essential to an employee's job or was not given, or agreed to, in lieu of remuneration that might otherwise be paid. Rather, it should be considered as nominal or incidental; See: Maturu, Magagna v FAI Workers Compensation VIC Pty Ltd [1995] IRCA 519 per Millane JR, No 516/95), Condon and Rofin.

[72] Ms Dorney noted the terms of the Letter of Employment set out that the motor vehicle and phone were to be used for the purposes related to the business of the Company and there had been no variations of those terms. These were not set out as additional to the applicant's salary. The evidence of Mr Smith in relation to an oral contract was disputed by the applicant. The presence of these terms did not indicate that the provision of a vehicle and mobile phone were part of a salary package. They were tools for him to do his job, in which he was required to drive between the objector's properties and be on call 24/7. The Letter of Employment did not set out starting or finishing times. There was evidence that the applicant would 'surrender' the car when he was not on call and the car was registered to Mr Smith.

[73] Ms Dorney referred to the powers granted to the Commission, pursuant to Reg 3.05 and submitted that this power was not enlivened in this case. However, in the alternative, she made submissions as to the basis on which such calculations could be made with reference to Condon, Slavin and McIlwraith v Toowong Mitsubishi Pty Ltd [2012] FWA 3614. The calculation should be based on the total kilometres the car was driven in the year in question, multiplied by the percentage the car was used for private use and multiplied by an estimate of the 'cost per kilometre' as published by RACV or a similar organisation.

[74] Ms Dorney said that the applicant was content to adopt RACQ's figure of 83.02 cents per kilometre, but this should be calculated according to his actual private use, which, with reliance on the logbook provided by the applicant, was estimated as being at 24%. There was no basis for a finding of 60% as the applicant, denied going to Cabarita every weekend. The respondent had not provided Fringe Benefit Tax statements to support such a finding. The value of an employer provided mobile phone should be calculated in a similar fashion, consistent with the principles set out in Slavin. Ms Dorney noted that Ms Lall could not possibly know the number of business calls actually made by the applicant. The applicant estimated that 40% of the calls made on the phone were personal in nature. Ms Dorney submitted that no personal benefit could be identified in the use of the iPad as it was used to send and receive emails at home after hours, on weekends and during holidays.

[75] Ms Dorney identified the 'principal purpose' test, set out in Carpenter v Corona, as appropriate in determining whether the Award applied to the employment of the applicant. While the applicant's title was 'Property/Facilities Manager', the Commission should look beyond this title and take into consideration that he was responsible for managing the identification and carrying out of works, rather than employees. The management of tasks was distinct to the management of the operation of the business. The applicant had denied having expenditure authorisation to spend up to $5,000. Mr Smith had given evidence that he was not required to manage the buildings alone, rather there was a team including himself, another director, the bookkeeper, personal assistant and the applicant involved. He had not been required to supervise employees of the respondent, but was required to engage independent contractors. Mr Russell was a preferred independent contractor.

[76] Ms Dorney submitted that the use of the word 'Manager' only connoted his responsibility for looking after the operation of buildings, rather than denote responsibility to manage a component of the respondent's internal business operations. He could not be considered a 'managerial employee' and the applicability of the Award was mandated by statute.

[77] Ms Dorney revised the previous submission of the applicant and noted that the respondent's financial controller had provided payslips demonstrating that the applicant's earnings were $121,560, rather than $121,780.

[78] In oral submissions, Ms Dorney developed her submission on the distinction between a 'managerial employee' and an employee whose task is to manage his own task, being in this case, the management of buildings. 'Managerial employees' were defined at cl 4.2 of the Award as including:

'managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.'

It was relevant that the applicant did not manage further staff involved in building management.

[79] The applicant claimed that he was covered by a modern award - the Miscellaneous Award 2010 [MA000104] and, accordingly, he was a person protected from unfair dismissal (s 382(b)(i)). It follows that if the Commission finds that the applicant was covered by a modern award, it will be irrelevant whether the applicant's annual rate of earnings were above the high income threshold.

[80] It is appropriate to have particular regard to the award's coverage and classification structure. Cl 4, dealing with coverage, is set out as follows:

4.1 Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14 - Minimum wages who are not covered by any other modern award.

4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

(a) in an industry covered by a modern award who are not within a classification in that modern award; or

(b) in a class exempted by a modern award from its operation,

4.4 The award does not cover employees excluded from award coverage by the Act.

4.5 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.6 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.7 This award covers any employer which supplies on-hire employees in classifications set out in Schedule B and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.

4.8 This award covers employers which provide group training services for apprentices and trainees under this award and those apprentices and trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.'

[81] Schedule B identifies the Award's classification structure and definitions. It is expressed as Levels 1-4 as follows:

Schedule B - Classification Structure and Definitions

An employee at this level has been employed for a period of less than three months and is not carrying out the duties of a level 3 or level 4 employee.

An employee at this level has been employed for more than three months and is not carrying out the duties of a level 3 or level 4 employee.

An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.

An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.

[83] From the applicant's own evidence, it would appear that he carried out his duties with little, or no direction from, or supervision by Mr Smith (or anyone else for that matter). The applicant's evidence was that:

(a) 'At no stage during that conversation or any subsequent conversation prior to my termination did Mr Smith say anything to me in relation to ... [a] set time I was required to start work each day and what time I was to finish ... [or] [w]hat days and times and frequency I should attend the properties and the office maintained by Trade Coast.'

(b) 'at no time did Mr Smith direct me as to how and when I was to undertake my duties.'

[84] Moreover, the applicant's duties included the management/supervision of others, namely Mr Russell and other tradespersons and contractors ('I would manage the contractors'). Whether Mr Russell was an independent contractor is irrelevant in circumstances where the applicant was clearly coordinating and supervising other contractors.

[85] It is difficult to reconcile the applicant's downplaying of his role with the Duty Statement (Annexure A), which the applicant himself had prepared. It is plainly not that of an employee engaged under the Miscellaneous Award 2010. It reflects a broad range of managerial and/or supervisory duties and responsibilities. In my view, the applicant seriously downplayed the significance of his role which is not supported by the preponderance of evidence to the contrary. As I said in Trutwein v Harness Energy Services Pty Ltd t/as Harness Energy [2015] FWC 1816:

'[65] As an aside, I find it intriguing, that in many unfair dismissal cases, the dismissed employee will tell me that he/she was an invaluable asset to the employer. The dismissed employee often cites an extensive range of skills and wide experience in order to challenge the basis for their dismissal. Yet, in this case, a senior employee, being paid well above the high income threshold, contends that he was covered by a Modern Award and argued he was really just an unskilled worker with little independent discretion or responsibility in his job. The objective evidence does not bear this out.'

[86] In addition, there would appear to be very little synergy with the Award and the applicant's contracts of employment. For example:

(a) the applicant was paid a salary of $1,769 per week, which was far in excess of the highest minimum rate under the Award of $814.20.

(b) The applicant was paid no overtime, penalty rates or on call allowances when, on his own evidence, he was 'on call' 24/7 and he attended to emergencies on a regular basis outside of business hours.

(c) It was the applicant's own evidence that he had no fixed hours or starting and finishing times.

(d) There was no evidence that the applicant had entered into an Award-based individual flexibility arrangement, pursuant to cl 7 of the Award.

[87] In my view, the applicant's effective contract of employment had all the hallmarks of a contract for a 'managerial employee' and was not an arrangement compatible, or operating in conjunction with the Award. I am satisfied that the applicant was a 'managerial employee' and therefore excluded from the coverage clause of the Award as set out in cl 4.2.

Was the applicant's remuneration above the high income threshold?

[88] Three components of the applicant's employment arrangement are in issue in this case - the private use of a Company provided motor vehicle, the personal calls made on a Company provided mobile phone and the personal use of a Company provided iPad. I shall deal with each component in turn.

[89] The tenor of the applicant's case was that if he had not expressly agreed to being given a benefit, or it was not part of his initial Letter of Employment or it was provided after he commenced employment, that this somehow negated or reduced the value of the benefit for the purposes of the annual rate of earnings test. In addition, the applicant described the private use of the motor vehicle and mobile phone as 'incidental' to his primary function as being 'on call' 24/7. Presumably, he relies on the conclusions in Condon and Rofin. I turn to what was said in Rofin:

'In dealing with the question of the motor vehicle, Commissioner Deegan adopted the principles enunciated by Senior Deputy President Watson in Condon v G James Extrusion Company (1997) 74 IR 283, namely that -

"1.the private benefit derived by an employee through the provision to such an employee of a fully maintained motor vehicle will constitute remuneration for the purpose of s 170CC(3) and (4), and

2.for the purposes of determining remuneration, the focus should be upon the private benefit derived by the employee and the provision of a motor vehicle for business purposes would not form part of the remuneration."

