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[2018] FWC 1520
Fair Work Commission
2018-03-21
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - jurisdictional objection - high income threshold - application dismissed.
[1] Mr Jerome Monteiro (Applicant) was employed by Valco Group Australia Pty Ltd (Respondent) as a Director of the Respondent, with control and management of the operations of the Respondent in Australia. He was responsible for the analyses and identification of market potential and business opportunities within the target market of the Respondent.
[2] The Applicant was dismissed from his employment with the Respondent on 6 November 2017 and has sought relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Respondent has raised a jurisdictional objection to the Fair Work Commission (Commission) dealing with the application as it says the Applicant earned above the high income threshold of $142,000 and was otherwise not covered by an award or enterprise agreement.
[3] The jurisdictional question must be determined prior to a consideration of the merits of the application.
[4] Prior to the hearing I granted the Respondent permission to be represented by a lawyer. The Applicant represented himself.
[5] Section 382 of the FW Act outlines when a person is protected from unfair dismissal 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.
[6] It was not disputed that the Applicant has served the minimum employment period (his contract of employment having been signed on 28 August 2015). It is also not disputed that his employment was not covered by an award or enterprise agreement.
[7] A "high income" employee is defined in s.329 of the FW Act as follows:
(1) A full-time employee is a high income employee of an employer at a time if:
(a) the employee has a guarantee of annual earnings for the guaranteed period; and
(c) the annual rate of the guarantee of annual earnings exceeds the high income threshold at that time.
(2) An employee other than a full-time employee is a high-income employee of an employer at a time if:
(a) the employee has a guarantee of annual earnings for the guaranteed period; and
(c) the annual rate of the guarantee of annual earnings would have exceeded the high income threshold at that time if the employee were employed on a full-time basis at the same rate of earnings.
(3) To avoid doubt, the employee does not have a guarantee of annual earnings for the guaranteed period if the employer revokes the guarantee of annual earnings with the employee's agreement.
[8] "Earnings" are defined in s.332 of the FW 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.
[9] The Applicant started working for the Respondent as an employee in September 2015. Prior to that the Applicant was engaged as a representative of the Respondent in Australia. The Applicant says that the terms of that representative agreement are relevant to the matter to be determined by the Commission.
[10] As a representative of the Respondent the Applicant had an agreement with the Respondent that provided for compensation as follows:
2. "normal expenses" and payment on invoice for laptop, mobile phone etc;
3. Flight tickets and taxi fares for the purpose of representing the Respondent;
4. Dedicated medical insurance fee on invoice "in the range of" $200 per month;
[11] As an employee the Applicant entered into a contract of employment[2] that provided remuneration in the following terms:
3.1 You will be paid a salary of 126,250 $ Gross per Year.
3.2 A car allowance of 13,000 $ per Year (excludes operating costs) will be included within a salary packaging or novated lease arrangement or any other arrangement cost efficient for both Valco Group Australia and the employee.
3.3 In addition, the employer will also make superannuation payments on your behalf in accordance with the Superannuation Guarantee (Administration) Act 1992.
3.4 Your remuneration will be reviewed annually and may be increased at the employer's discretion.
3.5 Below additional benefits will be included in Director's package:
Annual Bonus dependent on achievement of milestones
[12] At the time of his dismissal this was the Applicant's remuneration package.
[13] The issue to determine for the purpose of deciding if the Applicant is protected from unfair dismissal is how the $13,000 per year car allowance should be characterised and whether it forms part of the Applicant's earnings.
[14] The amount actually paid for the "car allowance" was $21,311.48 which was subject to taxation.
[15] The determination is based on submissions of the respective parties. Much is based on a series of emails exchanged between the Applicant and Respondent in finalising the remuneration arrangements. None of the emails is in dispute. The dispute is about the intent of these emails and what can be taken from them.
[16] The Respondent submits that the determination required of the Commission is whether the car allowance as stipulated in the contract is a reimbursement. The determination of this question must be based on the contract of employment and whether, in fact, the allowance was a reimbursement or not.
[17] The Respondent submits that this is the approach taken by the Commission in a variety of decisions and, whilst the decisions may appear to conflict, each turns to whether the allowance is a reimbursement based on the contract of employment.
