This very useful decision of the Fair Work Commission involves an analysis and practical application of the relationship between the high income threshold, the application of any applicable modern award or enterprise agreement and protection against unfair dismissal.
“Unfair dismissal; jurisdictional objection; high income threshold; enterprise agreement; award; not protected from unfair dismissal; application dismissed
1 Issue and outcome
[1]
Mr Gary Parremore (the Applicant) has made an application under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Applicant is a former employee of Eastern Guruma Pty Ltd (the Respondent), having worked there as a supervisor during the period of 3 October 2022 to 4 February 2026. The Respondent has objected to the application on the basis that the Applicant was not protected from unfair dismissal because his employment was not covered by a modern award or enterprise agreement and his annual rate of earnings, exceeded the high income threshold of $183,100.00. Whilst the Respondent presses that the Applicant’s dismissal was by way of genuine redundancy, this decision only addresses the jurisdictional objections that the Applicant was neither award nor agreement covered, and his income was not below the high income threshold.
[2]
The Respondent is a civil and mining contractor that provides mine site rehabilitation, integrated services and mine site services in the Pilbara region of Western Australia. It is uncontroversial that the Applicant, when a supervisor for the Respondent, reported into a Project Manager at the Paraburdoo & Channar project. The four project managers of the Respondent reported into the mining and civil operations manager, who regularly reported into the Respondent’s executive director.
[3]
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of their dismissal:
(a)
the person is an employee who has completed the minimum employment period; and
(b)
one or more of the following apply:
i.
a modern award covers the person;
ii.
an enterprise agreement applies to the person in relation to the employment;
iii.
the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
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DECISION
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[4] It was not disputed and I am satisfied, that the Applicant had served the minimum
employment period and had been dismissed. It follows that if the Applicant establishes he was
covered by an industrial instrument or his annual rate of earning was less than the high income
threshold, or rather, if the Respondent is unable to succeed with its argument concerning the
Applicant’s earnings and coverage by an industrial instrument, the Respondent’s objections in
this regard will be dismissed.
[5] Whilst the parties indicated a preference to proceed to hearing, neither party required
the witnesses of the other for cross-examination.
[6] Briefly stated, having considered the evidence and the submissions provided, I have
found the Applicant’s earnings were not less than the high income threshold, the Applicant was
not covered by a modern award and an enterprise agreement did not cover and apply to him in
his former employment. Therefore, the jurisdictional objections must be upheld. As the
Applicant is not a person protected from unfair dismissal, his application is dismissed.
Accordingly, an Order1 to this effect issues concurrently with this decision. My detailed reasons
follow.
2 Protection from unfair dismissal
[7] The phrase ‘protected from unfair dismissal at a time if, at that time…’ in s 382 of the
Act, means that an employee must show that, at the time of their dismissal, their employment
circumstances (i.e. coverage by a modern award, applicability of an enterprise agreement or
amount of rate of earnings) met the criteria in s 382 of the Act. The Applicant contends that an
enterprise agreement applied to him in relation to his former employment in addition to his
income being less than the high income threshold. Whilst the Applicant does not appear to
press that he was covered by a modern award, I have, for completeness, addressed all factors in
s 382(b) of the Act, starting first with whether an enterprise agreement applied.
3 Enterprise agreement
[8] An enterprise agreement applies to an employee if the agreement is in operation, it
covers the employee and no other provision of the Act provides, or has the effect, that the
agreement does not apply to the employee.2 An enterprise agreement covers an employee if
the agreement is expressed to cover them.3
[9] To resolve whether an enterprise agreement applied to the Applicant in relation to his
former employment, it is necessary to consider the terms of the Eastern Guruma Pty Limited
Enterprise Agreement 2014 (Guruma EA).4
[10] It is uncontroversial that the Respondent is covered by the Guruma EA, the Guruma EA
has not been terminated and therefore remains in operation and the Guruma EA covers the
employment of persons employed by the Respondent in a classification listed in Schedule 1 and
Schedule 2 who perform work on the Respondent’s projects or work sites.5 Further, clause
13.2(d) of the Guruma EA provides that an employee is paid on the basis set out in Schedule 1
or Schedule 2 as determined by the Company in its sole discretion, and that the basis of payment
will be specified in the Project Assignment Letter along with the employee’s classification.
