Allowances and the high income threshold

This decision of the Fair Work Commission is an excellent summary of the legal principles which are applied by the Commission when determining whether allowances are to be included in the calculation of an employee’s “rate of earnings” for the purposes of the high income threshold for unfair dismissal.

“Application for an unfair dismissal remedy

[1] On 12 May 2023, Mr Matthew Laurence (Mr Laurence /the Applicant) applied to the

Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act)

for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with

NGI Holdings Pty Ltd (the Respondent).

[2] The Respondent raised a jurisdictional objection that the Applicant earned more than

the high income threshold.

[3] I listed the matter for an initial directions hearing by telephone on 27 June 2023. The

matter was listed for Hearing of the jurisdictional objection by Microsoft Teams Video on 7

August 2023.

[4] Leave was granted for the Applicant to be represented by Mr William Isdale of Counsel

instructed by Hickey Lawyers and the Respondent was represented by Mr Joseph D’Abaco of

Counsel instructed by Mr Graeme Halperin from Haperin & Co.

[5] The Applicant raised an objection to the admission of certain further material the

Respondent sought to rely on which was filed prior to the hearing in addition to the material

directed to be filed. I allowed a further statement of Mr Edward Aldridge to be filed which was

responsive to the Applicant’s statement. The Applicant then filed a further supplementary

statement in response. I also allowed further material to be submitted that was filed prior to the

hearing in the form of airline tickets which was related to an issue about the amount of money

paid for by the Respondent which had some relevance to an issue in dispute.

Background

[6] The Respondent owns and operates nine McDonald’s restaurants in southern New South

Wales and regional Victoria.

[2023] FWC 2425

DECISION

[2023] FWC 2425

2

[7] The Applicant commenced employment with the Respondent on 10 March 2008 and

was appointed to the position of General Manager in 2014. In 2014, through his personal

company Meak Investments Pty Ltd (Meak), the Applicant acquired a 1% interest in the

Respondent’s business and Meak and the Respondent became business partners. By 2020,

Meak owned a 5% interest in the Respondent’s business.

[8] In June 2022, the Applicant moved to Queensland. He continued to work as the

Respondent’s General Manager, travelling from Queensland to Wodonga on a weekly basis and

working three days per week in Wodonga.

[9] On 20 February 2023, the Respondent gave the Applicant notice of his dismissal. The

Applicant’s employment ceased on 21 April 2023.

JURISDICTION

Submissions & Evidence

[10] The Respondent relied on an initial witness statement of Mr Edward Aldridge1

the sole

Director of the Respondent of 7 July 2023, and a second statement of Mr Aldridge dated 1

August 2023.2

The Applicant relied on his own initial statement of 20 July 2023,3

and a further

statement of 4 August 2023.4

The Applicant also relied on the evidence of his wife, Ms Alice

Laurence who provided a statement dated 21 July 2023.5

[11] A bundle of airlines tickets was also admitted into evidence through Mr Aldridge6

as

was a table summarising the airline tickets,7

extracts from the corporate credit card provided by

the Respondent to the Applicant which Mr Aldridge said was used to purchase other flights8

,

and a summary of flights paid for on the corporate credit card.9

Remuneration Package

[12] The Respondent submitted that the Applicant received a remuneration package

comprising various elements in the year preceding his dismissal, including partnership income

of $196,164.99. Relevantly, the Respondent submitted that the Applicant’s annual rate of

earnings as an employee was $206,592.34, comprising:

(a) Annual salary: $149,030.29

(b) Full personal use of a motor vehicle: $31,112.90

(c) Flight allowance: $20,000.00

(d) Car parking: $1,727.27

(e) Monthly personal allowance: $2,400.00

(f) Clothing allowance: $2,321.88

[13] At the time of the Applicant’s dismissal, the high income threshold was $162,000.00.

The Respondent contended that the Applicant’s annual earnings were well in excess of that

amount. The Applicant was not covered by a modern award, and no enterprise agreement

applied to the Applicant in relation to his employment. In those circumstances, the Respondent

contends that the Commission does not have jurisdiction to consider the Applicant’s unfair

dismissal application and must dismiss it.

[2023] FWC 2425

3

[14] The Applicant’s position is that his salary was no greater than $151,243.95 under the

Act.

[15] It is common ground that a modern award did not cover the Applicant and an enterprise

agreement did not apply to the Applicant in relation to his employment with the Respondent.

Accordingly, pursuant to s. 382(b)(iii) of the Act, for the Commission to have jurisdiction to

determine this application, it must be satisfied that the sum of the Applicant’s annual rate of

earnings, and such other amounts (if any) worked out in relation to the Applicant in accordance

with the Regulations, is less than the “high income threshold”.

Partnership earnings of $196,164.99.

[16] Whilst the partnership earnings were not disputed by the Applicant, they are not

earnings from employment and on that basis should not be counted for the purposes of the high

income threshold.

Annual salary of $149,030.29 including TOIL

[17] The Respondent submitted a person’s annual rate of earnings must be ascertained at the

time of the termination of the person’s employment. What must be ascertained is the annual

rate of earnings at that time, not the annual earnings to that time (i.e the amount earned in the

12 months prior to that time). At the time of the Applicant’s dismissal, The Respondent

submitted his annual salary was $144,043.95.

[18] Additionally, the Respondent submitted that as part of the terms of his employment with

the Respondent, the Applicant was paid an additional amount in respect of occasions when he

worked on public holidays. At the time of his dismissal, he was paid $4,986.14 in respect of

this entitlement.

[19] The Respondent submitted that this additional amount formed part of the Applicant’s

“wages” for the purposes of s.332(1)(a) of the Act and accordingly, part of the Applicant’s

annual rate of earnings at the time of his dismissal.

[20] The Applicant submitted the evidence of Mr Laurence is that he had no entitlement to

payment for working on public holidays, and instead he was allocated Time in Lieu. His

evidence is that he accrued this time to use at a later stage.

[21] The Applicant submitted that even if a monetary amount for this Time in Lieu was paid

out upon his termination, such an amount could not be considered “wages” (as the Respondent

contends) in circumstances where it was never agreed that he would receive additional

monetary amounts for this time. As observed in Terry Shields Pty Ltd v Chief Cmr of Pay-Roll

Tax (NSW), “wages” has a “well accepted meaning” which refers to a “sum of money” and

which is “agreed to be paid” for the employee’s services. The Applicant submitted that the

Respondent has not provided any evidence that the Time in Lieu was agreed to be paid as a

“sum of money”, such as could constitute “wages”.

[2023] FWC 2425

4

[22] The Applicant submitted that the payment of the Time in Lieu upon termination was a

payment “the amount of which cannot be determined in advance” (because it was not

“anticipated or agreed to in advance”), or arguably a “reimbursement” (for un-used Time in

Lieu), such that it was expressly excluded from the definition of earnings in s.332(2)(a)-(b) of

the Act.

[23] Mr Aldridge’s evidence was time off in lieu if not taken was to be paid out if not used

to take additional days off. Mr Laurence said there was no agreement for the payout of TOIL.

Mr Laurence said his understanding was days in lieu were for working on public holidays and

the practice was you would take that day on a quiet day. Mr Laurence said his understanding

was for any salaried employees that outstanding days in lieu would on their termination have

that time paid out.