[18] The Respondent says that this approach is consistent with the provisions of s.332 of the FW Act:
A car allowance is not a "non-monetary benefit" because it is an entitlement to the payment of money;
A car allowance is not an amount dealt with in any way on the employee's behalf;
A car allowance is not an amount prescribed by the regulations;
Because the amount of the car allowance has been determined in advance it will be regarded as part of earnings.
[19] The Respondent says that, in this case, the car allowance paid to the Applicant was not a reimbursement:
There is nothing in the contract that suggests the allowance was intended to reimburse the Applicant;
The contract of employment specifically and separately provides that the Applicant will be reimbursed for business related taxi-travel;
The allowance amount was agreed in advance;
The Applicant was not required to spend the allowance in any particularly way, including on a car;
• The car allowance was paid annually, superannuation contributions were paid in respect of it and PAYG amounts were withheld in relation to the allowance amount. This can be seen by the increase in superannuation amounts paid each month the car allowance was paid.[3] This should be compared to other months where no reimbursements were made[4] or where expenses were reimbursed but superannuation was not paid on these reimbursed amounts.[5]
[20] The Respondent also submits that the car allowance was no more than additional wages.
[21] In response to the Applicant's submissions, the Respondent says that Fringe Benefit Tax is not payable on true reimbursements of expenses and hence would not be payable on the car allowance if it was a reimbursement of expenses. The Respondent submits that the Applicant was alive to this (and that health insurance must be treated as an allowance) as is evidenced by the emails between the Applicant and the Respondent between 25 and 28 September 2015.[6] That the Applicant sought the payment of the allowance in one payment to assist in the purchase of a vehicle it says does not help the Applicant's case.
[22] The Respondent says that the emails exchanged between the Applicant and the Respondent and the Respondent's accountants (Pitcher Partners) of October 2016 support a conclusion that the allowance was totally separate to reimbursement of expenses incurred by the Applicant.[7]
[23] In relation to the email from Xavier Martel in France to the Applicant on 3 October 2016[8] the Respondent says that this cannot be taken to support a conclusion that the allowance was a reimbursement.
[24] The Respondent says that there is nothing in the Applicant's contract that suggests that the Applicant was only reimbursed travel expenses (taxis, airfares) when it was not cost effective for him to use a motor vehicle.
[25] The Respondent submits that it is clear from the changed wording from the representative agreement to the contract of employment that the parties put their minds to matters associated with the car allowance and deliberately decided to alter the wording between the two documents. Further, it says it is clear that, under the contract of employment, the Respondent had no control over how the Applicant spent the car allowance.
[26] The Respondent also submits that the health insurance paid for by the Respondent on the Applicant's behalf should be considered earnings.
[27] The Applicant accepts that there are disparate decisions of the Commission as to whether a motor vehicle "allowance" should be treated as a reimbursement of expenses or an allowance. He submits that the facts of his case support that the allowance was, in fact, a reimbursement of expenses and hence should not be counted as part of his earnings.
[28] The Applicant suggests that the treatment of the allowance should be viewed as a continuation of the arrangements stipulated in the representative agreement he had with the Respondent immediately prior to entering into an employment contract. In this respect he says the Commission should view his engagement with the Respondent as continuous with, and view the contract of employment a variation on, the representative agreement.
[29] The Applicant submits that:
For the avoidance of doubt, the expenses reimbursed to the Applicant for taxi travels occurred only when the Applicant could not, due to distance, use his tool of trade (vehicle) with reasonable cost for the company (fuel cost, parking, tolls, travel duration etc)., as it has been case [sic] for his interstate and international travels.
[30] The Applicant submits that the exchange of emails between himself, the Respondent and the Respondent's accountants clearly demonstrate that the allowance (along with health insurance allowance) was to be treated as a reimbursement. Further, the Applicant submits that it is clear that the amount was paid to him as an advance to acquit purchase of a motor vehicle and is therefore a reimbursement.[9] To this extent the Applicant says he did purchase a motor vehicle to fulfil his duties under his contract.
[31] The Applicant said that the expenses clause of his contract only covered expenses when it "became cost or time effective to not use the car covered by the allowance...and has been used this way by the Applicant."[10]
[32] The Applicant submits that the money was paid as a reimbursement and the motor vehicle purchased was a tool of trade. He says he spent all of the allowance on the car and it was used for no other purpose than work.
[33] The Applicant therefore says that the car allowance and health insurance should be treated as reimbursements of expenses and not included in his earnings.