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[11] Schedule 1 of the Guruma EA provides the following classifications which are mirrored
in Schedule 2:
Classifications
Classification Applicable Levels
Plant Operator 1-5
Fixed Plant Operator 1-5
TA 1-5
Labourer 1-5
Heritage Surveyor/Advisor 1-5
Rigger/Scaffolder 1-5
Dogman 1-5
Maintenance Worker 1-5
Maintenance Fitter 1-5
Belt Crew 1-5
Utility Worker 1-5
Telecommunications Worker 1-5
Hospitality Worker 1-5
Driller 1-5
Drilling Offsider 1-5
Cleaner 1-5
Cook 1-5
Chef 1-5
Storeperson 1-5
Crane Operator 1-5
Shot Firer 1-5
Qualified Tradesperson/Specialist 6
Leading Hand/Supervisory 7
[12] The Applicant contends that his role of ‘supervisor’ should be considered to fall within
the meaning of the ‘Leading Hand/Supervisory’ classification which is listed in Schedule 1 and
2 of the Guruma EA.
[13] It is uncontroversial that the interpretation of an enterprise agreement ‘turns upon the
language of the particular agreement, understood in the light of its industrial context and
purpose’.6
[14] In Amcor Ltd v Construction, Forestry, Mining and Energy Union,7 Kirby J, at
paragraph [66] described a contextual approach to the interpretation of a workplace agreement
in the following way (footnotes omitted):
All of these are useful details of a background character. All are relevant in the construction of
the Agreement’s critical clause, the meaning of which is primarily in issue in these appeals (cl
55.1.1). In the interpretation of the Constitution and of legislation, Australian courts have passed
beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to
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give meaning to contested language considered in isolation from the context in which the words
are used and the purpose for which the words were apparently chosen. Nowadays, the same
insistence on context, as well as text, permeates the approach to interpretation that is taken to
legally binding agreements. Indeed, before this approach became normal in the courts, in the
interpretation of contested instruments it was often the approach adopted for the construction of
industrial texts. This was in keeping with an inclination of such tribunals towards practical, as
distinct from purely verbal, constructions in that area of the law’s operation.
[15] In an oft cited paragraph, the Full Bench of the Commission in The Australian Workers’
Union v Orica Australia Pty Ltd8 summarised the relevant principles in the following terms:
The construction of provisions of an enterprise agreement begins with a consideration
of the ordinary meaning of the words, read in context, taking account of the evident
purpose of the provisions or expressions being construed. Context may be found in the
provisions of the agreement taken as a whole, or in their arrangement and place in the
agreement. The statutory framework under which the agreement is made or in which it
operates may also provide context, as might an antecedent instrument or instruments
from which a particular provision or provisions might have been derived. The industrial
context in which an agreement is made and operates is also relevant. Thus, the language
of an agreement is to be understood in the light of its industrial context and purpose, not
in a vacuum or divorced from industrial realities. But context is not itself an end, and a
consideration of the language contained in the text of the agreement remains the starting
point and the end point to the task of construction. A purposive approach to
interpretation is appropriate, not a narrow or pedantic approach.9
[16] It is evident from the plain language of Schedule 1 (composite hourly rate base) and
Schedule 2 (base hourly rate and penalty base) that an employee within the classification of
‘Leading Hand/Supervisory’ attracts ‘Applicable Level 7’. This therefore indicates that
whether the role is that of a ‘Leading Hand’ or is ‘Supervisory’ under this classification, there
is an equivalency in the value assigned to the duties and responsibilities of the position title that
falls within the scope of that classification. It is therefore difficult to conceive of a circumstance
where the classification entertains both the position of ‘Leading Hand’ and ‘Supervisor’ in the
Respondent business as this would require the position of ‘Leading Hand’ to assume the same
or equivalent duties and responsibilities as that of a ‘Supervisor’ – hence the equivalency of
value.