Full personal use of motor vehicle of $31,112.90

[24] The Respondent submitted that as part of the terms of his employment contract, the

Applicant was provided with a fully maintained motor vehicle, for business and personal use.

[25] The Respondent submitted in accordance with regulation 3.05(6), the Commission may

estimate the money value of the benefit of the motor vehicle provided to the Applicant. That

amount is to be included in the Applicant’s annual rate of earnings under s. 382(b)(iii).

[26] The Respondent submitted in calculating the value of the motor vehicle component of

an Applicant’s remuneration, the approach adopted in the Commission is as follows:

(a) Step 1 – determine the annual distance travelled by the vehicle in question;

(b) Step 2 – determine the percentage of the annual distance travelled which was for the

Applicant’s private purposes;

(c) Step 3 – multiply the figures from step 1 and step 2. This provides the annual distance

travelled for private purposes;

(d) Step 4 – estimate the cost per kilometre for a vehicle of the type used. This information

can be obtained from the RACV, NRMA or like motoring organisations;

(e) Step 5 – multiply the annual distance travelled for private purposes by the estimated

cost per kilometre. The result is the value of the motor vehicle component of the

Applicant’s remuneration.

[27] The Respondent submitted between 21 June 2022 (when he departed Wodonga for

Queensland) and his dismissal on 21 April 2023, the Applicant used the motor vehicle provided

to him by the Respondent exclusively for private purposes. The Respondent’s McDonalds

restaurants are located in southern New South Wales and Victoria – not Queensland. The

Respondent submitted that there was no possible work-related use of the vehicle while the

Applicant drove it in Queensland.

[2023] FWC 2425

5

[28] The Respondent has calculated that the Applicant travelled 39,888.33 km in the vehicle,

exclusively for private purposes, while he lived in Queensland. This calculation is based on the

distance travelled by the vehicle, and the fuel it consumed while the Applicant drove it in

Queensland.

[29] The Respondent submitted in the absence of either the NRMA or the RACV having a

published “per kilometre” rate for the make and model of the vehicle in question (a Volkswagen

Toureg), the Respondent has adopted the per kilometre rate of 78 cents published by the

Australian Tax Office. Based on the distance travelled by the vehicle of 39,888.33km for private

purposes, the value of the motor vehicle was $31,112.90.10

[30] The Applicant submitted it is not in dispute that the Applicant was provided with a motor

vehicle, and that the value of the private use of the vehicle is to be included in the annual rate

of earnings. The Applicant also does not take issue with the general method of calculating the

value of the Applicant’s private use of the vehicle as summarised in the Respondent’s

submissions.

[31] However, the Applicant takes issue with the Respondent’s submission that a driving

distance of 39,888.33km is to be attributed to the Applicant’s driving of the vehicle for private

purposes.

[32] The Applicant submitted the evidence of Mr Laurence is that the motor vehicle was

provided by the Respondent for use by both him and his wife, Alice Laurence, who was also

(and on Mr Laurence’s evidence, is still) employed by the Respondent.

[33] The Applicant submitted according to Mr Laurence, the motor vehicle was

“predominantly used by Alice”, and Alice “had majority use of and benefit of the Company Car

over the past 12 months”.

[34] The Applicant submitted accordingly, it is not possible to attribute all of the use of the

vehicle to private usage by the Applicant. Instead, Mr Laurence estimates that his use of the

motor vehicle for private benefit in the preceding 12 months was “10,000km”. As explained in

the Applicant’s previous submissions, at an estimated cost of $0.72 per kilometre, that results

in an amount of $7,200 attributable to the Applicant’s private use of the vehicle, to be included

in determining the high income threshold.

[35] The Applicant submitted that where an employee is provided with a motor vehicle, the

value of the private use of the vehicle is included in the annual rate of earnings. At the time of

the Applicant’s dismissal, the Respondent had provided the Applicant with a company vehicle.

The Respondent had fully paid for the vehicle.

[36] The Applicant submitted the use of a motor vehicle for business purposes is excluded

from an employee’s annual rate of earnings. The Applicant is only required to include the

proportion attributed to private usage.

[37] The Applicant submitted no monetary value was agreed between the Applicant and the

Respondent. It was submitted the Applicant has travelled approximately 10,000 kilometres at

[2023] FWC 2425

6

an estimated cost of $0.72 per kilometre (based on the Australian Taxation Office); the amount

of $7,200 is included in the Applicant’s annual rate of earnings.

Ms Laurence’s use of the Vehicle

[38] Ms Laurence’s evidence was that the Employer provided the VW Touareg to be shared

between herself and Mr Laurence. Ms Laurence stated that she predominately used the

Company Car as she was required to travel to each of the 9 McCafe sites she managed during

her employment.

[39] Where possible, Ms Laurence said she and Mr Laurence would travel in the Company

Car together, but Mr Laurence would have to use his car when their shifts would overlap or

travel to different sites. Ms Laurence stated that they moved to the Gold Coast in July 2022 and

she remained employed at the Employer to support the McCafe business remotely with phone

questions and emails. As of the date of her statement, she stated she has not submitted a

resignation to the Employer, nor has she received any notice of termination. As she understood

it, she was still an employee of the Employer, working in an advisory capacity. However, she

has not been paid since approximately 16 August 2022.

[40] Ms Laurence submitted she has been the main driver of the Company Car for the last 12

months. She further submitted that while still in Victoria, she and the Applicant made multiple

trips to sites 160km from the most southern site. She recalled that they would often add 1000

km to the Company Car for trips conducted for work purposes with the locations they were

required to travel to.

[41] Mr Aldridge’s evidence was that the Vehicle was provided by the Respondent for the

Applicant’s business and personal use as part of his employment remuneration package. It was

not provided by the Respondent for Ms Laurence’s use, or to share with Ms Laurence, or as

part of Ms Laurence’s employment remuneration package. If Ms Laurence used the Vehicle, it

was under an arrangement agreed between the Applicant and Ms Laurence, without the

Respondent being consulted about any such arrangement. It was put to Mr Laurence that Mr

Aldridge had said that the VW Touareg was not provided for Ms Laurence’s use or to share

with her or as part of her employment package. Mr Laurence said in a conversation he had with

Mr Aldridge in approximately August 2020 at a café in Wodonga he put it to Mr Aldridge that

they needed to upgrade their current VW Touareg which was a white 2016 model which Ms

Laurence drove for work purposes which was a personal car. Mr Laurence said Mr Aldridge

agreed to upgrade that car to the new VW Touareg which would be a black 2020 model owned

by the Respondent for both the Mr and Ms Laurence to drive. Mr Laurence said at that time he

was driving his BMW M3 for work purposes which was his personal car, and Mr Aldridge was

aware he was driving his personal car for work.

[42] Mr Aldridge’s evidence was that Ms Laurence was employed by the Respondent as the

McCafe Business Manager. She ceased employment with the Respondent with effect on 19

June 2022, shortly before she and her family permanently moved to the Gold Coast. If she

travelled to any of the Respondent’s restaurants after that date, she did so by her own choice

and not as an employee of the Respondent.

[2023] FWC 2425

7

[43] Mr Aldridge’s evidence was that on 21 July 2023, Ms Laurence emailed the

Respondent’s bookkeeper, Angela Mitchell, requesting her employment separation certificate

from the date she was terminated on the Respondent’s payroll system, stating that Centrelink

were “hassling” her for it.