[34] Both parties referred me to a number of cases of the Commission where the tension between whether a payment made in some way in respect of a motor vehicle was resolved as an allowance or reimbursement.
[35] In Ni Mhorain v UON Pty Ltd[11] (Ni Mhorain) the applicant in that matter was initially provided with a motor vehicle with a nominal value of up to $20,000. Sometime later the applicant and her employer "agreed to substitute the provisions of the company motor vehicle with a car allowance."[12] In deciding that the car allowance was not a reimbursement contemplated by s.332(2)(b) of the FW Act, Deputy President Clancy said:
[33] In Ms Ni Mhorain's case, the employment contract had already provided for the reimbursement of travel expenses, outlining that 'some travel may be required at Company expense and direction' and the entitlement for Ms Ni Mhorain to be reimbursed for 'reasonable travelling and entertainment expenses in connection with business and affairs of the Company upon receipt by the Company of details... [Endnote deleted]
[36] In Pasznicki v Expro Group Australia Pty Ltd[13] (Pasznicki) Deputy President Binet considered the treatment of a car allowance where the applicant in that matter received $120,000 gross salary per annum and a "vehicle allowance of AUD 15,600 per annum".[14] The Deputy President found that the applicant was entitled to reimbursement for use of his private vehicle which he did receive and that this was totally separate to his vehicle allowance. The Deputy President also found that the "vehicle allowance was, in effect, simply an alternative way to describe a portion of [the applicant's] cash wages.[15] The Deputy President therefore concluded the vehicle allowance was part of the applicant's earnings.
[37] In Sinclair v Spotless Management Services Pty Ltd T/A WA Laundries[16] (Sinclair) Commissioner Roe considered if a "Tool of Trade - Vehicle Allowance" of $15,500 per annum should be included in earnings. In that case the Commissioner observed:
[4] The contract of employment states under the heading "Tool of trade - vehicle allowance"
"You will be provided a vehicle allowance for the purpose of compensation for using your own vehicle in connection with official business related purposes. The amount of the allowance is $15,500 per annum payable in equal instalments in each pay period. The Vehicle Allowance is provided to you as an expense allowance and as such does not form part of your ordinary pay when calculating the value of other employment related entitlements. Further in the event your position or employment conditions change and as a consequence of this change the Company considers that regular use of your own vehicle is no longer required for you to perform your duties, then the allowance will cease." [ Endnote deleted]
[38] The Commissioner found that "[o]n its face the employment contract makes it clear that the amount is intended to be a reimbursement in compensation for using the employee's own vehicle at least in part for work purposes..."[17] For this reason the Commissioner found that the amount should not, on its face, be included in earnings.
[39] In Davidson v Adecco Australia Pty Ltd T/A Adecco[18] (Davidson) Commissioner Booth considered whether a "travel allowance of $16,000 per annum"[19] should be included in earnings or not. In that case, where the contract stated that the allowance could only be used in accordance with Adecco policy, the Commissioner found that the amount could not be considered as earnings under s.332 of the Fair Work Act.[20]
[40] In Fitzhenry v Linde Material Handling Pty Ltd[21] (Fitzhenry) Deputy President Sams found that a car allowance was a reimbursement of expenses based on the restrictions in the contract of employment which, whilst requiring the employee to provide their own vehicle limited the make and colour and maintenance of the vehicle. The Deputy President found that "the applicant was not able to freely choose the vehicle he preferred and he was required to obtain a vehicle which was in keeping with the Company's image."[22]
[41] In McDonnell v Qube Ports & Bulk Pty Ltd T/A Qube Ports[23] (McDonnell) Vice President Watson was required to determine the value of the private usage of a company owned vehicle provided to the employee in that matter. There was no dispute that the vehicle in that case was a tool of trade. That case did not involve a contest as to whether an amount paid was a reimbursement or an allowance.
[42] What is apparent from each of the above cases, which has dealt with whether a car allowance should be treated as reimbursement or as earnings, is that in each case the contract under which the allowance was paid or the factual circumstances of the receipt of payment where there is no explicit contractual term was critical to a determination of the matter.
[43] It is more likely that a vehicle allowance will be treated as earnings in circumstances where an employee in receipt of such an allowance is also entitled to reimbursement for travelling expenses and/or where the employer has no control over how a vehicle allowance is spent (Ni Mhorain and Pasznicki) .
[44] A vehicle allowance is more likely to be treated as a reimbursement of expenses where the employer controls how the allowance might be spent (see Davidson and Fitzhenry) or it is clearly contemplated to be in compensation for costs incurred (Sinlcair).
[45] I accept that the decision in McConnell is not a relevant consideration in the matter before me. In that case the vehicle was supplied to the employee by the employer. The decision in that case rested on the apportionment of private usage of the vehicle for the purpose of determining how much of its value should be apportioned to earnings. I have therefore not had regard to it.
[46] I will deal with the health insurance ("personal medical insurance" in the contract of employment) issue first although little was said on this by the Applicant except for assertion that it should be treated as a reimbursement.
[47] In Tipene v Norton Goldfields Limited[24] (Tipene) Commissioner Cloghan considered if the payment of private health insurance premiums were payments which were made regularly and could be ascertained in advance. He found:
I am satisfied that Mr Tipene received, in addition to this salary, the non monetary benefit of private health insurance premiums which were paid by the Employer on his behalf. The monetary value of the premiums, paid on Mr Tipene's behalf, were part of his total earnings while he was employed. The payments were paid regularly and could be ascertained in advance. The private health insurance premiums are not able to be characterised as "payments which cannot be determined in advance" and as such, excluded from his annual earnings.
...These premium payments were made directly by the Employer to the insurer. Notwithstanding that private health insurance premiums vary from insurer to insurer, and Commonwealth government approval is necessary for increases and various rebates, the amounts paid are ascertainable in the ordinary sense, in advance. In any event, I am satisfied that the real monetary value of the benefit was that as set out in the invoices. [25]
[48] In relation to the money paid to the Applicant for health insurance "reimbursement", it was not wages (s.332(1)(a)), an amount dealt with on the Applicant's behalf (s.332(1)(b)) or an amount prescribed by the regulations (s.332(1)(d)). Further, it was not a payment which could not be determined in advance (s.332(2)(a)) as it was set in the contract, nor was it superannuation (s.332(2)(c) or an amount prescribed by the regulations (s.332(2)(d)).
[49] This leaves two possibilities that require consideration: was the amount paid for health insurance a reimbursement (s.332(2)(b) such that it is excluded from earnings) or was it an agreed money value of a non-monetary benefit (s.332(1)(c) such that it is included in earnings).
[50] Reimbursements do not cover any expense incurred by an employee in their everyday life. The Explanatory Memorandum to the Fair Work Bill 2008 states that what is excluded from the definition of earnings is "reimbursements for expenses incurred on behalf of the employer."[26] This makes clear that not every payment made to an employee is a "reimbursement" as contemplated by s.332(2)(b) unless it is in direct recompense for expenses incurred in relation to work on behalf of the employer. Private health insurance is not an expense incurred on behalf of the employer. Private health insurance is an arrangement encouraged by government policy but, ultimately, voluntary on behalf of the employee. The amount is therefore not a reimbursement.
[51] Whilst I accept that, in this case, the contract of employment says that the health insurance payment was "Reimbursed on presentation of receipt" this does not make it a "reimbursement" for the purposes of s.332(2)(b) such that it is excluded from the determination of earnings. Calling something a reimbursement that is not cannot alter its character.
[52] The next matter to consider is if the health insurance "reimbursement" paid monthly to the Applicant on presentation of a receipt was the agreed value of a non-monetary benefit. Non-monetary benefits are defined in s.332(3) as a benefit to which the employee is entitled in return for work and for which a reasonable money value has been agreed.
[53] In this case the Respondent agreed to provide a non-monetary benefit to the Applicant in the way of health insurance. They had agreed that this would be to the value of $200 per month at the time the contract of employment was signed (although the actual payment had increased to $327.87 per month at the time of the Applicant's dismissal). Whilst it is true that much more than this can be paid for health insurance this was the value agreed by the Applicant and Respondent to place on the health insurance. Further, the Applicant was the recipient of the benefit. For this reason, I am satisfied that the amount reimbursed for health insurance was the monetary value of a non-monetary benefit. The amount is therefore captured by s.332(1)(c).
[54] For these reasons I am satisfied that the private health insurance of $327.87 per month ($3,934.44 per annum) should be included in earnings.
[55] The second matter is the car allowance. The Applicant says the "allowance" was, in fact, a reimbursement and hence should be excluded from earnings. The Respondent says it was an additional amount paid to the Applicant, it was subject to taxation and superannuation, and should be considered as earnings.