[17] As it is, the nomenclature of the classification does not adopt the word ‘Supervisor’.
Instead, reference is made to the word ‘Supervisory’, an adjective, not a noun, reinforcing the
proposition that the word ‘Supervisory’ should be interpreted to mean any other role that is
equivalent to a Leading Hand, in that the person is working on the tools or in the field, but also
has incidental supervisory duties but is referred to as something other than a ‘leading hand’.
[18] This point of equivalence is illustrated further when the broader context of Schedule 1
and Schedule 2 are considered. Other classifications that include a classification descriptor
broader than one ‘role’ or ‘position’ are those of Heritage Surveyor/Advisor – level 1-5,
Rigger/Scaffolder – level 1-5, and Qualified Tradesperson/Specialist – level 6. Again, the plain
language is suggestive of an equivalency in the value assigned to the duties and responsibilities
of the identifiable ‘role’ within the classification ‘descriptor’ but unlike the classification of
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‘Leading Hand/Supervisory’, there is an identifiable role (a noun) for both ‘positions’ rather
than an adjective having been assigned.
[19] The Respondent submits that the plain language used in clause 13.1, read with Schedule
1 and Schedule 2, supports the inference that employees may be expected to commence
employment in a lower classification role, and that if supervisory responsibilities are added to
their role, then the addition of a supervisory function is reflective of a more senior and
experienced classification level under the Guruma EA as an ‘Applicable level 7’. For example,
if a qualified tradesperson who is normally a level 6 under Schedule 1 or 2, is given supervisory
duties that are incidental to their trade role, then they are classified at the higher ‘Applicable
level 7’ classification (whether they are called a Leading Hand or something else). When clause
13.1 is considered in this context, the interpretation advanced by the Respondent appears
correct. Although it is not the case that the Guruma EA precludes an employee from
commencing employment in an Applicable Level 7 classification.
[20] In my view, the level 7 Leading Hand/Supervisory classification is to be read to refer to
roles that have a supervisory element but are ‘in respect of’ the activities referred to in Schedule
1 and Schedule 2, and are otherwise an operational or trade role that is contemplated in other
listed classifications. The classification is an extension of, or progression from, the lower-level
trade or operational roles which are listed within the same two schedules.
[21] Accordingly, the references in Schedule 1 and Schedule 2 of the Guruma EA to a
classification of ‘Leading Hand/Supervisory’ should not be understood to refer separately to a
‘Leading Hand’ and to a role of ‘Supervisor’.
[22] The Applicant was employed by the Respondent as a ‘supervisor’ pursuant to a contract
with a commencement date of 3 October 2022. Schedule 1 of his employment contract further
specified that in respect of the ‘Applicable Award and Initial Classification’ he was ‘Award
free’ and reported to the Project Manager. The Applicant’s payslips at Annexures TA-7 and
TA-8 refer to his ‘Job Title’ as ‘Supervisor’.
[23] Mr Phillip Charles Harris (Harris), the Mining and Civil Operations Manager, gave
evidence that the Applicant had been promoted to a role as supervisor at the West Angeles
project on 28 February 2025, and that the supervisor role was a site-based role, on a fly in, fly
out basis. Whilst at West Angeles, the Applicant worked eight days on and six days off and
had a ‘back-to-back’ supervisor so that one supervisor was on site at any given time. That same
project concluded in September 2025.
[24] The Applicant transferred to the Paraburdoo & Channar project around September 2025,
another site-based role, working on the basis of an eight days on and six days off roster. Again,
the Applicant had a ‘back-to-back’ supervisor.