[44] Mr Aldridge’s evidence was that Ms Laurence did not remain employed by the

Respondent after moving to the Gold Coast. After Ms Laurence left for the Gold Coast, her

duties were performed for approximately a month by another employee, Verity Speziale, who

was employed in the position of McCafe Supervisor. The Respondent then re-organised the

management of its McCafes, with a staff member at each of the Respondent’s various

restaurants assuming the additional responsibility of also supervising the McCafe at their

particular restaurant.

[45] Mr Aldridge stated that Ms Laurence ceased to be an employee of the Respondent with

effect on 19 June 2022. Both the Applicant and Ms Laurence told he and his wife that Ms

Laurence was leaving the Respondent and that she planned to pursue a house staging business

on the Gold Coast. Consistent with the Respondent’s usual practice when senior staff resign,

they held a farewell dinner for Ms Laurence. On 16 June 2022, commencing at 6 pm,

approximately 18 staff of the Respondent, including he and his wife, attended a farewell dinner

for Ms Laurence at Din Dins restaurant in Albury where they wished her all the best for the

future. The Respondent’s Operations Manager, Tim Longman, delivered a speech thanking Ms

Laurence for her service to the Respondent and then publicly gave her an engraved watch in

recognition of her years of service with the Respondent. Mr Aldridge said he and his wife gave

her a glass carafe and tumblers on account of her leaving them. A copy of the invitation to

attend Ms Laurence’s Farewell Dinner was attached to Mr Aldridge’s second statement at

EA12. It states: “It’s time to say a fond farewell to our fearless McCafe Business Manager

Alice”.

[46] Mr Aldridge’s evidence was that Ms Laurence has not worked in any capacity for the

Respondent since 19 June 2022 and has been paid out all of her accrued employment

entitlements. Ms Laurence’s accrued “payment in lieu” for 15 days of additional work

calculated at her normal pay rate, accrued annual leave and accrued long service leave were

paid out in instalments by the Respondent between 26 June 2022 and 16 August 2022. Mr

Aldridge’s evidence was that he was told by the Respondent’s bookkeeper, Angela Mitchell,

and believed that these amounts were paid in instalments as this is what the Applicant asked

her to do, rather than being paid out as soon as Ms Laurence’s employment ceased in accordance

with the Respondent’s usual practice.

[47] Mr Aldridge’s evidence was that Ms Laurence is not still currently employed by the

Respondent. She ceased employment with the Respondent with effect on 19 June 2022, as stated

above. No instruction was ever given to Ms Laurence to stop using the Vehicle, as the

Respondent did not know she was using it and did not supervise the use of the Vehicle before

it was collected by Prixcar on 26 April 2023.

[48] Mr Aldridge agreed that Ms Laurence travelled to McCafe’s whilst employed by the

Respondent and did so by car. Mr Aldridge accepted that Ms Laurence had a fuel card. Mr

Aldridge was clear that the Volkswagen Tourag was provided to Mr Laurence and not to both

Mr and Ms Laurence.

[2023] FWC 2425

8

[49] Mr Aldridge rejected the proposition that Ms Laurence continued to be employed by the

Respondent after she moved to the Gold Coast. Mr Aldridge maintained any payments made

to Ms Laurence after she moved to the Gold Coast were paying out the remainder of her

entitlements.

[50] Mr Aldridge said there was verbal resignation provided by Mr and Ms Laurence. Mr

Aldridge said that the conversation was that Ms Laurence said that she was leaving with her

family to go to Queensland and she was planning to start her own house staging business for

the sale of houses in Queensland which she had been doing in Victoria, and there was no

indication that she was staying or having consultation with cafes. Mr Aldridge said no other

payment was made to Ms Laurence from that point except in relation to her entitlements to that

point.

[51] Mr Aldridge said Mr Laurence said much the same, that Ms Laurence wanted to build

her business in Queensland and she wanted the Queensland lifestyle. Mr Laurence agreed he

was present at the farewell dinner for his wife on 16 June 2022. It was put to Mr Laurence that

a speech was given where she was thanked for her service to the Respondent, and she was given

a watch and glass tumblers and that they were farewell gifts given to Ms Laurence on occasion

of her leaving her employment and moving to Queensland. Mr Laurence did not agree. He

accepted she was ceasing as a full-time employee.

[52] It was put to Mr Laurence that another employee moved into the position of supervising

the McCafe’s after his wife left, and a month or two later this function was devolved to each

business and the position of McCafe Business Manager ceased to exist. Mr Laurence

maintained that Ms Laurence continued in a consultant role, however he agreed no consulting

fees were charged.

[53] Ms Laurence did not accept that she resigned from employment with the Respondent on

19 June 2022. Ms Laurence said she has never handed in a resignation letter and had not

received a termination letter. Ms Laurence claimed she has worked for the Respondent since

moving to the Gold Coast by phone calls and answering questions by emails and messages. Ms

Laurence said this happened a couple of times a week and slowly wasn’t as much. Ms Laurence

believed the last time this happened was at the end of last year. She also said she has not

verbally resigned. Ms Laurence said she understood a farewell dinner was because she was

moving to the Gold Coast. Ms Laurence was asked if she still had an email account with the

Respondent and she said, no it had been terminated and she had access to the account after she

moved to the Gold Coast but could not provide a specific estimation of when this occurred,

however she said she believed it was this year.

[54] Ms Laurence was asked if she has received any payments from the Respondent after

moving to the Gold Coast and she said no.

[55] It was put to Mr Laurence that as part of his remuneration package the Respondent

provided him with a fully maintained company vehicle. Mr Laurence did not agree. Mr

Laurence claimed the VW Touareg was provide to both his wife and himself, and not

exclusively to him. Mr Laurence was referred to the schedule or motor vehicle fringe benefits

for the VW Touareg attached to the evidence of Mr Aldridge. Mr Laurence accepted he signed

[2023] FWC 2425

9

the document and that he is listed in the document as the employee who is identified in the

document. Mr Laurence agreed that the document showed that as at 31 March 2022 the

odometer reading was 41,002km, and agreed that by signing the document he declared that the

information in the document was correct.

[56] It was put to Mr Laurence that the information in the document includes the fact that the

VW Touareg was provided to him for his business and personal use. Mr Laurence did not agree

with that proposition. Mr Laurence said he was told by Ms Alicia Aldridge that the majority

driver should sign the document, and as he had been the majority driver in the previous 12

months, he signed. He accepted there was no reference to his wife in the document. He

accepted that by signing the document he was declaring it was correct. It was put to Mr

Laurence that he did not discuss with Ms Aldridge at the time he signed the document the use

of the vehicle by his wife, and he said he did not recall.

[57] Mr Laurence accepted he was entitled to use the vehicle for full personal use. The

Applicant was referred to the vehicle condition report which is dated 26 April 2023. The

Applicant accepted that he was listed as the sender of the vehicle. He said he didn’t recall

signing the document but said he gave the keys over, and it may have been a signature on an

iPad. He said Ms Aldridge prepared the document and she would have placed his name in the

document. His evidence in re-examination was that he did not know whose signature was on

the document.

