Fair Work Act 2009

s.394 - Unfair dismissal

• [1] This decision concerns a jurisdictional objection raised by BHP Iron Ore Pty Ltd (BHP) in response to an unfair dismissal application brought by Mr Brittain under s 394 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The issue before the Commission is whether Mr Brittain's annual rate of earnings, and such other amounts (if any) worked out in accordance with the regulations, was less than the high income threshold.[1] This is a pertinent issue. Whether Mr Brittain was a person protected from unfair dismissal turns on this point. It was not in dispute between the parties that Mr Brittain had completed the minimum period of employment, was not covered by a modern award, and was not covered by an enterprise agreement.

• [3] BHP submitted that Mr Brittain earned more than the high income threshold. It arrived at this conclusion on the basis that Mr Brittain's fixed remuneration at the time of his dismissal comprised of: (a) an annual 'Base Salary' or $136,980.00; and (b) a 'Work Allowance' of $27,396.00. Accordingly, at the time of his dismissal, Mr Brittain's total fixed remuneration was $164,376.00.

• [4] Mr Brittain conceded that if the Work Allowance formed part of his 'annual rate of earnings' for the purposes of s 382(b)(iii) of the Act, then he had earned in excess of the high income threshold and BHP's jurisdictional objection must be upheld.

• [5] I considered it appropriate to determine the jurisdictional objection on the papers given the views of the parties who had consented to such anapproach, the discrete nature of the contentious issue, and the obligation under the Act to deal with matters quickly and in a manner that avoids unnecessary technicalities.

• [6] I note that an amendment to the name of the Respondent was permitted under s 586 of the Act, in light of the incorrect employing entity (BHP Group Limited) having been initially identified on the unfair dismissal application.

• [7] It is uncontroversial Mr Brittain commenced with BHP in around August 2011 in the role of Supply Service Technician in Port Hedland. In around August 2017, he accepted a role with BHP Minerals Pty Ltd (a related entity of BHP) as a Maintenance Planner in the Non Processing Infrastructure Department, and in around March 2020, he entered into an employment contract with BHP for the role of Officer Materials Logistics (Contract). The latter role was situated in Port Hedland on a residential basis.

• [8] In accordance with the Contract, Mr Brittain's fixed remuneration initially comprised of a Base Salary of $129,420.00 and a Work Allowance of $25,884.00. However, as observed, at the time of his dismissal Mr Brittain's total fixed remuneration was $164,376.00, with both his Base Salary and Work Allowance having been increased.

• [9] Section 382 sets out when a person is protected from unfair dismissal. For the purpose of this decision, the relevant subsection that speaks of the high income threshold is s 382(b)(iii), which provides:

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.

• [10] A person's annual rate of earnings, for the purpose of determining whether they exceed the high income threshold, is calculated in accordance with s 332 of the Act, which relevantly defines 'earnings' as follows:

(a) the employee's wages; and

(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.

However, an employee's earnings does not include the following:

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

(b) reimbursements;

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

(d) amounts prescribed by the regulations...

• [11] In the decision of Sam Technology Engineers Pty Ltd v Mr Andrew Bernadou (Sam Technology),[2] the Full Bench concluded that the definition of 'earnings' in s 332 was non-exhaustive and as such, 'earnings' should be given its ordinary meaning.[3] In the course of its reasoning, the Full Bench qualified that the meaning of 'earnings', was subject to the payments and benefits referred to in s 332(1) being included in the meaning of 'earnings' and the payment and benefits referred to in s 332(2) being excluded from its meaning.

• [12] While the Full Bench in Sam Technology considered the word 'earnings' in the context of determining whether a car allowance fell within the scope of the word 'earnings', its reasoning remains relevant here. Drawing upon what Lord Davey expressed in Midland Railway Co v Sharpe,[4] the Full Bench stated:

Now what does a man earn? He earns the sum which is the fruit of his labour; whatever he receives by way of remuneration for the services he gives, or as Lord Macnaghten said in Abram Coal Co v Southern [1903] UKLawRpAC 29; [1903] AC 306, a man's 'earnings' are 'the full sum for which the man is engaged to work'.[5]

• [13] The Full Bench in Sam Technology observed that Lord Davey's definition of 'earnings' had been applied in a number of Australian cases. It reiterated that in the context of s 382(b)(iii), 'earnings' are what an 'employee receives for the work done by the employee in the course of their employment, rather than an amount paid to an employee to meet an expense incurred by the employee in undertaking such work....'.[6]

• [14] It is clear from s 332 and Sam Technology that the word 'earnings' is limited to those components of s 332(1) and excludes those payment and benefits referred to in s 332(2). Further, the ordinary meaning of 'earnings' is to be adopted, and from that meaning it can be concluded that earnings are the fruit of labour, that is, they are whatever is received by way of remuneration for the services provided.

• [15] BHP submitted that the Commission had previously accepted on many occasions that an allowance for location, role, work and being project based, formed part of an employee's earnings.[7]

• [16] The first example it provided was that of Kininmonth v Boom Logistics Ltd,[8] where it was found that a 'job allowance' and a 'location allowance' should both be included in the applicant's 'earnings', because they were:

...guaranteed payments the amount of which was known in advance. I am also satisfied that these payments were not reimbursements. The contract of employment was for a position in Karratha and the location allowance was therefore payable whilst the contract was in place. The job allowance was a guaranteed payment in the contract of employment.