[25] According to Harris, as a supervisor, the Applicant’s primary responsibilities included
overseeing the operators ‘on site’, making operational decisions, and reporting to the site
Project Manager. The position was an ‘S26 position’ with an essential function under the Work
Health and Safety (Mines) Regulations 2022 (WA). The purpose of the Applicant’s role was
to give direction and oversee the operators on site – with 12 -14 operators on the site at any
given time, and 8-10 operators reporting into the Applicant. The operators were responsible
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for using equipment such as excavators and bulldozers. Other on-site employees such as
engineers, safety personnel and administrative staff all reported into the Project Manager.
Harris gave the following evidence regarding the former duties and responsibilities of the
Applicant as a supervisor:
(a) attend site at the start of the day with a work crew of operators;
(b) assist with the pre-start meeting, and help perform the drug and breath testing of the
crew workers;
(c) discuss the duties the various operators would be doing and what the expectations
were for them that day;
(d) after pre-start, supervise out in the field with the operators, ensuring that operators
were working safely, using the right equipment, working at the right place on the
right task (instructions issued may include direction to an excavator operator to
move soil, direction on the use of a water cart to damp down a road to reduce dust,
or instruct a dozer operator to clear an area of land);
(e) manage human resource matters such as requests of leave or completing forms; and
(f) oversight of assets with a value in the region of $20 million (including the CAT D10
dozer).
[26] Having considered the evidence of the Applicant and the witnesses for the Respondent,
I find as follows:
(a) the Applicant was employed in the position of ‘supervisor’;
(b) the principal purpose of his former employment with the Respondent was that of
being a supervisor; and
(c) that identified principal purpose bears no meaningful relationship with the
classification criteria in Schedule 1 or Schedule 2 of the Guruma EA.
It therefore follows that the Guruma EA did not apply to the Applicant’s former employment
with the Respondent.
4 Modern award
[27] At hearing, the Applicant did not press, appropriately in my view, that whilst employed
by the Respondent he was covered by a modern award. Past decisions of this Commission have
established that supervisors are not covered by particular Awards, particularly the Mining
Industry Award 2020 (the Mining Award).10 The Mining Award only ‘travels to classifications
where the supervisory aspect element (of ‘guidance and assistance’) of the relevant positions is
very much incidental to the principal purpose of the classifications’.11 As was identified in Fry
v BHP Billiton Minerals Pty Ltd12:
[24] Indeed, the supervisory responsibilities do not form part of any of the descriptors for any
of the Levels, Entry through to Dual Trade Instrumentation.
[25] The descriptors appear to at all times apply to employees engaged in the performance of
maintenance related trades as such (without reference at all to any supervisory-type functions).
[26] That said, Level 5 of the Award refers to the Advanced Specialist, and sets out the
following descriptors:
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An employee at this level will have met the requirements for Level 4 and holds a trade
qualification used in the operation and has acquired additional knowledge by having
satisfactorily completed a prescribed post trade course appropriate for this level or the
achievement to the satisfaction of the employer of a comparable standard of skill and knowledge
by other means including in-plant training or on-the-job experience.
An employee at this level will provide guidance and assistance to others. [my emphasis]
This level applies to the following classification groups:
Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trade
Employees.
[27] It is the reference to an employee in this classification providing “guidance and assistance”
(as highlighted) which is relevant to those proceedings.
[28] But as the Respondent contends, such a bare reference alone – which also appears in the
immediately lower classification – cannot be taken as being a reference to the Award covering
employees whose positions are principally supervisory in purpose. If this were to be so, the
Award would extend into areas in which award coverage has not extended.
[29] That is, a reading of the coverage of the Award in these terms would mean the Award had
been made in contravention to s.143(7) of the Act and in disregard of the paragraph 2(a) of the
Consolidated Award Modernisation Request (“the Request”): both of which indicate that
Modern Awards must not be expressed to cover classes of employees who, because of the
seniority of their role, have traditionally not been covered by awards.