[58] Mr Laurence accepted he drove the vehicle in Victoria for work purposes from 2020

until he left for Queensland in June 2022. He agreed he shared the driving with Ms Laurence

when the vehicle was driven to Queensland. He agreed the vehicle remained in Queensland for

the entire time from the move until the end of his employment. It was put to Mr Laurence that

for the entire time the vehicle was in Queensland it was used for personal use. He said he used

it to drive to the airport to travel to Victoria. Mr Laurence accepted that travel to and from

work is part of the ordinary expense incurred by an employee of being employed which they

incurred themselves. It was put to Mr Laurence that the vehicle when in Queensland was used

entirely for personal use. Mr Laurence said the internet at his home could be unstable so he

would travel to cafes with more stable internet connections.

[59] Mr Laurence was asked what Ms Laurence was paid when she worked for the

Respondent. He said he did not remember. It was put to Mr Laurence that Ms Laurence’s gross

weekly wage was $1,254 and he agreed with that figure. Ms Laurence also agreed during her

oral evidence that this figure was correct. Ms Laurence also agreed she was provided with a

motor card and through this the Respondent paid for the cost of fuel. Ms Laurence was asked

if any other items of remuneration were provided to her by the Respondent, and she said she

was able to use the car for work. She agreed that was as a result of Mr Laurence telling her she

was entitled to do that.

[60] Mr Laurence accepted that there was no written agreement for his wife to have the use

of car as part of her remuneration package. Mr Laurence said the agreement that she could have

use of the car was from him. He agreed it was something he permitted her to do. Mr Laurence

maintained it was discussed with Mr Aldridge. It was put to Mr Laurence that the Black VW

Touareg was to replace his existing company vehicle at the time and he rejected that. He said

he had no company vehicle prior to the Black VW Touareg, he had his own BMW which was

[2023] FWC 2425

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personally owned. Mr Laurence said his wife’s White 2016 VW Touareg was traded in at the

dealership when the Black 2020 VW Touareg was purchased.

[61] It was put to Mr Laurence that his evidence that the vehicle was provided for both his

and his wife’s use was a fiction which he has come up with to try to reduce the value of his total

remuneration. Mr Laurence rejected that. Mr Laurence maintained the discussion with Mr

Aldridge in August 2020 was about replacing his wife’s car. Mr Laurence said it was agreed

Mr Aldridge would purchase the car. Mr Laurence was asked in re-examination if the only

reason his wife was permitted to use the car was because he agreed to it and he said that was

correct. Mr Laurence was also asked in re-examination if during the conversation with Mr

Aldridge (in August 2020) whether there was any discussion of his wife using the car, and he

said he did not recall the conversation being a specific conversation about Ms Laurence’s use

of the car, however he then said he provided a purpose for the car as being for Ms Laurence to

drive. Mr Laurence said when he was in Queensland predominantly his wife would use the car.

He said he would drive to the post office using the car for work purposes.

[62] Mr Laurence was asked about his evidence where he said if his shift overlapped with

his wife’s shift (while they both worked for the Respondent in Victoria) that one of the personal

cars was used to drive for work without seeking reimbursement. He accepted the reimbursement

was not sought. He agreed that both he and his wife had motor pass cards and the Respondent

paid for the fuel in the personal car as well. He said he could not remember if the motor pass

card was used for repairs and other items for the personal car. He accepted that the motor pass

card continued to be used after the move to Queensland. Mr Laurence accepted that the

Respondent was paying for fuel in both the company car and the personal car, and this continued

to be the case after the move to Queensland.

[63] It was put to Mr Laurence that this was something that was never agreed or condoned

by Mr Aldridge. Mr Laurence said it was never condoned. He said he recalled a conversation

when he received his first motor car card, and he said as a joke it was said if you travel around

Australia you should put some fuel in.

[64] Mr Laurence was referred to his evidence where he said he requested from the

Respondent to work remotely. It was put to Mr Laurence he did not put a request to Mr Aldridge

but an ultimatum. Mr Laurence responded that it was an offer. Mr Laurence accepted that he

told Mr Aldridge that he and his family were moving to Queensland, and it was non-negotiable.

Mr Laurence appeared to accept that had Mr Aldridge not agreed with him continuing to be

employed from Queensland he would have resigned. He agreed he told Mr Aldridge he was

prepared to work on a fly in fly out basis, he did not agree that it was on a temporary basis. Mr

Laurence agreed there were two meetings. He said he did not recall whether Mr Aldridge

agreed at the first meeting. It was put to Mr Laurence that Mr Aldridge agreed at the second

meeting, and Mr Laurence said he did not recall the meeting, and he didn’t believe it happened.

It was put to him that he did not take issue with it in his 20 June 2023 witness statement that

Mr Aldridge said there were two meetings in his first statement. Mr Laurence agreed he did

not say anything about it in his first statement.

[65] Mr Laurence agreed that he used his personal vehicle for work purposes in Queensland.

It was put to him that he could have used the black VW Touareg but he didn’t because he chose

to give it to his wife to use for personal use. Mr Laurence said his wife was continuing to use

[2023] FWC 2425

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the car in Queensland as she had in Victoria. Mr Laurence maintained that Ms Laurence was

still employed by the Respondent in Queensland and she reported to him. It was put to Mr

Laurence that the last payment for wages she received from the Respondent was in June 2022.

Mr Laurence rejected that. Mr Laurence agreed that the only other payment she received was

for her accrued annual leave and long service leave entitlements. He accepted that, however

did not accept that she had ceased employment. Mr Laurence said the annual leave and long

service was taken in consecutive weeks, and agreed this was at both Ms Laurence’s and his

request. He agreed the last payment was made on 14 August 2022, and has not received any

other salary or wages since that time, and has not sought any salary or wages since that time.

[66] Ms Laurence said her understanding regarding the 2020 VW Touareg was that it was to

replace her family car, and she was to use it to drive to work, Mr Laurence was to use it for

work, and it was to be used for personal use. Ms Laurence said she used the vehicle to drive to

McDonalds stores. Ms Laurence agreed she used the vehicle for personal use after moving to

the Gold Coast. Ms Laurence said she used the vehicle more often than Mr Laurence since

moving to Queensland.

[67] Ms Laurence agreed that for two days of the week when her husband worked in

Queensland he worked from home, and that there was a study space in their home. Ms Laurence

agreed that Mr Laurence had access to the internet in this study space and whenever he needed

to access the internet for emails and to have meetings he would use the study, including for

Teams meetings.

[68] Ms Laurence agreed she is currently employed on a casual basis and that she has been

for the last eight months and that she commenced this casual employment at the end of 2022.

Ms Laurence agreed she also has a house staging business and that she told Mr and Ms Aldridge

that when she left to move to Queensland, she would be working on her house staging business.

Ms Laurence agreed that when she was employed in Victoria as a McCafe Business Manager,

her primary responsibility was to supervise the activities of the McCafes at the Respondent’s

nine business sites. Ms Laurence agreed she frequently visited the sites, and was involved in

the recruitment of staff, and was part of the process for termination of employees.

