High income threshold; assessing value of vehicle

Here is an extract from a recent case of the Fair Work Commission which explains how to value the provision of vehicle supplied for work and private use for the purposes of calculating the annual earnings in the context of the high income threshold.

“Legislative framework and legal principles / approach

[17] Section 332(1)(c) provides that earnings include the agreed money value of any non-monetary benefits. Regulation 3.05(6) of the Fair Work Regulations 2009 (Cth) provides that, where there is no agreed amount for a non-monetary benefit, the Commission may estimate the value of the benefit.

[18] As observed, there was no value agreed between the parties for the Applicant’s private use of the Vehicle. As observed, regulation 3.05(6) allows the Commission to make a determination as to the value of the benefit of the Vehicle. It relevantly provides:

Benefits other than payment of money

(6) If:

(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and

(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and

(c) the FWC is satisfied, having regard to the circumstances, that:

(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and

(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and

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

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

[19] It has been accepted that, where an employee is provided with a fully maintained vehicle for use in the course of her or his employment and the employee also uses that vehicle for private use, the value of that private use can be included in the employee’s annualised earnings. 11

[20] In the absence of an agreed sum, the process generally used to determine the value of the use of a company vehicle is that described in Kunbarllanjnja Community Government Council v Fewings (Fewings). 12 The ‘Fewings approach’ is as follows:

  1. a) determine the annual distance travelled by the vehicle in question;
  2. b) determine the percentage of that distance that was for private use;
  3. c) multiply the above two figures to obtain the annual distance travelled for private purposes;
  4. d) 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; and
  5. e) multiply the annual distance travelled for private purpose by the estimated cost per kilometre. The result is the value of the motor vehicle component of the remuneration.

[21] The Full Bench in Fewings further observed that the party advancing the proposition that an applicant is excluded from the relevant provisions of the Act (protection from unfair dismissal) carries the burden of establishing the evidentiary basis upon which such a determination can be made. 13

[22] In Sam Technology Engineers Pty Ltd v Bernadou, 14 the Full Bench observed that it did not take issue with the method of apportionment adopted by the Full Bench in Fewings and considered it entirely appropriate for circumstances in which an employee had a company-supplied vehicle (from which she or he derives a benefit) and a reasonable monetary value had not been agreed for its private use. It continued, that the Fewings method of apportionment was appropriate to enable the Commission to estimate the real or notional value of the benefit, in the manner contemplated by regulation 3.05(6) of the Regulations, which deals with benefits other than the payment of money…………………………

Consideration

[39] I accept that the appropriate approach to adopt in this matter is the method of apportionment adopted by the Full Bench in Fewings. Clearly, Mr Welk had a company-supplied vehicle (from which he derived a benefit) and a reasonable monetary value had not been agreed for its private use.

[40] Further, in the absence of argument to the contrary, I consider that the vehicle running cost information produced by the RACV represents the best information before me of the running costs of the Vehicle.

[41] I accept the Respondent’s submissions regarding the application of the apportionment method, observing that two months were not included due to a lack of records. Those two absent months appear to cover the period of March 2019, in which Mr Welk states he was absent on leave. During the course of the hearing, Mr Welk gave evidence of further absences, including a period of two weeks from approximately 2 April to 22 April 2019. However, given that the calculations conducted by the Respondent were premised on ten months rather than the twelve, I am of the view that the leave taken by Mr Welk has been accommodated.

[42] While Mr Welk submitted that he performed work while travelling to and from his residence to site, by mentoring Mr Brotherton, I am unpersuaded that such dialogue formed part of his duties. There was no evidence before me to suggest that Mr Welk was obliged, or for that matter had been instructed, to undertake this role whilst driving to and from work.

[43] Mr Welk pointed to the unreliability of data concerning refuelling. According to Mr Welk, others had access to his Employee ID for refuelling purposes. However, having heard the evidence regarding the use of the Key and the Employee ID, and having little evidence before me to show that others had assumed use of the Vehicle in periods where Mr Welk was on R&R or driving to and from work, I consider that data is not so affected that it cannot be relied upon to arrive upon the conclusion drawn in this matter.

[44] On Mr Welk’s best-case scenario, if the Commission were to accept this, he derived the value of $3,081.31 for the Vehicle, then this would still place his earnings above the high income threshold.”

Welk v SG Mining Pty Ltd (2020) FWC 2513 delivered 19 June 2020 per Beaumont DP