These principles appear to reflect a distinction that has been made, in our view quite properly, between the provision of a motor vehicle as part of a salary package and the provision of a motor vehicle as a piece of equipment supplied by the employer to enable the employee to perform the job (Magagna v FAI Workers' Compensation Vic Pty Ltd (unreported, Industrial Relations Court of Australia, Millane JR, 21 September 1995, Decision No 628/95); see also Witkowski v API Securities Pty Ltd (unreported, AIRC, (Print P2850)). Where a motor vehicle is provided to an employee in lieu of salary that might otherwise have been paid, it is appropriate that the private benefit derived by the employee from the provision of the motor vehicle be counted as part of the employee's remuneration. Where, however, the vehicle is provided for business purposes and the employee's entitlement to private use is purely incidental, the provision of the motor vehicle should be treated no differently to the provision by the employer of any other tool or piece of equipment essential to the performance of the job.'

[90] At this point, it is relevant to set out the terms of Reg 3.05(6) of the Regulations, which are as follows:

3.05 When a person is protected from unfair dismissal - high income threshold

(1) For subparagraph 382(b)(iii) of the Act, this regulation explains how to work out amounts for the purpose of assessing whether the high income threshold applies in relation to the dismissal of a person at a particular time.

(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person's employer; and

(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and

(c) the FWC is satisfied, having regard to the circumstances, that:

(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and

(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and

(iii) the FWC can estimate a real or notional money value of the benefit;

the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act.

[91] I am satisfied that at the time the applicant and Mr Smith were discussing the applicant's future employment, the issue of a Company provided motor vehicle included agreement as to the unlimited and unqualified private use of the vehicle. After all, why would the applicant divest himself of his own private vehicle, shortly after commencing employment, if the Company provided car was limited in respect to private usage? I am satisfied that there was an agreement between the parties that the applicant would receive a benefit which was not an entitlement to a payment of money and was not a non-monetary benefit, within the meaning of s 332(3) of the Act.

[92] I note that the circumstances here are entirely distinguishable from other instances where the employee receives an allowance or reimbursement for the running costs associated with the business use of his private vehicle; See: Davidson v Adeco [2012] FWA 8393 and Fitzhenry v Linde Material Handling Pty Ltd [2015] FWC 1094.

[93] There is no dispute that the applicant would often fill up with fuel on a Thursday or Friday and then refuel after the weekend. The uncontested evidence was that he and his wife often went to their holiday home at Cabarita in Northern New South Wales (a round trip of 240km), although I note that the applicant attempted to mitigate this evidence by saying that it was not 'every weekend'. There was no evidence that the applicant had ever returned from Cabarita on a weekend to attend to some emergency issue arising at the properties he managed. In addition, there was no rebuttal to the respondent's evidence that the applicant's phone records disclosed many calls from locations far removed from where the respondent's properties were located.

[94] In my view, the evidence, including that of the applicant, does not support a finding that the private use of the company provided motor vehicle was 'incidental' to the applicant's employment.

[95] Of course, the obvious difficulty for the Commission in this case is assessing the extent of the private usage of the motor vehicle, given that no logbooks were available for the entire employment period. The only snapshot of the logbook records in the evidence was not particularly helpful. A not dissimilar set of circumstances faced His Honour, Hamberger SDP in Zappia v Universal Music Australia Pty Limited [2012] FWA 3208. In that case, His Honour said at paras [15]-[16]:

'[15] In the circumstances of this case however, despite the wording in the employment contract, the motor vehicle was used primarily for private purposes. It was the use for business purposes that was incidental. In reality, the provision of the motor vehicle constituted a significant part of the applicant's remuneration package. Therefore, it would be consistent with Rofin to have regard to the value of the private use of the company car.

[16] While the personal value of the company car does not form part of the applicant's earnings as defined by s.332 (because there has been no agreement as to the monetary value of this benefit) the tribunal has the discretion to estimate the real or notional money value of the benefit in accordance with r.3.05(6). In all the circumstances, I consider that I am able to, and should, make such an estimate. The applicant argued that the records produced with regard to the motor vehicle are incomplete and unreliable. However, I am satisfied, given the evidence both of the applicant and the respondent, that I have sufficient material on which to base such an estimate. Moreover, as private use of the vehicle formed a significant part of the applicant's overall remuneration package it would be inappropriate to exclude it from my calculations.'

(His Honour's decision was unsuccessfully appealed in Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia [2012] FWAFB 6108 with the Full Bench expressly finding no error in the Senior Deputy President's findings and conclusions.)

[96] In the absence of any agreed value for the private use of the motor vehicle or proper records, Reg 3.05 enables the Commission to make an assessment of the notional value of the benefit of the vehicle for determining whether the high income threshold has been exceeded. Despite some initial argument over the methodology adopted by the respondent as to the RACQ and ABS statistics, I am comfortable in adopting that approach as a sound one in this case and accept the respondent's assessment of 60% private usage of the motor vehicle (although this is a conservative figure which is not based on the full value of travel to and from work).