[69] Ms Laurence agreed that on the drive from Victoria to Queensland in June 2022 Mr

Laurence did most of the driving. It was put to Ms Laurence that after she relocated to

Queensland she was no longer supervising the various McCafé’s, and she said she had stepped

down to casual. Ms Laurence said no one took over her role. It was put to Ms Laurence that

for the first month or two another employee was responsible for this and she agreed this other

employee was going to do some work in the McCafé’s. Ms Laurence accepted she did not visit

the McCafé’s anymore after she moved to Queensland for work purposes, and she was no longer

involved in employment or termination of employment in the McCafé’s.

[70] Ms Laurence accepted she has not received any payslips since moving to Queensland

however she said she has received annual leave and long service leave pay. She accepted these

were her accrued entitlements. It was put to Ms Laurence that she has not provided any services

as an employee to the Respondent since moving to Queensland that would lead to her to expect

to be paid a wage. Ms Laurence disagreed, but accepted that she had not sought to be paid by

the Respondent. Ms Laurence agreed she asked for a separation certificate in an email to Angela

Mitchell the bookkeeper, asking for Ms Mitchell to send her, her separation certificate from the

[2023] FWC 2425

12

date she had been terminated in the system. Ms Laurence said Mr Laurence had asked her to

email Ms Mitchell to ask for the separation certificate because as she needed it for Centrelink.

Ms Laurence agreed that 16 August 2022 sounded correct as being the date for the last time she

received payment from the Respondent, and that was for accrued long service leave

entitlements. Ms Laurence agreed she received a separation certificate recently from the

Respondent saying her employment ceased on 19 June 2022. Ms Laurence accepted she had

not communicated with the Respondent saying that was incorrect, or that it was incorrect in

saying she ceased employment voluntarily because she was moving interstate.

[71] Ms Laurence accepted she was given an engraved watch at a dinner and also

remembered receiving gifts from Mr and Ms Aldridge.

[72] Ms Laurence accepted she used the VW Touareg in Queensland and that she did not use

it for work purposes. Ms Laurence accepted she had never discussed the use of the vehicle with

Mr and Ms Aldridge and the use of the vehicle was something she discussed with her husband.

Ms Laurence said she did not remember signing any document relating to fringe benefits tax in

relation to the vehicle. Ms Laurence agreed she did not have any discussions with Mr Aldridge

in August 2020 at the time of the purchase of the 2020 VW Touareg and she agreed her

understanding about the arrangement was based on what her husband told her.

Flight allowance of $20,000.00

[73] The Respondent submitted as part of the Applicant moving to Queensland, the

Respondent agreed to pay him an annual flight allowance of $20,000.00, to cover the cost of

the Applicant flying from his home in Queensland to his workplace in Wodonga (and return)

each week. This allowance was not for the purposes of the Respondent’s business – but rather,

to enable the Applicant to attend the workplace and to then return home from the workplace.

[74] In Chieng v Rio Tinto Aluminium Limited,

10 the Commission was required to determine

whether a Remote Area Travel Allowance (RATA) of $22,720.00 per annum paid to an

employee constituted earnings for the purposes of s. 332(1) of the Act. The RATA was paid to

the employee by the employer to enable her to travel to and from her workplace, in Gove. The

Commission held that the RATA was to be included in calculating the employee’s earnings for

the purposes of s. 332 of the Act.

[75] The Respondent submitted the flight allowance of $20,000.00 which the Respondent

paid to the Applicant is in substance the same as the RATA considered by the Commission in

Chieng, and it should be included in the Applicant’s annual rate of earnings for the purposes of

  1. 332 of the Act.

[76] The Applicant disagreed with the Respondent’s submission that a “flight allowance” of

$20,000 is to be included as part of the Applicant’s annual rate of earnings. The evidence of Mr

Laurence is that there was never “any communication regarding $20,000 or a number to that

effect”. Instead, Mr Laurence only provided an estimated cost of $500-600 per flight (to travel

from the Gold Coast to Albury/Wodonga for work purposes), to which Mr Aldridge (on behalf

of the Respondent) agreed.

[2023] FWC 2425

13

[77] The Applicant submitted there is no evidence that it was agreed precisely how many

flights there would be, or that there was any agreement on the overall amount of the benefit.

For that reason, there were “payments the amount of which cannot be determined in advance”,

which are expressly excluded from the definition of earnings by s.332(2)(a). Further, the

Respondent appears to have only agreed to an arrangement which it reserved the right to modify

or discontinue. According to Mr Aldridge, the flight arrangements (including payments) were

to be tried out on a “temporary basis” – indicating they could be discontinued at any time. As

the Full Bench observed in relation to the s.332(2)(a) exclusion in Jenny Craig Weight Loss

Centres Pty Ltd v I Margolina,11 by reference to some of the examples included in a note to that

exclusion (underlining added):

“It seems clear enough that the legislature intended to exclude bonus payments which are

contingent, either because they depend on performance in some way or because

management reserves the right to modify or discontinue them.”

[78] The Applicant submitted there was no ‘allowance’ paid to Mr Laurence regardless of

whether he travelled for work or not. Instead, he says he would “submit to accounts the cost of

the flights and receive a reimbursement for this amount”.

[79] The Applicant submitted as observed by Commissioner Williams in Ablett v Gemco Rail

Pty Ltd, “[s]ection 332(2)(b) of the Act expressly excludes reimbursements to an employee

from the calculation of an employee’s earnings”.12 The Applicant submitted the amounts here

are properly characterised as reimbursements, and for that additional reason, the amounts are

not to be attributed to the Applicant as earnings.

[80] The Applicant submitted the Respondent’s submissions refer to the case of Chieng v Rio

Tinto Aluminium Limited, where consideration was given to the payment of a RATA. However,

in that case the Applicant was able to receive the entitlement to the RATA paid out and treated

as wages. Accordingly, as the Respondent submitted in that case, the RATA “could not be

considered a reimbursement or an amount which cannot be determined in advance”, which was

accepted by the Commissioner. The Applicant submitted that was not the case for Mr Laurence,

who received only reimbursements for the costs of his travel for work that were actually

incurred by him.

[81] Furthermore, it was submitted by the Applicant that the amounts reimbursed to Mr

Laurence for flights were business related costs, and not payment for his work or services, and

so do not constitute ‘earnings’ under s.332 of the Act. As summarised by Deputy President

Binet in James Pasznicki v Expro Group Australia Pty Ltd (underlining added):13

“In Davidson v Adecco Australia Pty Ltd T/A Adecco [2012] FWA 8393 (Davidson

Case), Commissioner Booth found in the circumstances of that case that the travel

allowance paid to the employee was not wages because the allowance was paid in

contemplation of offsetting the employee’s expenses in providing, running and

maintaining his own vehicle for the purposes of performing his duties. According to

Commissioner Booth, the allowance recompensed the employee for business related

costs and therefore could not be categorised as a payment for his work and services.”

[2023] FWC 2425

14

[82] The Applicant submitted as discussed by the Full Bench in Sam Technology Engineers

Pty Ltd v Bernaudou (Bernaudou), understood in light of the purpose of s 382(b)(iii):14

“In this context, ‘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.”

[83] The Applicant submitted both of those observations are equally applicable to Mr

Laurence’s reimbursement for flights undertaken for work-related travel. It was submitted that

to the extent the Commission retains any discretion to include the amounts pursuant to

regulation 3.05(6) of the Fair Work Regulations, it should exercise its discretion not to do so,

given their character as reimbursements for business-related expenses of work travel.

[84] The Applicant submitted accordingly, the ‘flight allowance’ contended for by the

Respondent should not be included in assessing whether the Applicant exceeded the high

income threshold.

[85] Mr Aldridge was asked about the Respondent paying for the cost of flights after

receiving invoices for flights from the Applicant. Mr Aldridge accepted there was a

reimbursement by the Respondent for flights. Mr Aldridge did not agree with the proposition

that there was no agreement that the cost of flights would be limited to $20,000. He said the

cost was in excess of $20,000 but that it was too late to raise any objections. It was put to Mr

Aldridge that the Applicant was not entitled to be paid out the balance of the $20,000 if the

costs of flights had been less than $20,000. Mr Aldridge replied that had the costs of the flights

been less than $20,000 he would have paid out up to the $20,000 of the bonus.

[86] Mr Aldridge was asked whether he accepted that the Respondent could have decided to

no longer meet the costs of the flights because it was a trial only, and that he was doing the

Applicant a favour but he could have changed his mind. Mr Aldridge said he paid Mr Laurence

a $20,000 bonus, and the payment for the cost of the flights was in lieu of the $20,000 bonus.

[87] Mr Laurence said in his oral evidence that his understanding of the discussion with Mr

Aldridge concerning the working arrangements and flights was that he investigated the cost of

flights between the Gold Coast and Albury and they were approximately $500 to $600 return,

and that was the only conversation they had about any monetary value of the flights. Mr

Laurence did not recall any agreement about an overall figure. Mr Laurence said in practice he

would purchase the flight on his personal credit card and submit the invoices or flight tickets to

the bookkeeper and the money would be reimbursed into his personal bank account.

[88] Mr Laurence accepted that he received a $20,000 management bonus in 2021, and 2020

however he said he could not recall if he did in 2019. He agreed he did not get a $20,000

management bonus in 2022. It was put to Mr Laurence that in the context of having received

management bonuses of $20,000 in 2020 and 2021 that Mr Aldridge said he would pay for the

flights up to $20,000. It was put to Mr Laurence he would have thanked Mr Aldridge. Mr

Laurence said he did not recall saying it. He said the only conversation he recalled was about

the flights being $500 to $600 per week.

[2023] FWC 2425

15

[89] Mr Laurence accepted he was paid by one of two ways, the first being where he directly

paid for the flights and he submitted evidence and the Respondent paid the amount into his bank

account. It was put to Mr Laurence that the total value of this was $21,641.60 based on

documents provided by the Respondent. Mr Laurence said he hadn’t checked the figures so

could not answer whether this was correct.

[90] Mr Laurence agreed the second method was by paying through the use of a corporate

credit card issued to Mr Laurence by the Respondent and he used it for flights between the Gold

Coast and Albury. Mr Laurence was referred to extracts from his corporate credit card account

and he accepted that the total cost of the flights was $5,780.

[91] He agreed the total cost of flights to the Respondent was $27,426.92 subject to the

calculations being correct. In re-examination Mr Laurence said the $27,426 figure is closer to

his recollection of the discussion being about $500 to $600 per week.

Car parking permit of $1,727.27

[92] The Respondent submitted they paid for an annual parking permit at the Albury airport

for the Applicant’s private vehicle. The Respondent submitted that it is clearly an amount

applied on the Applicant’s behalf, for the purposes of s. 332(1)(b) of the Act, and is exclusively

for his benefit. The Respondent submitted it ought to be included as part of the Applicant’s

earnings.

[93] The Applicant submitted he has only received payment of car parking fees to meet an

expense that was incurred for the purposes of commuting to work. As Mr Laurence says in his

statement, this expense was covered to ensure that he could “complete the requirements of my

role and, as such, was for the sole benefit of the Employer”.

[94] The Applicant submitted the Respondent has not provided any compelling reason to

accept a contrary view.

[95] The Applicant submitted instead, the Respondent’s submissions concede that the

parking fees were paid so that the Applicant could keep his car at the Albury airport, which car

“[t]he Applicant then drove while he was working in Wodonga”.

[96] The Applicant submitted applying the principle outlined in Bernaudou (extracted

above), the car parking payment was purely to meet an expense incurred by the Applicant in

doing his work, and the amount should not be considered as part of the Applicant’s earnings.

[97] Mr Aldridge said the Respondent did not agree to pay for the Applicant’s parking

permit, but he was aware that the Respondent did pay for it. Mr Aldridge agreed the Respondent

could have stopped paying for the permit on the basis the arrangement was a trial arrangement.

[98] Mr Aldridge was referred to his answer to a question where he said he did not agree to

the payment of the parking permit. Mr Aldridge was asked when he learned of the payment

and Mr Aldridge replied after Mr Laurence had finished working for the Respondent.

[2023] FWC 2425

16

[99] Mr Laurence accepted that the Respondent paid for the cost of a car parking permit for

him to park his personal car at the Albury Airport, which he said was an Audi. He agreed he

used this Audi for work purposes when he was in Victoria and he used his Motor card for fuel,

but did not recall using it for repairs. It was put to Mr Laurence he did not seek the permission

from Mr Aldridge for payment of the car parking permit. Mr Laurence said he submitted the

costs for reimbursement to the bookkeeper, and Mr and Ms Aldridge approved the

reimbursement. He said he did not specifically ask for permission but he followed the process

he always followed of submitting invoices for approval.

Personal allowance of $2,400.00

[100] The Respondent submitted that as part of the terms of his employment, the Respondent

provided the Applicant with a monthly allowance of $200.00, which he could spend on

whatever he pleased.

[101] The Respondent submitted this is clearly an amount applied on the Applicant’s behalf,

for the purposes of s. 332(1)(b) of the Act. It was exclusively for his benefit and ought to be

included as part of the Applicant’s earnings.

[102] The Applicant submitted the Respondent alleges that the Applicant had available an

allowance of $200 a month. However, the Respondent, who bears the onus of establishing

the jurisdictional objection, has not provided any detail as to:

  1. How much of the allowance it alleges was actually spent by the Applicant during the

relevant time period; or

  1. How much of the amounts actually spent related to non-work related costs (as

opposed to payment of work-related expenses) that could satisfy the definition of

‘earnings’.

[103] The Applicant submits that, contrary to the Respondent’s submission, it cannot be

assumed that simply because an amount may have been available to spend, that it actually was

all spent, let alone spent for non-work purposes that could constitute earnings per s.332 of the

Act.

[104] The Applicant submitted Mr Laurence’s evidence is that he was merely “permitted to

spend $200 per month on personal expenses” (and not that he actually did so); that he used the

card for “mixed purposes” which included “work-related expenses such as coffee or dinners for

work- related meetings or with team members”; that he “did not keep records in respect of what

proportion of the expenses were personal and which were work-related”; and that he was “never

refunded the unspent balance of any of the allowance”.

[105] The Applicant submitted in the absence of the Respondent alleging any specific figures

/ providing an account in the aforementioned regard, the Applicant submits that no sum should

be attributed for this alleged component as earnings of the Applicant.

[2023] FWC 2425

17

[106] It was put to Mr Aldridge that nothing was provided by the Respondent of evidence of

the calculation of what was spent by Mr Laurence for personal purposes. Mr Aldridge said he

was not sure.