• [17] The second decision referred to by BHP was that of Deputy President Asbury in Baker v Rio Tinto Coal Australia Pty Limited,[9] where it was held that a 'location allowance' formed part of the applicant's 'wages' (as that term was used in s 332(10(a)), and the third was that of Commissioner Williams in respect of a 20% 'work allowance payment' in Bogaers v OS ACPM Pty Ltd.[10]

• [18] Mr Brittain's employment contract provided for the 'Base Salary', as noted, and then a 'Work Allowance', which was comprised of 20% of the 'Base Salary'. The 'Work Allowance' was defined as:

Work Allowance is payable to Pilbara based employees in consideration of the associated average working hours, hardship of roster arrangement and all aspects of working at site operations. Work Allowance is calculated as a percentage of Base Salary.

• [19] Mr Brittain contended that on the face of the abovementioned definition and based on his evidence, that he was paid the Work Allowance as a recognition that Pilbara based employees had to get their own accommodation and get to site themselves rather than being flown in like FIFO workers; the Work Allowance was akin to 'reimbursement principles' and was not in reality a payment for work or his services.

• [20] Mr Brittain pressed that the definition of the Work Allowance was outside the ordinary meaning of 'earnings,' and like the car allowance dealt with by the Full Bench in Sam Technology, the Work Allowance did not form part of the definition of 'earnings' as understood by reference to s 332 of the Act.

• [21] In response to Mr Brittain's contentions, BHP highlighted that the Work Allowance was a payment clearly made to compensate Mr Brittain for the matters expressly referred to in the definition, including the working hours associated with his role and roster, and all other aspects of working at a (remote) mine site. That is, the Work Allowance was directly made in consideration for Mr Brittain performing his role.

• [22] Further, said BHP, the Work Allowance was referred to in the Contract as forming part of the Mr Brittain's 'Fixed Remuneration' (as opposed to a variable component, such as the 'Short Term Incentive Plan Target,' which provided an indicative value). Therefore, the Work Allowance was able to be determined in advance.

• [23] Regarding Mr Brittain's reliance on Sam Technology, BHP submitted that such reliance was misplaced as the case concerned the consideration of 'car allowance' payments which were made in circumstances in which there was a requirement or expectation that the applicant would use their own car for work purposes. It was on that basis, the Full Bench found that only the value of the 'private benefit' of the allowance was to be included within the applicant's earnings.[11] It therefore could not be said, stated BHP, that the circumstances were analogous to those in Sam Technology, as there was no suggestion that the value of the Work Allowance was not entirely for Mr Brittain's private benefit.

• [24] In short, Mr Brittain seeks to attribute to the term 'Work Allowance' a meaning that is simply not open on a plain reading of the clause. First, the definition of 'Work Allowance' informs that it is consideration for associated average working hours and hardship of the roster arrangement. The average working hours and hardship of the roster arrangement pertain directly to the work done by Mr Brittain during the course of his employment. Such consideration is not paid to him to meet some sort of expense incurred that is open to be characterised as reimbursement - it is for the fruits of his labour. Second, the payment is expressly calculated as a percentage of the Mr Brittain's 'Base Salary', rather than having any connection to any 'actual cost' that he may have incurred or would likely incur. Third, the Work Allowance is, in my view, a guaranteed payment in the Contract of a fixed amount.

• [25] Mr Brittain's contention that the Work Allowance is 'paid as recognition that Pilbara based employees had to get their own accommodation and get to site themselves rather than being flown in like FIFO workers', is unable to be sustained in light of BHP's submissions regarding relocation benefits provided on Mr Brittain's move to Port Hedland when accepting the Maintenance Planner role in October 2017,[12] and other benefits provided to Mr Brittain to compensate him for any disadvantage when residing in Port Hedland.[13]

• [26] Based on the abovementioned reasons, I have found that the Work Allowance forms part of Mr Brittain's 'earnings', as that term is understood for the purposes of the Act (see s 332(1)). It follows that Mr Brittain's earnings exceed the high income threshold and BHP's jurisdictional objection must be upheld.

• [27] Mr Brittain is a not a person protected from unfair dismissal and accordingly his application must be dismissed. An order[14] issues concurrently with this decision.

[1] Fair Work Act 2009 (Cth) s 382(b)(iii).

[2] [2018] FWCFB 1767 (Sam Technology).

[4] [1904] UKLawRpAC 31; [1904] AC 349..

[5] Sam Technology (n 2) [58], quoting Ibid 351.

[7] See, e.g.,, Paisley v Sandvik Mining [2013] FWC 783 [12]; Bogaers v OS ACPM Pty Ltd [2022] FWC 75 (Bogaers); Cross v Bechtel Construction (Australia) Pty Ltd [2015] FWC 3639 [18].

[8] [2015] FWC 4197 [6].

[9] [2014] FWC 6741 [10].

[12] Respondent's Outline of Submissions [24].

[14] PR741131.

Printed by authority of the Commonwealth Government Printer