Fair Work Act 2009

s.394 - Unfair dismissal

• [1] This matter involves an application made on 2 November 2021, by Mr Matthew Bogaers (Mr Bogaers or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is OS ACPM Pty Ltd (the Respondent).

• [2] The Respondent has moved for the dismissal of this application because Mr Bogaers' annual rate of earnings is above the current high income threshold of $158,400 applicable from 1 July 2021 (section 382(b)(iii)) and Mr Bogaers' employment is not covered by a modern award (section 382(b)(i)) nor does an enterprise agreement apply (section 382(b)(ii)).

• [3] On 19 November 2021, the Commission wrote to the Applicant inviting him to either file materials in response to the jurisdictional objection or discontinue his application.

• [4] On 28 November 2021, the Applicant advised he wished to proceed with his application because his base rate of pay was below the high income threshold and that the 20% work allowance he received should not be a consideration because if he was to be relocated he would not receive the allowance.

• [5] The application was then referred to me for determination.

• [6] Consequently, on 7 December 2021, I wrote to the parties inviting the Respondent to provide information to support their jurisdictional objection and then inviting Mr Bogaers to provide information in reply. The letter indicated that at this point it was proposed that the objection be determined on the papers but if necessary a hearing would be held.

• [7] In compliance with the Commission's directions the Respondent provided submissions asserting that no enterprise agreement applied to the Applicant and that he was not covered by any modern award and finally that his earnings included a rate of pay of $163,992 per annum which exceeded the high income threshold of $158,400.

• [8] The supporting materials provided by the Respondent included a contract of employment sent to the Applicant on 29 April 2020 (the Contract) and a series of payslips for the Applicant confirming the rate of pay was $136,660 plus a 20% work allowance per annum.

• [9] The Applicant did not provide any materials in reply to the Respondent's materials and consequently I wrote to him allowing him further time.

• [10] As at the date of this decision nothing further has been received by the Applicant.

• [11] The relevant section of the Act is section 382 which is set out below.

"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."

• [12] Based on the submissions provided to the Commission, I find that no modern award covered the Applicant's employment nor was there an enterprise agreement applying to him in relation to his employment.

• [13] I agree with the Respondent's submissions that the 20% work allowance payment referred to in the Contract falls within wages for the purposes of the definition of earnings in section 332(1)(a) of the Act and does not otherwise fall withing any of the exceptions in section 322(2) of the Act. I find that the Applicant's annual rate of earnings was $163,992 per annum which exceeds the high income threshold.

• [14] Consequently, I am satisfied that in terms of section 382 the Applicant was not a person protected from unfair dismissal and consequently the Commission is unable to order any remedy under section 390(1) of the Act.

• [15] This application will be dismissed for want of jurisdiction and an order [PR737558] to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer