Zoran Lozevski v Goodman Fielder Consumer Foods Pty Ltd.

Mr I Neil of counsel with Mr P Moorhouse of counsel SOLICITORS: Haywards LEGAL REPRESENTATIVES: RESPONDENT: Mr M Bastick, Solicitor SOLICITORS: Freehills

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

27 October 2004 Matter No. IRC 4137 of 2004 Zoran Lozevski v Goodman Fielder Consumer Foods Pty Ltd. Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2004] NSWIRComm 314

1 On 15 July 2004, Zoran Lozevski filed a Summons for Relief under s 106 of the Industrial Relations Act 1996. Mr Lozevski had commenced employment with the respondent or its related companies in October 1994 and at the time of filing the Summons was still employed by the respondent. The Summons described how his role had changed following a re-structure and how, as a result, the role previously carried out by Mr Lozevski was now carried out by him and at least two other employees. He had been directed to assume another role but claimed that it was not comparable nor a suitable alternate role for a number of reasons, which were specified, but which do not require detailing at this point.

2 The unfairness identified by the Summons was that the respondent had failed to recognise that Mr Lozevski's role became redundant as a result of the re-structure; that the contract permitted the respondent to direct the assumption of an alternate role that was neither suitable nor comparable to the role previously performed by Mr Lozevski; and, that the contract permitted the respondent to avoid offering a redundancy payment in circumstances where there was a bona fide redundancy. Although not fully particularised in the Summons, the applicant seeks payment in relation to notice, payment in relation to redundancy and payment in relation to accrued annual leave and long service leave.

3 In the Summons for Relief the applicant claimed that his total remuneration package was $200,000 at the time of filing the Summons. On 27 July 2004, the respondent filed a Notice of Motion challenging the jurisdiction of the Court to deal with the application having regard to the terms of s 108A of the Act and seeking to have that issue dealt with as a preliminary question in the proceedings. Although both parties were urged to consider the benefits of conciliation as a primary step, their joint position was that the question of jurisdiction posed a significant impediment to conciliation and that it would be more efficient to decide the jurisdictional question raised by the Notice of Motion. It being the joint position of the parties that the preliminary issue should be dealt with before conciliation, the Court reluctantly agreed to that course.

4 For the respondent two affidavits sworn by the Human Resources Manager, Ms Therese O'Neill, were relied upon. Her affidavit treated the relevant period for the purposes of the Notice of Motion as the twelve months commencing 15 July 2003 and ending on 14 July 2004, although the applicant accepted that nothing turned on the twelve month period running from the monthly pay periods commencing in August 2003 and concluding in July 2004. It was common ground that the applicant's remuneration consisted of a fixed salary component and a variable component but during the relevant twelve month period the applicant's package comprised cash salary and superannuation contributions. Monthly pay reports showed twelve payments of $12,500 as "salary" totalling $150,000, but also showed consistent payments of $125.00 per month for a "superannuation allowance" and a constant "TRP allowance" (Total Remuneration Package) in the sum of $2,916.67. The total paid over the twelve month period for these three matters amounted to $186,500.04. In addition, $1,025 was contributed by the respondent on account of superannuation with those contributions totalling $13,500 for the twelve month period under consideration. The salary and superannuation elements combined showed that in the previous twelve months $200,000.04 had been paid to the applicant and received by him.

5 Ms O'Neill stated that the respondent had provided the applicant with a mobile telephone. An analysis of the telephone accounts showed that over the twelve month period the applicant had incurred mobile telephone costs of $1,012.53 of which $121.32 was attributed to the value of calls made on weekends or on public holidays and annual leave, $82.43 of calls were made to the applicant's wife's business telephone number, $6.97 of calls were made to "other known non-business related calls" and $33.53 worth of calls were made to the applicant's home number. The private use of the mobile telephone by the applicant was thereby calculated to total $122.93 in the twelve month period.

6 The applicant had also been provided with an American Express Corporate Credit Card and had been authorised to use the card to make purchases on the respondent's behalf and in accordance with its corporate credit card policy. Under that system, the applicant met the costs of all purchases made using the card but was reimbursed by the respondent for all such costs which were claimed as business related expenses. It was noted that as a cardholder the applicant became eligible to join the American Express Membership Rewards Programme at his own cost. Ms O'Neill had obtained access to the American Express website entitled "Membership Rewards Programmes Information" which indicated that a member of the Programme, such as the applicant, would have accrued one reward point for every dollar of expenditure on the card. During the twelve month period the applicant had used the card to purchase business related goods and services to the value of $1650.92 and Ms O'Neill believed that would have resulted in the applicant accruing 1650 reward points during the period. She had estimated that those points approximated to a dollar value of $16.50. According to her calculations, during the twelve month period, the applicant had been paid $186,500.04 as cash salary, $13,500 as superannuation contributions, had the use of a mobile telephone for private use to the amount of $122.93 and had the estimated value of the American Express Reward Points Programme of $16.50, resulting in a total remuneration of $200,139.47.

7 In a separate affidavit, Ms O'Neill annexed a letter from the respondent to the applicant dated 1 July 2003 advising that as a result of a market review his TRP remuneration package had been increased to $200,000 per annum effective from that same date. This increase was said to be inclusive of his October 2003 salary review.

8 In relation to parking, Ms O'Neill stated that the respondent leased approximately 250 car parking spaces from its landlord and these spaces were allocated by ballot to employees of the respondent. The applicant had been successful in previous ballots in obtaining one of these spaces. During the twelve month period the respondent had been charged $1423.00 per annum per car space. The respondent also paid GST on the car spaces. Under internal arrangements, the respondent charged its employees a fee for using the car parking spaces and during the twelve month period deductions totalling $1,438 had been made from the applicant's pre-taxation Total Remuneration Package. A copy of the sub-lease for the office accommodation was in evidence and indicated that the car spaces were identified in the sub-lease arrangements at a cost of $1,300 per annum for the relevant car spaces as at December 1999, although the sub-lease had a mechanism for rent review and increases.

9 The applicant's affidavit evidence was that in July 2003 his Total Remuneration Package was increased to $200,000 per annum effective from 1 July 2003. His offer of appointment had stated that "fixed remuneration" was referred to as the total remuneration package and that the TRP was the sum total of the components of cash salary, company superannuation contributions and any fringe benefits (such as car benefits) including fringe benefits tax. The applicant stated that during the twelve month period, his TRP comprised $186,500 salary and $13,500 superannuation, totalling $200,000.

10 The applicant stated that during the twelve month period, the respondent had deposited in his personal bank account $108,555.48, had paid into the superannuation fund on his behalf $13,500 and had paid the Australian Tax Office in relation to this salary $76,505, resulting in a total payment of $198,560.48. Pay slips produced by the applicant showed the respondent had deducted for parking a monthly amount of $118.75 for five months and $120.83 per month for seven months, such deductions totalling $1,439.56. These figures confirmed that during the relevant twelve month period the respondent paid the applicant $200,000.04.

11 The applicant said that the amount of salary that he could nominate as fringe benefits was known as the TRP allowance, and was $35,000. The allowance was paid as part of the monthly instalment of salary prior to the fifteenth day of the calendar month. The applicant noted that when the TRP allowance of $35,000 was divided into twelve monthly payments it resulted in a figure of $2,916.666 for each month which rounded to the nearest cent became $2916.67. Those monthly payments over a twelve month period resulted in a payment of $35,000.04. Thus the applicant identified the four cents paid above the amount contained in his contract of employment. His assertion that the extra four cents was the result of a rounding up exercise as described was not challenged in the respondent's evidence nor was the applicant cross-examined on this aspect. Indeed, in addresses, it was accepted by the respondent that the additional four cents was the result of a rounding up process in the calculation of monthly payments.

12 The applicant's present employment was the subject of a letter offering appointment dated 15 May 2002. That letter set out the role the applicant was to perform including his duties and the manner in which the remuneration would be divided between fixed remuneration and variable remuneration. The offer of employment dealt with superannuation, salary continuance, fringe benefits, car parking, annual and long service leave as well as policies regarding IT software and network usage. The letter of employment also dealt with termination and payroll arrangements and pointed out that the respondent had a number of policies which varied from time to time but which would apply to the applicant. The offer of employment made no reference to the provision of a mobile telephone or the terms on which a corporate credit card would be made available to the applicant.

13 When the applicant was provided with a mobile telephone, he was told that he was to be "contactable 24 hours a day". The applicant gave a brief description of his duties and how they required him to work outside normal hours, including evenings and at weekends from home, sometimes elsewhere outside the respondent's premises and while on annual leave. He was available to make and receive telephone calls outside normal hours and gave two particular examples of working outside normal hours to secure contracts for the respondent. The applicant was not aware of any policy or other guideline promulgated by the respondent dealing with his use or the use by employees generally of mobile telephones supplied by the respondent. Specifically, he had never been told that he was required to reimburse the respondent for any private telephone calls. The applicant stated that a number of telephone calls were made to make family arrangements to accommodate out of normal hours' work he was performing. The applicant was also able to identify a number of weekend calls and calls made on either on public holidays or annual leave which were directly related to his work. The offer of appointment had made it clear that part of the fixed remuneration was fringe benefits tax. While his salary included an amount for a motor vehicle and associated fringe benefit tax, the applicant stated that he had never received any fringe benefit or paid any fringe benefit tax in relation to the personal use of the company mobile telephone or the use of a corporate credit card. 14 The corporate credit card had been supplied to the applicant when he commenced employment in 1994 and he was authorised to incur business related expenses, which the respondent paid directly to American Express. In July 2002, a new management system was introduced together with a new American Express card and under this new system liability for the card was transferred to the applicant. The applicant linked the corporate credit card to his personal Gold American Express Card and paid for the Membership Rewards Programme to link the corporate credit card to his personal card. It was the applicant's understanding that, by making that payment himself, he acquired the rewards points associated with the use of the corporate credit card and he would not have acquired the points if he had not made that payment. This, he understood, reflected the respondent's credit card policy. Nevertheless, the applicant had not redeemed any of the points accrued from the corporate credit card nor had he received any monetary amount referrable to accrued points.

15 In relation to car parking, the applicant agreed that he had been successful in a ballot over the previous four years to use car parking at his place of employment with the respondent. With his agreement, the cost nominated by the respondent for the use of the car parking space had been deducted from his salary. For the financial year ending 30 June 2004 the reduction was $1,437.48: he then asserted that as a result his taxable income was reduced to $185,062.56. The nearest commercial car parking facility was at Macquarie University which cost considerably less than parking at the respondent's parking space. The applicant also noted that the parking space provided to him was located on the respondent's business premises and not on the premises of a third party. He was unaware of the respondent making any payment on his behalf for the parking space he occupied and he asserted that the respondent did not incur any cost in relation to the provision of a car parking space. There were a number of days when the applicant was absent from the office on leave (estimated to be a total of 40 days in the twelve month period) when the car parking space was not used. The applicant calculated that this period equated to $228.40 in a "potential foregone benefit".

16 In oral evidence, Ms O'Neill accepted that the applicant's primary use of the mobile telephone was in the course of his employment with the respondent. In relation to the credit card points accrued by the applicant, Ms O 'Neill said that the value of one cent per reward point was something she had obtained from the American Express website.

17 In cross-examination, Mr Lozevski agreed that his total remuneration package since 1 July 2003 had been $200,000 per annum and that his total remuneration package had been reduced to reflect the amount attributable to the provision of the car parking space by the respondent. While agreeing he used his mobile telephone for some personal calls, the applicant could not recall all of the occasions he used the mobile telephone for that purpose. However, there were a number of occasions he recalled when he used the telephone for personal calls on weekends while he was conducting negotiations with a supplier on behalf of the respondent.

SUBMISSIONS 18 The provisions of s 108A of the Act which are immediately relevant are as follows: SECTION 108A - EMPLOYMENT CONTRACTS IN RESPECT OF WHICH APPLICATIONS CANNOT BE MADE ` 108A(1) [ Remuneration exceeds remuneration cap]. An application cannot be made for an order under this Division if the application relates to a contract of employment under which: (a) a remuneration package that exceeds the remuneration cap is paid or received (or is payable or receivable) during the period of 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination). ...

108A(3) [ Definitions] In this section: contract of employment means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract. employment benefit means a benefit provided to an employee at the cost of his or her employer (being a benefit of a private nature) and, without limitation, includes: (a) contributions payable to a superannuation scheme by an employer in respect of the employee, including any liability of that employer to make any such contributions or to pay costs associated with that scheme, or (b) the provision by an employer of a motor vehicle for private use by the employer, or (c) any other benefit prescribed by the regulations for the purposes of this definition. monetary remuneration includes any performance-related bonus or incentive payment. remuneration cap means: (a) $200,000, except as provided by paragraph (b), or (b) any greater amount prescribed by the regulations (being a regulation that increases the amount by reference to increases in the amount referred to in section 83(1)(b)). remuneration package means the total value of monetary remuneration and employment benefits payable or receivable under a contract of employment.

19 The first matter drawn to attention by the respondent was that the definition of "contract of employment" extended beyond the formal contract and encompassed arrangements and a related condition or collateral arrangement in respect of such a contract. By reference to Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551, the term "arrangement" should be given a broad meaning: it was capable of including bargains that were not otherwise enforceable and agreements manifested only through conduct.

20 By s 108A, Parliament had imposed a limit on the Commission's jurisdiction in "relatively peremptory terms" in the sense that an application "cannot be made" in circumstances where the remuneration cap had been exceeded (Commander Australia Limited v Kerr [2004] NSWIRComm 74 at [30]). By using this direct language, the legislature disclosed an intention to prescribe the making of applications under s 106 "in a way which is not capable of ready avoidance or evasion" (Commander at [34]). The effect of the amendment was that the Commission had no discretion to allow an application to be made in circumstances where an applicant's remuneration package exceeds the remuneration cap, even if only by a small amount. The exercise of a purported discretion would impermissibly allow for ready avoidance or evasion of the legislature's intention.

21 In this case, some monetary value must be attributed to the benefits which the applicant received in the form of the personal use of a mobile telephone and the accrual of credit card reward points. Given the amount of salary and superannuation benefits received by the applicant, any value attributed to the mobile telephone and the credit card reward points had to place the application outside the jurisdiction of the Commission.

22 There appeared to be no dispute that the cash salary payments actually paid to the applicant amounted to $185,500.04 with superannuation payments of $13,500 giving a total monetary remuneration of $200,000.04. The respondent relied on this amount as exceeding the salary cap.

23 In addition, the respondent, at its expense, had met all costs associated with the applicant's use of a mobile telephone, including the cost of the applicant's private telephone calls being calls unrelated to his employment. The applicant's private mobile telephone calls were a benefit of a personal nature and also a benefit provided solely to the applicant. It was significant that, in dealing with unfair dismissal applications under s 84, the Commission had held that "annual remuneration" included the benefit of a mobile telephone where it was provided to an employee in circumstances where the employer would pay for the employee's use of the telephone for personal purposes (Shead v Summit Western Pty Ltd (1998) 81 IR 347; Schmidt v Piano Holdings Pty Ltd (unreported, Sams DP, 5 February 1999). While the statutory context was different, the reasoning in those cases was applicable in the present matter. Indeed, the meaning of "remuneration" in s 108A was, on its face, broader than the term "annual remuneration" in s 83, as a result of the non-exhaustive definition of "employment benefit" in s 108A (see Commander at [40]).

24 The respondent accepted that the provision of the mobile telephone was not expressly dealt with in the applicant's contract of employment. The provision of the mobile telephone and its use for the making of personal calls was part of an "arrangement, related condition or collateral arrangement" which itself was part of the applicant's employment contract. The conduct of the parties demonstrated that the benefit arose as an incident of the applicant's employment and there was no other reason for the provision of this benefit.

25 Another employment benefit provided to the applicant by the respondent for the applicant's personal use was the corporate American Express card. As a holder of this credit card the applicant was entitled to become, and did become, a member of the American Express Membership Rewards Programme and earned reward points every time he made a purchase using the card. The cost of all business related purchases made using this card were met by the respondent.

26 The holding of credit card reward points has been held by the Commission to be part of "annual remuneration" for the purposes of s 83 of the Act. In Robert Jackson v National Aboriginal Islander Skills Development Association (NAISDA) Inc [2003] NSWIRComm 118, Sams DP held that the benefits obtained from reward points were provided by an employer's expenditure in the sense that, in order for reward points to be accrued by the employee, the employer must make purchases with the credit card: the benefits were of a private nature, given that only the employee could redeem the reward points and the reward points could be redeemed even after the employee ceased to work for the employer. The reward points were also held to be part of the employee's contractual remuneration despite the fact that this benefit was not expressly included in the employee's written terms of employment. The written terms of the employment were held not to be an exhaustive statement of the terms of employment and, further, the reward points were to be included as part of "annual remuneration" despite the difficulty in determining their objective value.

27 For the applicant, it was submitted that, properly approached his remuneration package paid or received or payable or receivable under his contract with the respondent during the period of twelve months immediately before the Summons was filed was less than $200,000, or at most, equal to $200,000. In either case, the remuneration package did not exceed the remuneration cap such that the applicant was prevented from bringing his application.

28 Section 108A directed attention to any monetary remuneration or employment benefit being payable or receivable under the contract of employment in order to constitute part of a remuneration package. The words "payable" and "receivable" referred to an amount or benefit which was owed or readily able to be given and received, or an amount that must be paid in order to discharge a liability (see Commander at [47] following Carlton Brewery Ltd v Federal Commissioner of Taxation (1947) 73 CLR 446 especially at 455). This meant that no monetary remuneration or employment benefit would be part of the employee's remuneration package for the purposes of s 108A unless, under the contract, there was a liability in the employer to pay or give the remuneration benefit, and a concomitant entitlement in the employee to be paid or receive the remuneration or benefit. The respondent's suggestion, that the extended definition of "contract of employment" in s 108A(3) meant that remuneration or benefits that were not enforceable were brought within s 108A, was wrong. The words "payable" and "receivable" in the context in which they are used in s 108A(1) and s 108A(3) were words of limitation and limit what might otherwise fall within the extended definition of contract of employment.

29 The use of the word "under" in the definition of "remuneration package" in s 108A(3), (which complements and must be read together with the words "under which" in s 108A(1)), meant that attention was thereby directed to the requirement that the contract of employment must be the source of the remuneration or benefit and the contract of employment must lead directly to the payment or receipt of the remuneration or benefit such that a merely indirect, remote or consequential relationship would not be sufficient - (Harris v Hammon (No 2) (1995) 59 IR 232 at 237).

30 As to "employment benefits", only those benefits which were of a private nature and were provided to the employee at the "cost of the employer" could constitute part of a remuneration package for the purposes of s 108A. The use of the expression "private nature" was peculiar: the context suggesting that the word "private" was used as an antonym of "public" could not be what was intended. The more likely intended meaning was that the term denotes something that belongs to or is the property of an employee: that is, the benefit must have a proprietary nature.

31 Approached in this way, any remuneration or benefit which is paid or given to an employee other than in discharge or satisfaction of an obligation which is a direct consequence of a contract of employment (such as a gift or anything else that is paid or given as a matter of generosity, inadvertence or expediency) or any remuneration or benefit which is not of a private nature and/or provided to the employee at the employer's cost, is not part of an employee's "remuneration package" for the purposes of s 108A.

32 The starting point is to establish the terms of the applicant's contract of employment with the respondent. The letters in evidence established the monetary value of the contract and a number of terms of the contract. There was also an agreement between the applicant and the respondent by which the respondent allowed the applicant to park his car in a space on its premises in consideration for which the cash salary under the contract was reduced. This agreement was constituted by the conduct of the parties and was either a variation of a written contract or a contract that was collateral to the written contract in that it modified the obligations prescribed by the written contract.

33 The letter of offer constituting the contract of employment provided for both fixed remuneration and variable remuneration. In this case only the fixed remuneration was relevant as the applicant was not paid and did not receive any variable remuneration during the twelve month period. The respondent did not suggest that any variable remuneration was payable to or receivable by the applicant during the relevant twelve month period. With effect from 1 July 2003, the applicant's total remuneration package was $200,000 per annum. During the twelve months prior to the filing of the Summons, by operation of the variation or collateral contract, the cash salary component of the applicant's total remuneration package was reduced on account of car parking by a total of $1,439.56. Thus, the contract of employment, either alone or as modified by the collateral contract, identified the amount of monetary remuneration that the respondent was liable to pay under the contract and which the applicant was entitled under the contract to be paid or receive. The amount of monetary remuneration payable or receivable during the relevant period for the purposes of s 108A was therefore $200,000 less $1,439.56, giving a figure of $198,560.44. Further, the evidence demonstrated that during the relevant period the applicant actually received $108,555.48 net salary paid into his bank account, superannuation contributions of $13,500 and remitted tax of $76,505, being a total of $198,560.48.

34 It was submitted for the applicant that the respondent's approach was incorrect in treating the use of the car parking space as an "employment benefit". The use of the car parking space under the car parking agreement did not have the proprietary quality that was necessary to meet the test of being of a "private nature", and there was no evidence that it was provided at a cost to the respondent. On its face, the car parking agreement was simply a commercial transaction by which the respondent made a car parking space available to certain employees in return for a reduction in "cash salary". It was also submitted that the respondent was not entitled to simply assume that the value to be given to the car parking space was equivalent to the amount by which the applicant's "cash salary" was reduced. The amount of that reduction was either entirely arbitrary on the evidence and/or substantially greater than an objective comparison with nearby commercial car parking costs that would suggest its real value. Further, the car parking cost should be reduced on account of the days when the applicant did not use it.

35 The additional four cents paid by the respondent, and relied upon by the respondent as preventing the Summons from being dealt with, resulted from a rounding up of one of the components of the applicant's monthly salary. The respondent unilaterally made that payment and it was one made as a consequence of an administrative procedure also unilaterally applied apparently for its own purposes. The respondent was not liable under its contract of employment with the applicant to pay him any part of the extra four cents nor was the applicant entitled under the contract to be paid any part of the extra four cents. In those circumstances, the contract was not the source of the payment and the contract did not lead directly to the payment. At most, the extra four cents had only an indirect, remote or consequential relationship with the contract. The extra four cents did not, therefore, form part of the applicant's "remuneration package" for the purposes of s 108A.

36 If effect were to be given for the additional four cents actually paid, that amount would not be sufficient to visit on the applicant the drastic consequences of s 108A. The four cents, in the context of s 108A, is a trifle with which the law would not be concerned and should not be taken into account for the purposes of s 108A (Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 142 ALR 322 at 324-327). Further, the "remuneration cap" was fixed at the whole dollar amount of $200,000 and the amount of $200,000.04 is equivalent to and does not exceed the whole dollar amount of the cap of $200,000.

37 In relation to the respondent's claim that $122.93 of telephone calls were made for private purposes on the company supplied mobile telephone, the applicant submitted that such payments made by the respondent could not be characterised as an "employment benefit". Firstly, the telephone calls had sufficient relationship or connection with the applicant's employment to result in the payments falling outside the description of being of a "private nature". Secondly, the payments made by the respondent in this respect were not directly related to the contract of employment between the respondent and the applicant. The mobile telephone use was not referred to in the written contract nor was it the subject of any other agreement or even a rule or policy having contractual significance.

38 The payments for so-called "personal calls" made on the mobile telephone were said by the respondent to be a "related condition" or a "collateral arrangement" forming part of the applicant's contract of employment as defined in s 108A. The applicant submitted that there was nothing in the evidence suggesting that the respondent's conduct in this regard contained the element of mutuality which was a necessary feature of a condition or arrangement (Legal and General Assurance Society Ltd v Stock (1993) 49 IR 464; Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551 at 560-1; AOS Group Australia Pty Ltd v Arrogante and ors [2004] NSWIRComm 80 at [15]). Even if the respondent's conduct was able to establish a related condition or collateral arrangement, there was no basis for concluding that the payments were made "under such condition or arrangement": even in the case of a related condition or collateral arrangement there must still be the elements of liability and entitlement on which s 108A(1) and s 108A(3) insist. There was no evidence supporting a finding that the respondent's conduct gave rise to a liability to pay for personal calls or an entitlement in the applicant to be paid for those calls. The fact of payment by the respondent was equally consistent with the view that it did so as a matter of policy or administration, deemed to be expedient, as it was with the view that it felt bound to do so (see Young v Canadian Northern Railway Co [1931] AC 83 at 88-89).

39 The respondent did not consider the payment of the applicant's personal mobile telephone calls to be a fringe benefit for taxation purposes. That fact demonstrated that the respondent had never categorised this alleged benefit as a benefit provided to the applicant in connection with his employment.

40 There were policy reasons why any personal mobile telephone costs would not be included as a component of the applicant's "remuneration package" for the purposes of s 108A. That approach would lead to a wide range of incidental personal benefits regularly provided in the employment context being considered for the purposes of this provision of the Act. It was commonplace for an employer to provide tea, coffee, drinking water, washing and toilet facilities in the desire to treat employees decently rather than as a result of any requirement to meet a contractual obligation. The legislature could not have intended that these matters would be included as part of the "remuneration package", not least because the need to have regard to such incidental and extra-contractual benefits would increase the difficulty of determining an employee's "remuneration package" for the purposes of applying s 108A thus reducing the certainty available to litigants and potential litigants. These factors were highlighted by the Full Bench in Commander at [49].

41 When the analysis descended into these matters, the Commission would then need to have regard, as an offsetting factor, to incidental business use of private facilities made by an employee for the benefit of the employer. In this case, the applicant's evidence disclosed that he used his home telephone and email for business purposes on some occasions - there was no suggestion in the evidence that this use was recompensed by the respondent or even claimed by the applicant. 42 The respondent had then relied on decisions made in relation to applications made under the unfair dismissal provisions of the Act. It was submitted that these authorities were of no real assistance in determining the issue raised by the respondent's Notice of Motion because they concerned a materially different statutory scheme which did not replicate the definitions of "remuneration package" and "employment benefit" as defined in s 108A. It was significant that in Commander at paragraph [49] the Full Court found little assistance in this approach.

43 The respondent's submission that the notional value of reward points obtained by the applicant as a result of the use of his corporate American Express Card should be regarded as part of the applicant's "remuneration package", should be rejected. There was nothing in the letter of offer to the applicant which provided him with an entitlement to the reward points: the respondent's corporate credit card policy left it up to individual employees as to whether they would join any reward scheme associated with a corporate credit card issued to the employee. In this case the applicant had arranged for and paid for his corporate credit card to be linked to his existing American Express Reward Programme. His corporate American Express credit card was issued in his name and, although the respondent reimbursed him for business expenses paid using the card, the applicant remained liable for any additional amounts including interest payable in connection with the operation of the card.

44 It could not legitimately be said that the reward points were a benefit provided at the cost of the employer such as to come within the definition of "employment benefit". The business expenses reimbursed to the applicant did not represent a cost to the respondent in connection with an alleged "employment benefit" - those expenses were ordinary costs of operating the respondent's business which would be incurred regardless of whether they were paid using the applicant's corporate credit card or using some other method of payment. Those payments did not have a direct or sufficient connection with the alleged benefit received by the applicant.

45 The credit card reward points were not a benefit payable or receivable under the applicant's contract of employment as required by the definition of "remuneration package". The reward points were received by the applicant as a result of and under his contract with American Express and were not received as a consequence of the applicant's contract of employment. The applicant had no enforceable entitlement to the reward points as a consequence of that employment contract.

46 It was significant that the respondent did not provide any basis for attributing a value to the applicant's reward points. On the evidence, it was not open for the respondent to derive a value directly from some benefit obtained by the applicant during the relevant period as the applicant had not redeemed any of his accrued points during that period. 47 The applicant submitted that guidance was available from the manner in which frequent flyer reward points available from credit card use had been treated under taxation legislation. In Payne v Commissioner of Taxation (1996) 66 FCR 299, Foster J held that the value of flight rewards received by Ms Payne as the result of employer paid travel did not constitute assessable income for the purposes of the Income Tax Assessment Act 1936. The Commissioner of Taxation had subsequently accepted that approach in Taxation Ruling 1999/6.

48 In Payne, the applicant had joined the rewards scheme on her own initiative and by payment from her own funds. The Court was required to determine whether the reward points constituted a "benefit ... given or granted ... in respect of, or for or in relation directly to, any employment of or service rendered by (the applicant)". The Taxation Ruling noted that the Federal Court decided that if there was a benefit given it was given as a result of the personal contract between the taxpayer and the consumer loyalty programme provider, notwithstanding that the benefit arose as a consequence of the employment. The Federal Court found that the Act did not apply as points were not earned in the course of the employment relationship but because of the relationship between the passenger and the airline, a relationship that was not productive of income for the passenger. The ruling went on to note that the fact that an employer may have a policy allowing employees to use points acquired from employer paid expenditure for private purposes was not, of itself, enough to demonstrate that an employee would receive flight rewards as it was up to the employee to determine if they would receive flight rewards by becoming a member of a relevant scheme. In any event the flight rewards had to be received in respect of employment and Foster J had found that not to be the case.

49 The respondent's reliance on Robert Jackson v National Aboriginal Islanders Skills Development Association, a decision of Sams DP, dealt with the statutory term "annual remuneration". It was submitted by the applicant that authorities dealing with the meaning of remuneration in that context were of limited assistance in determining the meaning of "remuneration package" and "employment benefit" for the purposes of s 108A. Further, the facts addressed in Jackson were materially different from the present case: in Jackson, the Deputy President found that the parties were both aware that Mr Jackson received the reward points as a benefit of his employment and Mr Jackson considered the reward points to be an integral and valuable part of his employment arrangements and protested about a suggestion that the corporate credit card be transferred to another employee. That was a different factual situation to the present case.

DELIBERATION (i) The Statutory Scheme 50 Although the decision of the Full Bench of the Court in Commander made reference to the Second Reading Speech concerning the Industrial Relations Amendment (Unfair Contracts) Bill which introduced, inter alia, s 108A, for present purposes it is instructive to return to the parliamentary debate. On 11 April 2002 the Bill had its Second Reading. Attention was drawn to the fact that the unfair contracts jurisdiction had been "utilised overwhelmingly as a means of obtaining compensation in connection with the termination of employment of highly paid executives". It was then noted that following the decision in Canizales v Microscoft Corp. and ors (2000) 99 IR 425 there was a significant increase in the number of applications lodged, leading to the conclusion that the unfair contracts provisions were being regularly invoked by persons who were neither being exploited nor treated ungenerously. The Second Reading Speech then continued: By narrowing the application of the Unfair Contracts provisions of the Industrial Relations Act 1996, greater certainty will be introduced into their operation, and the more extravagant and speculative claims will be prevented. The Industrial Relations Amendment (Unfair Contracts) Bill 2002 will introduce the following limitations on the operation of the existing Unfair Contracts provisions. An employee earning an annual remuneration package in excess of $200,000 will not be able to make an application under the Unfair Contracts provisions. "Remuneration package" will be defined to mean the total value of the monetary remuneration and employment benefits that are payable or receivable under a contract of employment. Bonuses and other performance-related or incentive payments will be included in the meaning of monetary remuneration. ' employment benefits' will mean all those benefits of a private nature that are provided to an employee at the cost of his or her employer. The Bill spells out that this includes superannuation contributions and motor vehicles, but makes it clear that this is not an exhaustive list. The Bill also empowers the making of regulations to prescribe any new types of employment benefits that might emerge. ... The Bill deals in a simple and direct way with the phenomena of highly paid employees who would not be able to make an unfair dismissal claim using the Unfair Contract provisions as an avenue to excessive enrichment when their relationship with their employer comes to an end. These highly paid employees will be excluded from this jurisdiction. Any contractual claims they have will still be able to be pursued in the common law courts.

51 In the Committee stage, a number of amendments were proposed including an amendment to omit the reference to "remuneration package" and to refer instead to "remuneration". The Minister, in the Legislative Council, rejected that amendment stating that the main thrust of the Bill was to target the remuneration package of an employee which was measured by the amount of the employee's salary plus the monetary value of any employment benefits payable. The employment benefits could include commission, bonuses, the personal non-business use of a car or any other fringe benefit the employee receives. The Bill as drafted narrowed the application of the unfair contracts provision under the Industrial Relations Act 1996 "giving greater certainty to employers, and highly paid executives who will no longer be able to bring extravagant and speculative claims" to the Commission. The word "remuneration" was inadequate given that the Commission in Shead had held that the word "remuneration", in relation to unfair contract provisions, should be given its ordinary meaning, that is, an employee's total package as a reward for work performed. The proposed definition provided in the Bill gave effect to the definition in Shead by making it clear exactly what is meant by "remuneration package", and indicated without doubt that it also included the value of any non-salary components of an employee's package. The Minister continued: This means that salary packaging arrangements will not be able to purposely include or exclude employees from the jurisdiction. In effect, they will be irrelevant in determining eligibility. What will be relevant is personal benefit received by the employee for the work that he or she performed for his or her employer. The remuneration package is therefore the amount of the employee's salary plus the monetary value of any employment benefits payable. This may include commission, bonuses, the personal non-business use of a car or any other fringe benefit the employee receives.

52 The effect of the 2002 amendments has now been the subject of consideration by a Full Bench of the Court in three matters, although none of those cases directly deals with the particular issues raised by the present Notice of Motion. In Crowe v UCS Developments Pty Ltd (2003) 130 IR 266 at 275 [34] it was stated that the intention of the amending Act in relevant respects was "reasonably plain on its face". It was intended that applications seeking orders directed towards contracts of certain identified types and satisfying certain conditions should be removed from the scope of the unfair contracts provisions of the Act; namely, "those applications which seek to vary or avoid contracts (as defined) providing a remuneration package that exceeds an identified remuneration cap ... ".

53 In Aveling v UBS Capital Markets Australia Holdings Ltd [2004] NSWIRComm 261 the Full Bench of the Court looked to the 2002 amending Act and its explanatory memorandum and stated at [33]: Once analysed as it has been above, the terms of s 108A starkly show that it was intended to bring about significant changes and limits to the Court's jurisdiction pursuant to s 106 from a particular time. The particular time being the date of s 108A's operation .

54 In between those judgments, a Full Bench of the Court delivered its reasons for judgment in Commander. Again, the Court dealt with the statutory framework and the changes introduced to Part 9, Chapter 2 of the Act by the 2002 amending Act. Having regard to the 2002 amendments the Full Bench stated: 30. It may be observed that the legislature has imposed a particular limit on the jurisdiction of the Commission in relation to s 106 proceedings and has done so in, relatively speaking, peremptory terms. Significantly, the limitation is expressed not in respect of the capacity or power of the Commission to hear, or to hear and determine, or to make orders in, proceedings under s 106. Rather the limitation is specified on the basis that applications of a certain class or of certain classes "cannot be made"; that is, applications cannot be made which seek orders under the relevant Division of the statute; that is, relevantly, applications for orders under s 106.

31. The prohibited class of applications includes those where the application relates to a contract of employment where (specific to the present proceedings) the contract of employment is one under which "… a remuneration package that exceeds the remuneration cap is paid or received (or is payable or receivable) during the period of 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination). 32. The question that then arises is the nature or character of a contract of the prescribed class. The key phrases or expressions are "contract of employment", "remuneration package", "monthly remuneration" and "remuneration cap". The phrase "remuneration cap" does not raise any present issue since the way in which it is defined provides sufficient precision for present purposes. The contentious expressions are those defined as "contract of employment", "monthly remuneration" and "remuneration package". The question then is: is the contract the subject of the proceedings one which, during the relevant period, has a remuneration package, that is paid or received or that is payable or receivable, which exceeds the remuneration cap? Because of the interlocking nature of the relevant definitions, conceptually the enquiry commences with the definition of "remuneration package" which is defined as meaning the total value of the "monetary remuneration" and the "employment benefits" payable or receivable under a contract of employment.

33. The expression "monetary remuneration" is, in turn, defined to include any performance related bonus or incentive payment and the expression "employment benefits" is relevantly defined to mean a benefit provided to an employee at the cost of the employer, provided it is a benefit of a private nature. These benefits, without limitation to the breadth of the words so defined, include superannuation contributions made by an employer; provision of a motor vehicle for private use (presumably this means to the extent that the vehicle is provided for private use) and any other prescribed benefit.

34. The next aspect to be noticed is the way in which the remuneration package is related to the contract of employment. The way in which this relationship is framed by the statute or framed in the statute is significant. The words used involve a degree of repetition. It seems to us that the intention of the legislature in using language which is both broad and somewhat circular is to emphasise the already plain intention to cover a relevant field and to prescribe, with some particularity, and in a way which is not capable of ready avoidance or evasion, prohibitions on the making of applications under s 106 .

55 After referring to the judgment in Crowe and extracts from the Second Reading Speech (which are contained within the extracts set out earlier in this judgment), the Full Bench proceeded to deal with the concepts of "paid", "received", "payable" and "receivable". In this regard, the Full Bench said: [47] The ordinary meaning of "paid" and "received" refers to the amount or sum in question having actually been paid and accepted, rather than an entitlement to receive at some future time. Similarly, the ordinary meaning of "payable" and "receivable" refers that the amount in question being owed or already able to be given and received or accepted. In Carlton Brewery Limited v Federal Commissioner of Taxation (1947) 73 CLR 446 the majority of the High Court held that the words "paid" or "payable" in taxation legislation must refer to a payment that has in fact been made or one that must be made to discharge a liability (see especially per Dixon J at 455) [48] The words of s 108A(1)(a) are used disjunctively. The approach of the "draftsperson" was to use the word 'or' to separate the words 'paid' and 'payable' and then to enclose in brackets the words 'payable' and 'receivable', with the word 'or' inserted again between those words. In our view, each of the words 'paid', 'received', 'payable' and 'receivable' is to be treated for the purposes of the construction of s 108A as giving rise to separate and distinct tests to be applied in determining whether a remuneration package exceeds the remuneration cap. [49] The respondent referred to the decision of the Full Bench of the Commission in Austeck Pty Ltd v Atsalos. The judgment in Austeck dealt with the construction of s 83 of the Act and in particular the meaning of the term "annual remuneration" as found in s 83(1)(b). Although we regard the judgment in that matter as correctly decided, it is of limited assistance in the present case since it was concerned with the different statutory scheme involved in the consideration of the expression of "annual remuneration" in s 83(1)(b). The difference in the terms and structure of the statutory criteria in s 108A and s 83(1)(b) is sufficiently illustrated by para [45] of the Full Bench decision in Austek which was as follows: [45] We consider that a reference to "annual remuneration", in the literal sense of that expression, is at odds with an interpretation that favours looking at what the applicant earned in the 12 months preceding termination of employment. We consider that the expression "annual remuneration" should be construed as the rate of remuneration fixed by the contract of employment at the point of termination. The word 'annual', in the context in which it appears, conditions the word remuneration so that the expression 'annual remuneration' is given the meaning - the rate actually fixed as the contractual yearly remuneration. ...

[52] We consider that, in light of the structure and effect of s 108A and its surrounding provisions, the intention of the legislature was to include all amounts paid or received during the period of 12 months immediately before the termination. Similarly, in some cases the period to which a bonus payment relates may not be specified, with the result that the parties would have great difficulty applying the interpretation accepted by her Honour. In our view, parties need to be able to determine with objective certainty whether an application may be brought. The construction proposed by the appellant gives litigants and potential litigants greater certainty regarding the application of the section.

56 The result in the present case will therefore be governed by these general principles laid down by Full Benches of this Court in recent times. With the exception of the extra four cents actually paid to the applicant over and above the contracted rate, the value of private calls made on the mobile telephone and the value of the credit card reward points raise the issue of whether they are employment benefits of a private nature. Such benefits are to be analysed to establish whether or not they form part of the remuneration package which is defined to mean the total value of monetary remuneration and employment benefits payable or receivable under a contract of employment. (ii) The four cent question 57 I deal firstly with the amount of four cents paid to the applicant by the respondent over the $200,000 sum contracted between the parties but relied upon by the respondent in these proceedings as bringing s 108A into operation. There is no issue that the four cents is the result of a "rounding up" exercise administratively and unilaterally adopted by the respondent. It was not contested by the respondent that the applicant had no right to the four cents or that the respondent was not bound to pay the four cents to the applicant. Unlike the issues of the mobile telephone and the credit card reward points there is no suggestion that the four cents here is paid as part of any arrangement, related condition or collateral arrangement. Allowing for a legislative intention that a statutory cap is to apply in circumstances where the Court is left with no discretion, I am, nevertheless, satisfied that the principle covered by the maxim de minimis non curat lex (that is, the law does not concern itself with trifling matters) applies. In Bennion's "Statutory Interpretation", 4th Ed the learned author states: It is essential to the working of a legal system that it should adopt the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters). There are a number of reasons for this. Litigious persons and unnecessary litigation must be discouraged: boni judicis est lites dirimere (the good judge prevents litigation). Time must not be wasted. Costs must be kept down. The dignity of the law must be preserved. Parliament is presumed to have regard to all these matters, and by implication to intend that its enactments shall not apply in a de minimis case. It is excepted from their operation, as if excluded by an express proviso. ( at 958). In dealing with fractions of a day, it is stated that the di minimus principle looks to the substance: a lease dated 26 May was expressed to run for three years "from henceforth" and was delivered at 4.00 pm on 20 June. It was held the time of day of delivery was immaterial, "for the law in this computation doth reject all fractions and divisions of a day for the uncertainty, which is always the mother of confusion and contention". ( Clayton's Case (1585) 5 Co Rep 1a, 1b) (at 960).

58 In Farnell's case, Hill J, dealing with certain provisions of the Customs Tariff Act 1987 (Cth), held that in an appropriate case the maxim de minimis non curat lex will be applied as a rule of interpretation with the applicability or otherwise of the maxim depending on the context in which it falls to be considered. In that case, his Honour noted that an earlier edition of Bennion's "Statutory Interpretation" spoke of the general rule that an enactment by implication imports the principle of the maxim and that similarly, Halsbury's Laws of England 4th Ed, Volume 44(1) stated that unless the contrary intention appears, an enactment by implication imports the principle of legal policy expressed in the maxim de minimis non curat lex: so, if an enactment is expressed or applied to matters of a certain description, it will not apply where the description is satisfied only to a very small extent. His Honour noted that the principle had been applied, either expressly or by implication, in a wide variety of situations where a trivial failure to comply with a specific condition was ignored. His Honour noted that in Wood v Carwardine [1923] 2 KB 185 the statutory issue was whether a landlord, who supplied water to a tenant through a pipe and caused a caretaker to deliver letters, messages and parcels, received rent which included "attendance". It was held that the de minimus rule applied with the result that the delivery of letters, parcels, etc, although constituting "attendance", was such a trivial part of the duties of a caretaker that it could be ignored and thus it was held the rent did not include "attendance". His Honour noted (at 326) that the most recent example of the application of the de minimis principle in Australia by a superior court was to be found in the decision of Smith J of the Supreme Court of Victoria in Pinho v Andre (20 December 1994, unreported) where it was held that a debt had been paid for the purposes of s 52(3) of the Supreme Court Act 1986 (Vic) although $7.63 was still owing to the bank. Hill J expressed the view that the various examples he had cited illustrated two principles: the first was that in an appropriate case the maxim will be applied as a rule of interpretation; the second being that the applicability or otherwise of the maxim depends upon the context in which it falls to be considered. Only recently the New South Wales Court of Appeal in Mayne Nickless Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 359 applied the de minimus principle in declining to exercise its discretion to issue prohibition where the only claim based on unfairness in s 106 proceedings arising from a breach of contract concerned a sum of $135.

59 In this case, the applicant had no entitlement to the four cents paid by the respondent. The respondent was not obliged to pay the four cents and the applicant had no right to demand payment. It was not "owed" nor was it a "liability", as referred to in Carlton Brewery Ltd v Federal Commissioner of Taxation, cited with approval by the Full Bench in Commander. The respondent could simply return the four cents and so, strictly speaking, bring himself within the $200,000 cap. If he did so, I can see no valid objection which could be raised by the respondent. There are also policy considerations. Although the amount here is trifling, it leaves the door open to respondents who wish to avoid the jurisdiction to make small or even substantial ex gratia payments especially in a period during which they have formed the intention to terminate the employment of the recipient of this gratuity. In my view, the 2002 amendments look to the actual situation and are designed to avoid subterfuges. The real position in this case was that the contract required the payment of $200,000 per annum: the de minimis principle is applicable in relation to the four cents in the way in which that extra four cent payment was made in this case.

(iii) Whether the mobile telephone and the reward points were an 'arrangement' 60 In Commander, the Full Bench referred to the way in which the remuneration package was related to the contract of employment and noted the significance of the way in which the relationship was framed by the statute with the words used involving a degree of repetition. There is force in the construction of s 108A contended for by the applicant. The section deals with an application relating "to a contract of employment under which" a remuneration package that exceeds the cap is paid or received or is payable or receivable. The remuneration package has to arise under a contract of employment: the contract of employment is defined to mean any contract or arrangement under which work is done by a person in the capacity of an employee and includes a related condition or a collateral arrangement with respect to such a contract. The remuneration package is defined to mean the total value of monetary remuneration and employment benefits payable or receivable "under a contract of employment". Thus, the remuneration package is payable under a contract or an arrangement (including a related condition or collateral arrangement) in respect of such a contract. Employment benefit, in turn, is defined to mean a benefit provided to an employee at the cost of his or her employer (being a benefit of a private nature). Such an employment benefit must be payable or receivable under a contract of employment in its extended meaning.

61 The evidence demonstrates, and it appears to be common ground, that there was a formal contract of employment dealing with a number of specific issues but making no mention of the provision of a mobile telephone or the terms upon which a mobile telephone would be made available to the applicant. Similarly, no specific mention was made of the means by which credit card reward points would be made available to the applicant. The respondent's approach is that, so long as there is evidence of the provision of the mobile telephone and the payment of private calls by the applicant,then the entire transaction amounts to an arrangement and is covered by s 108A. The same submission is made in relation to the credit card reward points.

62 In Reich, the Full Bench at [15] stated that the type of transaction caught by reference to s 105 was not limited to a contract or agreement in the strict common law sense of being legally enforceable where a contractual relationship had been established, but extended to cover an arrangement, and further extended to cover any related condition or collateral arrangement. In this way, the section was looking at the overall employment relationship. The Full Bench accepted what had previously been stated by a separate Full Bench in Legal and General Assurance Society, that the term "arrangement" used in the equivalent section was a wide one and encompassed transactions or plans which were not legally enforceable agreements. Thus, the word "arrangement" would apply where there is a bilateral or multi-lateral plan or concerted action to bring about a particular result or where there was an understanding between two or more persons. There may need to be a consideration of discussions or a consideration of what is to be implied or inferred from circumstances, or from the conduct of the parties.

63 Reference is frequently made to the analysis conducted by Sheppard J in Re Hall and Alison Clint Floral Delivery Pty Ltd and ors (1971) AR 56. His Honour was there concerned to examine the width of the term "arrangement" in what was then s 88F of the 1940 Act. His Honour had regard to what had been said by the High Court and the Privy Council concerning the word "arrangement" used in s 260 of the Income Tax (Assessment) Act 1936. His Honour noted, that in Bell v Federal Commissioner of Taxation (1952-1953) 87 CLR 548 at 573, five Judges of the High Court said: ... it may be said that the word 'arrangement' is the third in a series which as regards comprehensiveness is an ascending series, and that the word extends beyond contracts and agreements so as to embrace all kinds of concerted action by which persons may arrange their affairs for a particular purpose or so as to produce a particular effect.

... In Newton v Federal Commissioner of Taxation (1956-57) 97 CLR 1 at 7-8, the Privy Council said: Their Lordships are of opinion that the word 'arrangement' is apt to describe something less than a binding contract or agreement, something in the nature of an understanding between two or more persons - a plan arranged between them which may not be enforceable at law. Having referred to these cases, Sheppard J continued: In drawing on these cases I am not unmindful of the danger of using cases which are authorities on the construction of one statute for the purpose of construing another. An essential distinction between the two sections is that that the income tax section takes an arrangement of a particular kind, that is an arrangement which has the purpose or effect of altering the incidents of taxation, and by its own force avoids that arrangement against the Commissioner. The section under consideration here speaks of an arrangement of a particular kind, that is an arrangement whereby a person performs work in an industry, and then confers upon the Commission power to avoid if it is, for example, unfair. In the one case one has to determine whether there is an arrangement which has the purpose or effect of altering the incidents of income tax. In the other, one simply has to determine whether there is an arrangement under which or whereby work is to be done in an industry. Nothing is said about purpose or effect, but it seems to me to be appropriate to construe the section as applying to any dealing, the purpose of which or the effect of which was to achieve a situation under which a person worked in an industry. The assistance that I think can be obtained from the income tax cases is first of all the width given to the meaning of the word 'arrangement' when it is used together with the words 'contract' and 'agreement'. Secondly, there is the fact that an arrangement will be found to exist where there is a plan or concerted action by a number of people to bring about a particular result (at 64).

64 Applying these approaches to the provision of the mobile telephone, the evidence does not disclose a bilateral plan or concerted action or understanding or discussion bringing about an arrangement whereby the respondent would pay, as part of the work arrangements, for all private calls made by the applicant on the mobile telephone. The primary and substantial benefit of the provision of the mobile telephone, on the evidence, appears to be for the purposes of the respondent and to enable the applicant to be contacted twenty-four hours a day. This evidence was not contradicted by the respondent. The applicant's evidence, without being specific, was to the effect that many of the alleged "private" calls were in fact calls made in the course of the performance of his duties for the respondent and that some of the calls were to make family arrangements because he was working out of hours for the respondent.

65 While the provision of a mobile telephone has the appearance of personal "possession" by the employee, there is no difference in concept to an employer tolerating reasonable use of a company desktop telephone or computer for private purposes. The respondent's approach is that the provisions of s 108A focus upon any private benefit provided to an employee at a cost to the employer: the mere provision of such a benefit is to be regarded as an "arrangement" merely by the conduct of the employer in paying for the private calls and the employee making the private calls. This approach fails to distinguish between an "arrangement" and a gratuity or some other act of tolerance, forbearance or generosity by an employer without it ever having been the result of discussion or consideration by the parties to the so-called arrangement.

66 There are a variety of benefits provided in workplaces to employees at a cost to the employer which may be said to be of a personal or private benefit to the employee but which would never be regarded as part of an "arrangement", including a "related condition" or a "collateral arrangement" to the contract of employment. It is not unusual in many spheres of business for regular entertainment to be held for social purposes such as lunches, end of week drinks, special occasion dinners and Christmas parties, all of which provide a personal benefit to the employee at a cost to the employer: nor is it unusual for employers to provide access to cultural events for its employees and clients or to permit various workplace facilities to be used for reasonable personal purposes by staff. Having regard to the parliamentary debates and the terms of s 108A, I have great difficulty in concluding that it was the legislative intention that the parties and the Court should become involved in a protracted exercise whereby the minutiae of the employment would be subjected to close scrutiny and evaluation in order to establish all the benefits an employee received from the employer. It is quite clear that the legislature has cast a wide net: consideration is not limited to cash payments or base salary, with bonus payments, superannuation payments and motor vehicles all to be considered in determining the remuneration package. This approach does no more than look to the features which regularly arise when the Court is required to consider what is the remuneration package when formulating an appropriate money order having determined that a contract is unfair. In this context, cases under s 106 have not generally factored in the benefit of a mobile telephone or credit card reward points. The Court is not usually called upon to value all the benefits such as staff lunches, parties and attendances at sporting and cultural events at the expense of the employer. The approach urged by the respondent would not accord with the construction of s 108A determined by the Full Court in Commander: it is difficult to see how such an approach would enable parties "to determine with objective certainty whether an application may be brought", nor would such an approach give "litigants and potential litigants greater certainty" regarding the application of the section.

67 It is of some significance that in the course of argument the respondent was unable to identify a case under the unfair contracts provision in its various forms which included the provision of a mobile telephone or the access to credit card reward points as being determined to be part of the remuneration package for the purposes of making an order for the payment of money to an employee. While these matters have been taken into account for the purposes of s 83 of the Act, much seems to turn upon the evidence in particular cases. For example, in Jackson the evidence showed that in the previous twelve months the applicant had accumulated nearly 380,000 frequent flyer points and had asserted with some vigour that the provision of the corporate credit card and his access to extensive frequent flyer points were part of his employment entitlements: he protested vigorously when they were attempted to be removed. That is not the evidence or anything like the evidence in the present case.

68 In Shead, the Full Bench concluded that the word "remuneration" was not used consistently throughout the 1996 Act and that fact may have led the Full Bench in Commander to state that cases dealt with under s 83 of the Act provide limited assistance since that provision was concerned with the different statutory scheme involved in the consideration of the expression "annual remuneration" in s 83(1)(b). In addition, in Shead, the Full Bench noted that employees with packages over the limit value of $68,000 could gain access to a review of their dismissal so long as the cash component of the package was less than $68,000: such employees could, by choosing a package with a lower salary and higher benefits, gain access to the unfair dismissal provisions which the legislature intended to make available only to a particular class of employee while other employees, remunerated on the same total basis but with a package with a higher salary component, would have no such rights. It was said that such a result would seem both odd and unintended having regard to the scheme established by Part 6, Chapter 2 of the 1996 Act. The Court then went on to state that employees with total packages of less than $68,000 would have compensation available to them under s 89 limited to the cash component of their package - a significant disadvantage but one resulting from the narrow meaning given to remuneration by the drafter of the statute, presumably in order to allow more highly remunerated employees access to the relief provided. This was again said to be a peculiar and unintended result. In the context of s 108A the respondent's approach may lead to the unintended consequence that, while a miscellany of benefits provided at the employer's cost may be taken into account in determining whether or not the salary cap has been exceeded, it would also have the result that, where the salary cap was not exceeded with the inclusion of such benefits, the making of a money order may nevertheless, and apparently for the first time in the long operation of this provision, entitle the Court to calculate the remuneration package on the basis of such private benefits being included. The Court and the parties would therefore become involved in an excruciatingly detailed analysis of every benefit provided to an employee at the cost of the employer which might be said to be a private benefit: it is difficult to accept that this was the intention of the legislature in enacting the 2002 amendments.

69 The same analysis applies to the provision of the corporate card and the applicant's access to the reward programme. The fee for access to the reward programme in this case was paid by the applicant and under an amended scheme introduced by the respondent, the applicant became personally liable for amounts payable using the credit card, including interest where payment was not made within the time limit imposed by the credit card provider. There is no evidence that access to the credit card rewards programme was the subject of any discussion or plan between the parties whereby this benefit would be secured for the applicant. There is the additional difficulty that the very modest number of points accumulated by the applicant could not be valued other than by reference to the American Express website which gave a notional value of one cent per point. The evidence of this evaluation was highly unsatisfactory and there was, in fact, no evidence of the basis of that evaluation. Further, during the twelve month period, the applicant had obtained no benefit from the conversion of the points and there was no evidence that the points accumulated from business expenditure gave him an entitlement to any benefit under the reward scheme. In those circumstances, the evidence does not support a finding that the applicant's participation in the credit card rewards programme constituted an "employment benefit" for the purposes of s 108A(3) of the Act.

70 I am therefore able to conclude that for the purposes of s 108A the remuneration package of the applicant was $200,000 and that it does not exceed the salary cap. The applicant is entitled to maintain these proceedings against the respondent. That conclusion is sufficient to determine the questions raised on the respondent's Notice of Motion. However, the applicant also argued that, applying the peculiar terms of s 108A to his circumstances, his remuneration package was in fact $198,560.44 because, under the contract or arrangement with the respondent, $1,439.56 was deducted from the pre-tax salary to pay for parking provided by the employer to the applicant. I am unable to accept the applicant's argument in this regard based, as it is, on considerable linguistic gymnastics. The position was quite simple: the applicant had a salary package of $200,000 and was able to obtain access to on-site parking at the cost of approximately $1,400 per annum which would be deducted from his monthly salary. If the applicant chose not to park his car at the employer's premises and chose in the alternative to organise cheaper parking or to attempt to park in the street for free, his remuneration package would still total $200,000. The fact that parking costs were deducted from his salary by the respondent did not result in his remuneration package being reduced from $200,000 to $198,600 for the purposes of s 108A: at all times, his remuneration package remained $200,000. The adoption of the applicant's approach would result in the type of unintended consequences and uncertainty referred to by the Full Bench in Commander.

ORDER 71 The respondent's Notice of Motion is accordingly dismissed. Arrangements will be made shortly with the parties to enable conciliation to proceed.

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