[30] Of course, I do not think the Award was made in contravention of the Act or the Request.
Instead, in my view, the reference to an employee providing “guidance and assistance to others”
is not to be taken to be a reference to employees of such seniority that their positions are for the
principal purpose of providing supervision. The evidence demonstrates that this was the
principal purpose of the Applicant’s position.
[31] This is not to suggest that all Modern Awards do not extend into classifications involving
supervisory functions of varying degrees. But the coverage of the Mining Industry Award 2010
travels only to classifications where the supervisory element (of “guidance and assistance”) of
the relevant positions is very much incidental to the principal purpose of the classifications.
[28] It follows that no modern award covered the Applicant whilst employed by the
Respondent.
5 Annual rate of earnings and other amounts less than the high income threshold?
[29] There is no dispute between the parties that the Applicant’s gross annual salary under
his contract of employment was $155,250.00 (base salary) and that in addition to his base
salary, his employment contract provided for a site uplift allowance of 30% of his base salary.
The Applicant pressed that the uplift was only paid for work on site, and that any work at the
office, personal leave, or annual leave, was not covered by the site uplift allowance.
[30] The Respondent and Applicant broadly agreed that the answer to whether the
Applicant’s annual rate of earnings falls below the high income threshold will depend upon
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whether the 30% site uplift entitlement contained in the Applicant’s employment contract is to
be included within the definition of ‘earnings’ under s 382 of the Act. It is the Respondent’s
argument that the site uplift entitlement falls within the meaning of ‘earnings’.
[31] The Applicant’s employment contract sets out at clause 10 that he will be paid the salary
as outlined in Schedule 1 (which is exclusive of superannuation). At clause 14 of the
employment contract, provision is made to pay the Applicant a bonus or other discretionary
payment. However, a bonus or other discretionary payment is, as the contract provides, at the
Respondent’s absolute discretion. At Schedule 1 the Applicant’s annual gross salary is stated
as $150,000 per annum (subsequently increased by variation to $155,250.00 on 8 July 2025).
The ‘Additional Benefit’ provided to the Applicant under Schedule 1 is the ‘30% site uplift
applies when allocated to site and on site’. In addition, Schedule 1 sets out that the Applicant’s
roster is ‘8:6 FIFO Roster’ which includes ’12 Ordinary Hours per day (averaged over the
rostered on days), and that the Applicant’s position title is ‘Supervisor’ reporting to a ‘Project
Manager’. Clause 2(iv) of the employment contract sets out that the initial work location of the
Application was outlined in Schedule 1, and that the place of the Applicant’s work may be
varied by the Respondent in accordance with operational requirements. Clause 2(iv) further
provided that that the Applicant would ‘not be entitled to additional remuneration if so
required’. Regarding the Applicant’s ‘[i]nitial work location’, Schedule 1 of the employment
contract provided that the location was ‘West Angeles’ and ‘Bulwer Street, Perth’ or ‘as
otherwise directed, agreed upon and allocated to’.
[32] By letter of 15 September 2025, the Respondent notified the Applicant that effective
9 September 2025 his ‘Project location’ was changed to ‘Paraburdoo & Channar Rehab’. All
other conditions of his employment remained unchanged. The evidence of Harris, which was
not disputed, was that the Applicant’s role was site based at the Paraburdoo & Channar project
and that the role that he had previously occupied was also site based. Further, there was no
evidence to suggest that the Applicant worked anything other than a 8 days on and 6 days off
roster, on a FIFO (fly in fly out) basis.
[33] Assessment of the high income threshold involves two considerations. First,
consideration needs to be given to the Applicant’s annual rate of earnings, which requires an
examination of several factors, including those set out in s 332 of the Act, and, because of a
reference in that section, potentially factors included in the Fair Work Regulations 2009 (Cth)
(the Regulations). Second, and separately, consideration needs to be given to whether there
are any amounts to be added to the person’s annual rate of earnings because of factors included
in the Regulations. The sum of these two considerations is what is compared against the high
income threshold.