[56] I accept that when the Applicant was a representative of the Respondent in Australia (prior to being employed by it) he was entitled to reimbursement for the cost of a lease car up to the value of $13,000 per annum. When he became an employee of the business the arrangements with respect to a vehicle changed. This is evident from the different wording found in the contract of employment. As a representative of the Respondent the Applicant was entitled to reimbursement for a lease car. Had it been intended that this arrangement remain in place the change in wording in the contract of employment is inexplicable. This suggests that the parties put their collective minds to the motor vehicle issue and put in place different arrangements.
[57] The wording in the contract of employment supports this conclusion. The Applicant entered into an arrangement whereby he would receive a car allowance of $13,000 per year that could be used for "any other arrangement" (other than a novated lease or salary packaging) cost efficient to both the Applicant and Respondent.
[58] That the Applicant chose to purchase a motor vehicle with the allowance amount cannot alter the words of the contract which provided him with a range of options as to what he could do with the money. There is nothing in the contract that suggests he was required or expected to purchase a motor vehicle.
[59] I am not convinced that the email from Mr Martel, of the Respondent to the Applicant, on 3 October 2016 evidences an intention that the $13,000 was to be paid as a reimbursement for the expense of the requirement to purchase a car. Rather the email seems to suggest that the Respondent was "helping out" the Applicant by providing an allowance payment up front so he could do as he, the Applicant, wished with the money (which was, in this case, to purchase a motor vehicle).
[60] The payment of superannuation and taxation on the car allowance (which was $21,311.48 pre-tax) goes against any finding that the car allowance was a reimbursement of expenses. Taxation is not payable on reimbursements and superannuation is not required to be paid on reimbursement. (I note that there is nothing in the Applicant's contract of employment that suggests superannuation will be paid on any amount over and above that required by legislation.) In any event the documentary evidence suggests that superannuation was not paid on any other legitimate business reimbursements. This weighs against finding that the payment of the car allowance was a reimbursement.
[61] The applicant was entitled under his contract of employment to "Flights/Taxi/Train for Business related travel" and this was paid as reimbursement for costs incurred. There is nothing here or elsewhere in the contract of employment that suggest, as the Applicant does, that "for the avoidance of doubt" there was a requirement that he only use taxis or other forms of travel where he could not use his car and there certainly is no evidence before me that he had to use a car for his business related travel.
[62] I am therefore satisfied that the amount paid to the Applicant by way of a car allowance was an amount which he could use as he wished and is therefore earnings for the purpose of s.332(1) of the FW Act. The Applicant was not required to purchase or own a car of a particular standard. The Respondent put no constraints on the use of the money.
[63] There was some debate as to whether the allowance was $21,311.48 per annum (the pre-tax amount) or $13,000 per annum (the post-tax amount). I consider that the pre-tax amount should be used. It makes no sense that an amount that is to be treated as part of the income of an employee would only have the post-tax amount taken into account when all other aspects of earnings (e.g. salary) consider the pre-tax amount.
[64] At the time the Applicant's employment was terminated his annual earnings were:[27]
[65] The high income threshold at the time the Applicant was dismissed from his employment was $142,000 per annum. The Applicant clearly was earning is excess of the high income threshold. As his employment was not covered by an award or an agreement he is not protected from unfair dismissal within the meaning of s.382 of the FW Act.
[66] The Commission does not have jurisdiction to deal with Mr Monteiro's application for relief from unfair dismissal. His application is therefore dismissed and an order[28] to this effect will be issued with this decision.
N. Burmeister, of counsel, for Valco Group Australia Pty Ltd.
[7] Exhibit A1, document 25. In particular the email of 3 October 2016 which says, in part "Please find attached your payroll calculation...this includes an extra day of annual leave and the yearly car allowance of $13,000 net. Based on this calculation, the total amount payable to you this month is $23,561.94 ($20,618.72 of salary and allowances and $2,943.22 of reimbursements)."
[27] See Exhibit R1, document 14 which shows the Applicant's earnings for the last full month of his employment (he was paid monthly) along with his health insurance amounts and "once off" car allowance payment.
Printed by authority of the Commonwealth Government Printer
Jerome Monteiro
Valco Group Australia Pty Ltd [2018] FWC 1520