[97] For a slightly lesser valued car than the applicant's vehicle/s, the annual private value of an automatic VF Commodore Evoke 3L is $12,453.00 for 14,000km (Qld). There appeared to be no dispute that the applicant's average annual distance travelled was 23,000km, resulting in a total value of $19,090. 60% of this figure is $11,454. I consider that figure to be a conservative estimate of the notional value of the private usage of the applicant's Company provided vehicle, given the following other issues.

[98] Mr Smith also gave evidence that the Company paid toll charges in circumstances where the applicant was nowhere near any of the respondent's properties. While I have no evidence as to the total value of the tolls, it is clearly a matter to be taken into account, as the Full Bench in Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia [2012] FWAFB 6108 said at para [13]:

'[13] Finally, his Honour was correct in taking into account the value of the tolls paid by the respondent in respect of the private portion of the appellant's travel. It matters not that this was by way of reimbursement, rather than by direct payment. The payment of the tolls was a benefit other than payment of money for the purposes of regulation 3.05(6). In the event that it was not, applying a purposive approach to the interpretation of the word "reimbursements" in section 332(2)(b) of the Act, the word does not contemplate reimbursements of outlays incurred for private, as approved by business, purposes. The payment by an employer for an employee's private outgoings, whether directly or by way of reimbursement, clearly constitutes part of that employee's remuneration.'

[99] I also note there was no dispute that the Company paid the applicant's speeding fines, with Mr Smith candidly acknowledging that he 'took the rap' for the demerit points attached to the fines the applicant incurred.

[100] The applicant relied on the Letter of Employment which said, inter alia, that the mobile phone was 'to be used directly for purposes related to the business of the Company.' However, this belied the reality. I accept there was an oral agreement that the applicant could use the phone for personal calls 'within reason'. That this must have been the reality is no better demonstrated by the conduct of the parties. The applicant accepted that he had used the phone for personal calls, but again, as with the vehicle, he argued that this was 'incidental' to the phone's primary business purpose. The respondent was well aware that the applicant was using the phone for personal calls, as it was paying the bills. The phone records plainly disclosed numerous personal calls, not just the odd two or three per month.

[101] The best evidence the Commission has of the personal usage of the phone was the laborious exercise undertaken by Ms Lall as to the phone numbers recorded for the period of 22 August - 22 September 2014. While there was some dispute over the reliability of this exercise, I do not consider that Ms Lall's analysis was seriously undermined and was perhaps even somewhat conservative, given that some calls to contractors or tradespersons may have been because of their friendship with the applicant. This phone record exercise disclosed that of 659 national direct calls, it appeared that 412 were direct personal calls (62.5%).

[102] Again, a complication arises as to calculating the direct benefit to the applicant of his personal phone use, because the phone was on a business plan with a generous cap on usage (which was never exceeded). As I understand it, the applicant's argument is that the Company would have had to pay the $163 (less $33 credits) per month cost of the plan, irrespective of how many personal calls he made. I reject this argument. The applicant clearly gained a personal benefit that he would have otherwise had to pay if he had his own phone for personal use. Moreover, he would not have been able to access the business only component of the plan.

[103] The applicant did not directly provide any sound alternative methodology on which the Commission might have been able to base its calculations. There was no dispute that the phone was used for business purposes, but certainly not for a majority of the time. Given the respondent's business records evidence - which I am prepared to accept - I will give the figure of $163 per month a component of business usage, meaning the per annum benefit to the applicant is $163.00 x 62.5% x 12, or $1,222.00 (Add Salary $121,560.00 + $11,454.00 + $1,222.50 = $134,236.50).

[104] Obviously, given the above two findings, the salary cap threshold has been exceeded, without taking into account the iPad value of $39 per month. I accept the objector's submission that there were 610 personal photos on the iPad, eight videos on Instagram and Microsoft Clip Organiser, as distinct to 21 work related entries. There was no serious attempt to challenge this claim. I find it difficult to accept that an explanation for personal use was the applicant's son occasionally playing on the iPad without his knowledge. But again, to give the applicant the benefit of the doubt, I would attribute a notional personal iPad usage of 50%, resulting in $39 x 12 x 50% = $234.00.

[105] Accordingly, I find that as the applicant's annual rate of earnings was $134,470.50, he is not a person protected from unfair dismissal, pursuant to s 382 of the Act. It follows that the Commission has no jurisdiction in this matter and the application must be dismissed. An order to that effect will accompany the publication of this decision.

Ms D Whitehouse of Counsel with Mr P Armit, Solicitor for the respondent.

Printed by authority of the Commonwealth Government Printer

var _gaq = _gaq || []; _gaq.push(['_setAccount', 'UA-9592794-1']); _gaq.push(['_trackPageview']); (function() { var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true; ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js'; var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s); })();