[34] The word ‘Earnings’ is described at s 332 of the Act, as:
332 Earnings
(1) An employee’s earnings include:
(a) the employee’s wages; and
(b) amounts applied or dealt with in any way on the employee’s behalf or as the
employee directs; and
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(c) the agreed money value of non-monetary benefits; and
(d) amounts or benefits prescribed by the regulations.
(2) However, an employee’s earnings do not include the following:
(a) payments the amount of which cannot be determined in advance;
(b) reimbursements;
(c) contributions to a superannuation fund to the extent that they are contributions to
which subsection (4) applies;
(d) amounts prescribed by the regulations.
Note: Some examples of payments covered by paragraph (a) are commissions,
incentive-based payments and bonuses, and overtime (unless the overtime is
guaranteed).
(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:
(a) to which the employee is entitled in return for the performance of work; and
(b) for which a reasonable money value has been agreed by the employee and the
employer;
but does not include a benefit prescribed by the regulations.
(4) This subsection applies to contributions that the employer makes to a superannuation fund
to the extent that one or more of the following applies:
(a) the employer would have been liable to pay superannuation guarantee charge under
the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts
had not been so contributed;
(b) the employer is required to contribute to the fund for the employee’s benefit in
relation to a defined benefit interest (within the meaning of section 291-175 of the
Income Tax Assessment Act 1997) of the employee;
(c) the employer is required to contribute to the fund for the employee’s benefit under a
law of the Commonwealth, a State or a Territory.
[35] Whilst no regulations have been made for the purposes of s 332(1)(d) or s 332(2)(d) of
the Act, regulation 3.05(6) of the Regulations has been made in respect of s 382(b)(iii) of the
Act. However, Regulation 3.05(6), which addresses non-monetary benefits, is not relevant for
current purposes
[36] The term ‘annual rate of earnings’ in s 382(b)(iii) of the Act refers to the annual rate of
earnings at that time, and not the annual earnings to that time (that is the amount earned in the
12 months to that time).13
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[37] The Applicant contends that the 30% site uplift cannot be included as part of the
Applicant’s annual rate of earnings for two reasons:
a) it is not an annual rate at all, but is spasmodic, and only applies to site work. The
Applicant’s place of work is designated to include site and head office at Bulwer
Street, Perth and other places as directed or allocated; and
b) the amount in the sense of an annual rate cannot be determined in advance and is
therefore excluded by the operation of s 332(2)(a) of the Act.
[38] In support of its aforementioned reasons, the Applicant drew upon the decision of
Venning v McConnell Dowell Constructors (Aust) Pty Ltd14 (‘Venning’). The Applicant
submitted that a ‘site allowance’ in Venning had not been included in the employee’s earnings
because the employer had a broad right to vary or cease payment of the allowance, and it was
not payable during periods of leave. The Applicant pressed that in the Applicant’s case whilst
the 30% was fixed, it only applied when on site and that was not guaranteed as the contract
provided for other non-site work locations.