[107] It was put to Mr Aldridge that despite his supplementary statement saying there never

was an unspent balance on Mr Laurence’s monthly allowance, the documents to support that

claims are not provided. Mr Aldridge said it could be but he was not sure.

[108] Mr Laurence accepted that each month he was provided a personal allowance of $200

and also accepted he was entitled to spend it on whatever he pleased. He accepted he did spend

amounts on his corporate credit card. It was put to Mr Laurence he never sought the refund of

any unspent amount. He said he was not aware he could. It was put to Mr Laurence that the

reason he did not seek reimbursement for unspent amounts was because he spent the entire

amount. He did not agree with that.

Clothing allowance of $2,321.88

[109] The Respondent submitted the Applicant was not required to wear a uniform at work

and did not do so. He wore ordinary clothes of his choice. Regardless, the Respondent paid him

an annual allowance for clothing, in the amount of $2,321.88.

[110] The Respondent submitted this was an amount applied on the Applicant’s behalf, for

the purposes of s.332(1)(b) of the Act. It was exclusively for his own benefit and unrelated to

the requirements of his employment. Accordingly, it ought to be included as part of the

Applicant’s earnings.

[111] The Applicant submitted contrary to the Respondent’s submission, payment for clothing

was not “exclusively for his own [the Applicant’s] benefit and unrelated to the requirements

of his employment”.

[112] The Applicant submitted instead, the evidence of Mr Laurence is that “Mr Aldridge

expected his senior management to wear business attire to meet the Employer’s standards” and

accordingly it is “patently false to say that there was no workplace dress code”. The clothing

purchased by the Applicant was “only worn for the workplace and to meet Mr Alridge’s

expectations”.

[113] The Applicant submitted the cost of such clothing was a reimbursement as expressly

excluded from the concept of earning by s.332(2)(b) of the Act, and not an amount received for

work done (per Bernaudou, extracted above). As Mr Laurence’s statement says, “I would

submit to the accounts team the cost of any business attire purchased for work purposes and

receive a reimbursement for this amount, or I would use the corporate credit card”.

[114] The Applicant submitted contrary to the Respondent’s submissions, Mr Laurence’s

evidence is that there “was no set ‘allowance’ from the Employer’ merely reimbursement

for expenditure incurred in purchasing the required clothing”. Further, there was no

entitlement to receive any amounts directly – as he says, “I was never refunded the unspent

balance of any allowance”.

[2023] FWC 2425

18

[115] It was put to Mr Aldridge that he had an expectation that employees would dress

professionally for work and he agreed. It was put to him that the Respondent had agreed to

meet the cost of clothing for that purpose and he said no. It was put to Mr Aldridge that he was

aware that Mr Laurence had submitted costs for professional clothing and he said afterward he

was. He said he did not raise an objection because he did not know at the time. He said Mr

Laurence had already left his employment when Mr Aldridge found out.

[116] Mr Laurence said part of McDonalds policy was that uniforms were paid for and that

arrangement continued into his more senior leaderships roles as an operations manager and then

into the role of General Manager. He said the previous Operations Manager in his position was

told to dry clean his clothes and Mr Aldridge paid for that, and another operations manager was

told to wear more professional attire which the Respondent paid for. Mr Laurence said clothing

was paid for with the corporate credit card or reimbursed.

[117] Mr Laurence agreed that in his role as a general manager he did not wear a uniform,

however he said he wore specific business attire. He agreed these items of clothing could be

worn out of work and he did on occasion. He agreed he was paid an amount of $2,321.88.

CONSIDERATION

[118] The High Income Threshold at the time of termination was $162,000. As a General

Manager, Mr Laurence was not employed under a Modern Award or enterprise agreement. It

is apparent from the evidence the employment contract was a verbal agreement. There is no

dispute that Mr Laurence’s annual salary of itself was $144,043.95 as at the time of his

termination. The difference between this amount and the high income threshold is $17,956.05.

[119] A sum of $4,986.14 was paid out on termination for working on public holidays and

where days were not taken as time in lieu. The Respondent submitted this amount should be

counted as earnings. I have determined that the $4,986.14 amount is not an amount that can be

determined in advance and on that basis, should not be included.

[120] The Respondent estimated that use of the VW Touareg was to value of $31,112.90. Mr

Laurence did not dispute the kilometres travelled in the vehicle in respect of the period 21 June

2022 when it left Victoria and 21 April 2023 when it was collected. The Respondent relies on

a per kilometre rate of 78 cents in accordance with the ATO Guidelines. It was submitted for

Mr Laurence that not a lot turns on the ATO kilometre rate however it had submitted that the

72 cents rate from the previous year pertained to at least some of the period. The 78 cent rate

applied from 1 July 2022 and therefore the vehicle was only in Queensland for the last week of

the previous financial year when the 72 cent rate applied. There is also no dispute concerning

the value of the vehicle at $31,000.

[121] The dispute concerns whether the value of the vehicle is attributable to Mr Laurence or

to be shared between Mr and Ms Laurence. It is submitted for Mr Laurence that even if Ms

Laurence did not remain an employee of the Respondent once she had moved to Queensland,

personal use of the vehicle by Ms Laurence was not personal use by Mr Laurence and therefore

cannot be attributed to Mr Laurence as personal use by him, and the evidence is that the majority

of the use of the vehicle was by Ms Laurence. I accept on the basis of the evidence that the

performance of Ms Laurence’s full-time employment with the Respondent did come to end

[2023] FWC 2425

19

when she moved to Queensland, and she did not continue as an employee of the Respondent as

a casual after she had moved to Queensland. It appears an agreement was made that she would

continue to receive accrued entitlements from her former role paid out on a weekly basis until

they were fully exhausted in August 2022. The evidence of Mr Aldridge is that the vehicle was

provided to Mr Laurence alone as part of his remuneration package. This is supported by the

FBT report as it lists Mr Laurence as the employee for whom the FBT report was prepared, and

Mr Laurence signed the document. Ms Laurence’s evidence was she did not ever recall having

to sign such a document. It is also supported by the Vehicle Condition Report which the

evidence indicates was provided by Mr Laurence.

[122] I accept on the evidence Mr Laurence left the car in Queensland for his wife to use and

that is a cost that the Respondent bore as part of Mr Laurence’s remuneration package. It is

apparent that Ms Laurence was not using the vehicle for any purpose in connection with a role

performed for the Respondent and she had ceased employment.

[123] Having considered the evidence, I prefer the evidence of Mr Aldridge over that of Mr

Laurence concerning the agreement made between Mr Aldridge and Mr Laurence concerning

the vehicle, that being that it was provided for the benefit of Mr Laurence and was not intended

to be provided on the basis that it was for the benefit of both Mr and Ms Laurence as part of

their separate employment arrangements. Mr Aldridge was clear in his evidence that the vehicle

was provided to the Applicant alone. Mr Laurence’s claim that there was an agreement that it

intended that the vehicle was being provided by the Respondent for the benefit of both himself

and his wife seems less likely to be true than Mr Aldridge’s account of the understanding. I am

persuaded to prefer the evidence of Mr Aldridge because on several occasions in the course of

his evidence concerning this issue, and other key areas of disagreement, Mr Laurence could

not recall whether particular discussions did or did not occur, whereas Mr Aldridge was more

certain during his evidence. There is no compelling evidence that a vehicle was intended to be

part of Ms Laurence’s remuneration package. Ms Laurence was clear in her evidence that her

belief that the car was also for her benefit based on what her husband had told her, and not

based on anything said to her by anyone else from the Respondent.

