[21] The applicant also referred to Roberts v High Professional Productions Pty Ltd T/A Hi-Vis Labour Hire [2010] FWA 3462 ("Hi-Vis"). The applicant submitted that Hi-Vis considered the question of private/business use of a vehicle, mobile telephone and laptop computer in determining the high income threshold. He submitted that in Hi-Vis certain components of an applicant's salary package relied on by the respondent were found to be business-related, with the result the applicant's earnings fell below the high income threshold. The applicant submitted he had incurred work-related vehicle and mobile telephone expenses, and those expenses, by extension of the findings in Hi-Vis, should be taken into account so as to reduce his earnings - thereby bringing him below the high income threshold. Mr Moore submitted the decision in Hi-Vis was "easily distinguishable" from the application in this matter. He noted that the applicant's wages in Hi-Vis were below the high income threshold and the case involved, as in the "vast majority of these matters", an assessment of various additional benefits provided to an employee in calculating whether the relevant cap was exceeded. Mr Moore submitted that in this application, by contrast, the applicant's actual wages exceeded the high income threshold and, as such, there is no need to conduct any further assessment as to the monetary value of any additional benefits of the type considered in Hi-Vis. Mr Moore submitted his research had uncovered only one decision where the wages and other amounts took payments to an applicant above the high income threshold, but that case was also distinguishable as it had turned on issues involving a reimbursement-type, living-away-from-home allowance: Mr Lee C v CLS Pty Ltd [2009] FWA 779. I accept Mr Moore's submission that the cases to which reference was made are distinguishable from the circumstances of this application.

[22] Section 332 of the Act provides the following definition of "earnings":

(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 292-175 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."

[23] Further, the Fair Work Act Regulations 2009 relevantly read 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.

Note Under section 382 of the Act, a person is protected from unfair dismissal if specified circumstances apply. One of the circumstances is that 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.

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

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

[24] As to the matters raised by the applicant in relation to the wages of $115,605, Mr Moore submitted "there is no merit or basis under the Act or Regulations for the Applicant's contention that his annual rate of earnings should be reduced by the value of the deductions he claims in his personal tax return for work related expenses". He submitted that the applicant's 2008/2009 tax return is irrelevant, in circumstances where it was common ground the applicant's wages were $115,605. Mr Moore submitted the applicant had personal use of his own mobile telephone and vehicle, and had tendered evidence as to the work-related deductions legitimately claimed as part of his income tax return. Mr Moore submitted this is "where these matters appropriately lie", and that work-related income tax deductions did not reduce the applicant's earnings; specifically, those deductions did not reduce his "wages" within the meaning of s.332(1)(a) of the Act.

[25] The applicant's evidence indicated he received a "car and phone allowance" until 2009, at which time the allowance was discontinued with advice from the respondent's general manager to the applicant that he "would be financially better off receiving a gross payment of a higher salary and making the deductions for work related expenses through his own tax return." From that time, the applicant did not receive a separate allowance, but instead received an increase in his base wages. It is not contested that the applicant used his own vehicle and mobile telephone for work-related purposes and that he incurred expenses thereto. In this respect, the respondent's general manager, Stephen Harris, confirmed the applicant was required "as part of the agreement" to use his vehicle for business purposes. Mr Harris's evidence also confirmed the applicant was required to use his personal mobile telephone for work purposes, but only until early 2010 - when the respondent provided him with a mobile telephone. It is not clear how much by way of an "allowance" the applicant formerly received, or the means by which it was paid, with the applicant submitting only that he used to receive a "contribution". It was also unclear what "higher salary" the applicant received from 2009 instead of the payment of an allowance, with the increase arising as part of a general, annual review. The higher wages came into effect around April 2009, and were back-paid to around January or February 2009.

[26] Given the body of cases in which the private/business use of employer-provided benefits such as cars has been considered in ascertaining the value of various applicants' overall remuneration, there is, on one view of it, a certain symmetry to the contentions advanced by the applicant concerning the work-related expenses for using his private vehicle and mobile telephone having an offsetting effect on his "true income" from the respondent. That is, in cases where there has been issue about an unfair dismissal applicant's overall remuneration in the context of salary caps concerning such applications, consideration has often been given to the private versus business money value to the employee of employer-provided cars and the like. In a reverse of the usual position that has arisen for consideration in such cases, the applicant used his own vehicle and mobile telephone for the business benefit of the respondent, and the applicant bore those expenses personally - save as to claiming them as work-related deductions in his income tax return. The applicant submits that his earnings should be reduced concomitantly by the amount of such work-related expenses, in the amount claimed (or claimable) to the ATO.

[27] Notwithstanding the position advanced by the applicant, I am inclined to accept Mr Moore's submission that the deductions for work-related expenses claimed or claimable in the applicant's income tax return do not appear relevantly to arise in ascertaining the applicant's earnings for the purposes of the Act, even though they reduce his taxable income (relevantly as it concerns the income from his employment with the respondent less work-related deductions). That is, s.332(1)(a) of the Act refers specifically to "the employee's wages", which here were $115,605. The expenses/deductions to which the applicant has referred are not identified in the matters which are not included in an employee's earnings under s.332(2). In this respect, I doubt income tax deductions/refunds from the ATO for work-related expenses would be considered to be "reimbursements" within the meaning of s.332(2)(b)). The Act defines the meaning of earnings and the applicant's earnings, as wages, were above the high income threshold. If the applicant's contentions were accepted, there could be differential outcomes in terms of whether the high income threshold had been exceeded for employees who had identical wages above the high income threshold. For example, if employee "A" chose to have a very expensive personal vehicle and employee "B" had a far less expensive personal vehicle, which they each used for identical amounts of work-related travel commitments for the same employer, employee "A" may have claims for work-related deductions that far-exceed those of employee "B" when matters such as insurance and leasing costs were taken into account. The applicant's earnings from his employment with the respondent and the work-related expenses claimable as deductions in an income tax return made to the ATO seem to be discrete matters.

[28] If, however, I am wrong in that conclusion, the actual deductions the applicant may claim for the most recent financial year were not, in any event, in evidence. The applicant's case proceeded on the proposition that because certain work-related expenses were claimed for 2008/2009, similar claims for deductions would again be made to, and accepted by, the ATO for the 2009/2010 financial year - but that proposition may not be sustainable. For example, the evidence indicated that, from the start of 2010, the respondent provided the applicant with a mobile telephone for work purposes.

[29] The applicant's evidence noted the fact his most recent PAYG payment summary from his employment with the respondent recorded payments below the high income threshold, before any claim for deductions for work-related expenses. As submitted by Mr Moore, although the applicant's most recent PAYG payment summary records a gross payment of $102,405, that income from his employment with the respondent reflects payment for only part of the financial year. The fact remains that, as at the date of dismissal, the applicant's wages were set at $115,605 a year. Although the applicant's wages from his employment with the respondent are recorded in the 2009/2010 PAYG payment summary at an amount below the high income threshold that is attributable to the termination of the applicant's employment some months short of the end of the financial year, rather than establishing his earnings were below the high income threshold.

[30] Having regard to my acceptance of the objections raised by the respondent, I do not consider the applicant was, pursuant to s.382 of the Act, a person protected from unfair dismissal. An order dismissing the application has been issued in conjunction with the publication of this decision.

J. Moore, National Retail Association, for the respondent

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