Thomson and VoIP Pty Ltd [2005] NSWIRComm 17

[2005] NSWIRComm 17

Industrial Relations Commission (NSW)|1999-07-05|Before: Sams DP

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1999-07-05

Before

Sams DP

Source

Original judgment source is linked above.

Judgment (136 paragraphs)

[1]

CITATION: Thomson and VoIP Pty Ltd [2005] NSWIRComm 17

[2]

APPLICANT Matthew James Leonard Thomson PARTIES: RESPONDENT VoIP Pty Ltd

[3]

Jurisdiction - termination of employment - unfair dismissal application - application out of time - reason for, and length of delay - hardship for applicant and employer - sufficient reason - exercise of discretion - option to resign or be dismissed - legal advice sought - exemption from unfair dismissal provisions - whether applicant was covered by an industrial instrument - nature of work performed - whether applicant covered by employment contract and award free - respondent's business records - applicant's evidence - applicant's annual remuneration - whether remuneration exceeded threshold - salary, commission, car allowance, superannuation and non cash benefits - package of benefits - vehicle business usage - requirement of a vehicle to perform work - leased vehicle - leasing and running costs - contract of employment - tax returns - business records - applicant's evidence - whether superannuation part of remuneration - no Full Bench authority - principles considered. CATCHWORDS: Held, exercise of discretion unnecessary - no decision taken to terminate employment on the date alleged - unfair dismissal application filed within 21 days - respondent's evidence incomplete and unclear - no reliable evidence to rebut applicant's claim - work relevantly covered by an industrial instrument - employer cannot contract out of award - no evidence of change in duties - applicant's evidence preferred - respondent's evidentiary case weak - applicant's work covered by the terms of an industrial instrument - applicant not prevented from bringing an unfair dismissal claim - vehicle required for the job - actual costs of running vehicle greater than car allowance - 90% business usage accepted - business usage applied to car allowance - respondent's evidence incomplete - applicant's evidence accepted - no commission - superannuation part of remuneration - reasons developed in addition to comments of Full Bench - applicant's total remuneration below threshold -applicant's unfair dismissal claim competently before the Commission - jurisdictional challenge not sustained - further proceedings listed - parties directed to confer as to settlement.

[122]

109 It would seem, at least from the bolded sentence above, that the question of whether superannuation forms part of remuneration will, in most cases, be resolved in the affirmative. The Full Bench accepted in principle, the decision of Harrison DP in McBlane v National Transport Insurance Ltd (1997) 77 IR 185. It is necessary to refer to his Honour's decision. At p188, his Honour said: Mr Higgins argued that the full amount of superannuation should be included, relying on a decision of Deputy President Watson of the Australian Industrial Relations Commission in Cordon v G James Extrusion Company (1997) 74 IR 283 in which the matter was considered in the context of s170CC(3)(b) of the Workplace Relations Act 1996 (Cth) which states: the rate of remuneration applicable to the employee immediately before termination exceeds a rate specified, all worked out in a manner specified, in the regulations (a specified rate) as the means of describing and determining salary threshold above which award free employees are excluded from application for relief from unfair dismissal under the provisions of the Workplace Relations Act. In his decision Watson DP was required to consider a comparison between the term "relevant wages" determined by Wilcox CJ in Ardino v Count Financial Group Pty Ltd (1994) 1 IRCR 221; 57 IR 89 to be exclusive of superannuation, and the term "remuneration" as found in section 170CC. Watson DP concluded that the terms were not synonymous. At 287 of his decision Watson DP states: Remuneration is a broader concept, with superannuation in my view forming a part of that broader concept, whether by way of statutory obligations or contributions beyond those required by legislation. Mr Higgins further relied upon the judgment of his Honour Justice Marshall in Rigby v Technisearch Pty Ltd (1996) 67 IR 68 at 91 in the Industrial Relations Court of Australia, wherein his Honour concludes that: Superannuation is unquestionably, in my view, when paid into a fund by an employer are on behalf of an employee, part of the remuneration of the employee. The conclusions in these matters are equally sustainable within the Act. In this case superannuation is clearly and positively part of the contract of employment from the outset I include the full amount of $4,500 superannuation as part of the annual remuneration for the purpose of s 83(1)(b) of the Act.

[124]

111 Firstly, employer contributions to superannuation are a deferred benefit paid by the employer to a superannuation fund on behalf of the employee. Eventually the benefit either passes to the employee or his/her named beneficiary; not unlike any other accrued legislative benefit that might be paid to an employee in the event of the employee's death or disability. 112 Secondly, the original concept of compulsory employer contributions to superannuation arose from negotiations between the ACTU and the Federal Government in 1986 during what was known as the Accord years. It was said at that time, that the initial 3 per cent contribution was in lieu of an equivalent productivity wage increase which was otherwise due to all Australian workers. The June 1986 National Wage Case 301 CAR 611 referred to the ACTU/Commonwealth agreement at p639: We further mentioned that as part of the package sought by the ACTU and supported by the Commonwealth, union applications were made pursuant to Principle 2 of the 1983 Principles for the payment by employers of either a 4% increase in wages and salaries or a "3% wage equivalent" to approved superannuation schemes in favour of their employees. We discuss now the arguments pressed strongly by the ACTU and the Commonwealth and supported by a number of States, in favour of employer contribution to superannuation schemes as against a wage increase based on productivity. It was submitted by the ACTU and the Commonwealth that the claims to superannuation was in line with the 1985 Agreement regarding the implementation of the Accord over the following two years, which is as follows: Superannuation . It is agreed that superannuation should be extended and improved on an industry by industry, occupation by occupation or, in limited circumstances, company by company basis. The improvement should be offset against national productivity and be based on a 3 per cent wage equivalent. As can be seen from this passage, the employer's superannuation contribution (at least as far as the SGC legislation is concerned) was seen as part of a wage increase that would otherwise have been claimed, and likely granted, by the then Australian Conciliation and Arbitration Commission. 113 Thirdly, in another significant area of the Commission's jurisdiction - unfair contracts - employees invariably claim (and employers invariably accept) all superannuation contributions as a component of remuneration for any claims made under Pt 9 ch 1 of the Act. Orders made by the Commission under s106 invariably include superannuation in the calculation of remuneration. For reasons which hardly need stating, if superannuation was held to be not part of remuneration, then there would be, in my opinion, significant and serious implications for the Commission's unfair contract jurisdiction.