[124] Ms Laurence’s evidence was that Mr Laurence was able to work from home in the study

and when working in Queensland. It appears from the evidence when the vehicle provided to

Mr Laurence was left in Queensland and being used for private use by his wife, when he was

in Victoria he used his personal vehicle, for which the Respondent also paid for the fuel

required, and also for parking at the airport.

[125] I also prefer the evidence of Mr Aldridge that there was an agreement between Mr

Aldridge and Mr Laurence that rather than Mr Laurence receiving a $20,000 management

bonus, the Respondent would pay for flights to Victoria from the Gold Coast to the sum of the

same amount. Mr Laurence accepted he received a management bonus of $20,000 in 2020 and

2021 and did not receive a $20,000 management bonus in 2022. It seems to be more likely,

and I accept, that Mr Aldridge and Mr Laurence made an agreement that the $20,000 bonus

payment previously paid in 2021 and 2020 would be paid to meet the cost of Mr Laurence

travelling to and from work instead of as a bonus after the move to Queensland.

[126] The total costs of the flights which were not challenged, based on the documents in

evidence was $21,646.80 for flights directly paid for by Mr Laurence for which he sought

[2023] FWC 2425

20

reimbursement, and $5,780.12 for flights he charged on his corporate credit card, equalling a

total of $27,426.92. I accept Mr Aldridge’s evidence that the discrepancy between the $20,000

figure agreed and the additional amounts paid for flights beyond that amount can be explained

by a failure on the part of the Respondent to identify that the $20,000 figure had been exceeded

and it continued to pay the amounts either by receipt of the evidence from Mr Laurence, or by

the corporate credit card.

[127] The Respondent submitted that regulation 3.05(6)(c) is a discretionary consideration

having regard to the circumstances whether the Commission (i) should consider the benefit for

the purposes of assessing whether the high-income threshold applies, and (ii) a reasonable

money value of the benefit has not been agreed, and (iii) the Commission can estimate a real or

notional money value of the benefit.

[128] The Respondent relied on the Full Bench decision in Zappia v Universal Music

Australia Pty Ltd t/a Universal Music Australia [2012] FWAFB 6108 to support the proposition

that the costs of an employee getting to and from work are ordinarily expenses incurred by an

employee in their personal capacity, and are not work related travel, and that where an employer

meets the costs it should come within the meaning of the Fair Work Regulations 2009

regulation 3.05(6). The Respondent submitted that in accordance with regulation 3.05(6)(a) Mr

Laurence was entitled to receive, or has received a benefit in accordance with the verbal

agreement between Mr Laurence and the Respondent, and it was not a benefit for the payment

of money or a non-monetary benefit within the meaning of subsection 332(3). The Full Bench

in Zappia noted in paragraph 13 that simply because an expense is incurred, and then

reimbursed, does not necessarily make it a reimbursement for the purposes of section 332(2)(b).

The Full Bench observed that in that case the payment of a toll by the employer was a payment

for the purposes of regulation 3.05(6), and in the event it was not, the term reimbursement in

section 332(2)(b) does not contemplate reimbursement of outlays of private outgoings. It was

submitted for Mr Laurence that even putting aside the question of reimbursement, the payments

cannot be determined in advance because it was agreed there would be a reimbursement of

flights which varied.

[129] I accept that the vehicle payments are earnings because they are amounts prescribed by

the regulations. The earnings are not an entitlement for the payment of money because it was

instead the provision of a vehicle. It wasn’t a non-monetary benefit within the terms of

subsection 332(3) because subsection 332(3)(b) requires there to be a reasonable money value

that has been agreed by the employee and employer, and there was no such agreement in relation

to the value of the vehicle.

[130] I am satisfied they are a benefit which has been received, they do not fall within the

meaning of section 332(3), they should be considered for the purpose of assessing the highincome threshold, and the Commission can estimate a real or notional value of $31,112.90

minus the amount that should be deducted by assessing the period in late June 2022 to the 1

July 2022 at a rate of 72 cents per kilometre rather than 78 cents per kilometre which applied

from 1 July 2022 which would be negligible, and minus instances where Mr Laurence used the

vehicle to visit the post office to collect mail. Mr Laurence also said he used the vehicle to

attend cafes which had a better internet connection however this was contradicted by the

evidence of Ms Laurence who said Mr Laurence conducted his work including conducting

meetings and reading emails from their home office. I reject the submission that the times when

[2023] FWC 2425

21

Ms Laurence was using the vehicle cannot be counted. Those times were private use of the

vehicle that Mr Laurence was aware of and condoned by him, and he was well aware the cost

of that private use was borne by the Respondent and not by himself or his wife. The evidence

supports the conclusion that the vehicle was predominantly driven by Ms Laurence while it was

in Queensland. The two reductions referred to above to the Respondent’s figure would only

very slightly reduce the figure of $31,112.90 for the VW Touareg. It is apparent applying these

reductions the figure would still be substantially above the figure of $17,956.05 which is the

additional amount required to be considered sufficient additional earnings beyond his salary to

push the Applicant above the high income threshold.

[131] I accept the Respondent’s submission concerning the flights that an agreement was

made between Mr Aldridge and Mr Laurence that he was entitled to an amount of $20,000 to

pay for his travel between the Gold Coast and Albury, and I am also satisfied that the flights

were private outgoings for the benefit of Mr Laurence that the Respondent made an agreement

with Mr Laurence to pay in order for Mr Laurence to travel from the Gold Coast to Albury for

three days a week to continue working for it, despite having moved to the Gold Coast . On that

basis I am satisfied that the amount of $20,000 can be included as an amount falling within the

meaning of subsection 332(3)(b). However. if I am wrong about that and there was no such

agreement, I would in those circumstances be satisfied that the higher amount of $27,426.92

should be included for the purposes of determining whether Mr Laurence has exceeded the

high-income threshold as the payments would have been additional payments pursuant to

regulation 3.05(6) as I am satisfied that they should be considered, and if I am wrong in relation

to the $20,000 agreement, then a reasonable money value was not agreed, and the Commission

can estimate a real or notional value based on the evidence of $27,426.92.

[132] Given my conclusions above concerning the vehicle amounts and the flight payments,

any further consideration of the issues in dispute is unnecessary as it is already clear that I have

concluded on either of vehicle or flight issues on their own, Mr Laurence has exceeded the

high-income threshold, and on account of both he has far exceeded the high income threshold.

However, for completeness I would also accept that the car parking permit was in the nature of

a personal benefit that would constitute earnings. I am not satisfied on the available evidence

that the personal and clothing allowances should be counted.

[133] I have concluded that Mr Laurence’s earnings far exceed the high income threshold of

$162,000 given I have concluded that both the flights and vehicle amounts should be included

in the assessment of his earnings. On that basis the unfair dismissal application is dismissed as

the Commission has no jurisdiction to deal with it. An order will be issued separately and

concurrently with this decision to that effect.”

 

Laurence v NGI Holdings Pty Ltd [2023] FWC 2425 delivered 20 September 2023 per Simpson C