[39] In Venning, Deputy President Smith identified the applicant’s total fixed remuneration
package did not include the site allowance and considered that as the site allowance was not
guaranteed and was for disabilities associated with the site, it was not to be considered when
determining whether an employee exceeded the high income threshold.15
[40] The Respondent submitted that the facts in Venning were insufficiently similar or
analogous to the facts of the Applicant’s employment to be of relevance on this issue and should
be distinguished. The Respondent highlighted that contrary to the facts in this case, the relevant
contractual entitlement in Venning was expressly worded to be subject to a discretionary right
of the employer to cease or vary payment.16
[41] The Respondent pressed that the contract terms of the Applicant’s employment and the
site uplift entitlement were more clearly aligned with the facts in Macdonald v Mineral
Resources Limited (‘Mcdonald’)17 where the contract provided that:
(a) Mr Macdonald was to be paid a site uplift calculated on his base salary;18
(b) the site uplift was paid in recognition of hours worked on a project site;19
(c) the site uplift was not payable in respect of periods away from a project site, such
as during periods of leave;
(d) superannuation was paid on the site uplift; and
(e) the employer had a contractual power to deploy Mr Macdonald to other work
locations on a temporary or permanent basis.20
[42] In Macdonald, the Commission noted that since Venning, Deputy President Gooley had
held on at least four occasions that a site allowance should be included in the calculation of
annual ‘earnings’.21 On each of those occasions the Deputy President distinguished the decision
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in Venning on the grounds that the superannuation was payable on the site allowance and at
least some forms of paid leave.
[43] Reference was made in Macdonald to one of the Deputy President’s decisions in
Ferguson v MacMahon Holdings Limited,22 where Deputy President Gooley determined that
the site allowance paid to Mr Ferguson should be included in ‘earnings’. In that case, the
allowance was not paid if Mr Ferguson transferred to a site where the allowance was not
payable. Superannuation was paid on the site allowance. The site allowance was payable during
annual leave and personal leave only if Mr Ferguson was not on an extended absence. It was
not paid on long service leave. Deputy President Gooley held that notwithstanding that the site
allowance could be removed at the sole discretion of the employer, that did not mean that the
payment was discretionary and should be excluded from the calculation of earnings (footnotes
omitted):
[7] It was submitted by Mr Ferguson that the site allowance should not be included because it
is paid as compensation. Mr Ferguson submitted that he incurred additional expenses such as
mobile phone bills and he also suffered other disadvantages such as separation from his family
due to his offsite work.
[8] It was also submitted that because Macmahon Contractors could relocate Mr Ferguson at its
sole discretion to a site where Mr Ferguson was not entitled to a site allowance, the amount
could not be determined in advance.
[9] I do not accept these submissions. While a site allowance may be paid to compensate the
employee for the disabilities associated with working away from home, it is not a living away
from home allowance. Nor is it a discretionary bonus. I accept that Mr Ferguson would not have
been entitled to the allowance if he were transferred to Perth for example however that does not
mean the amount should not be included in his annual earnings. There are many circumstances
where an amount which is included in an employee’s wages will cease being paid because of
changed circumstances. For example, an employee who receives a night shift penalty will have
that amount included, but that penalty will not be paid if the employee ceases to work night
shift. The site allowance is not discretionary.23
[44] In Macdonald, the Commission held that the site uplift entitlement was not in the nature
of a discretionary payment merely because the employer could direct Mr Macdonald to other
work locations.24 It was sufficient that the terms of the contract in Macdonald specified the site
uplift was payable if the condition of work location was met.25 Furthermore, the fact that the
site uplift was not payable during paid or unpaid leave did not mean the ‘amount’ of the payment
could not be determined in advance.26 The Commission in Macdonald identified that the
‘amount’ of the payment was expressed as a fixed percentage of base salary, but that the
potential that leave might be taken must however be included in the calculation of ‘earnings’.
[45] I am of the view that the Applicant’s terms and conditions for the 30% site uplift in this
case are sufficiently analogous to the terms of the similar benefit that was analysed in
Macdonald. It is uncontroversial that over the preceding 12 months, the Applicant had worked
in a site-based role on a FIFO basis, his roster being 8 days on and 6 days off. By letter of 15
September 2025, the Respondent notified the Applicant that effective 9 September 2025 his
‘Project location’ was changed to ‘Paraburdoo & Channar Rehab’, meaning that he continued
to be site based following his prior work location. It is evident that there is no contractual power
for the Respondent to alter the amount of the payment if the conditions of work and location
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are met and the 30% site uplift is not expressed in any way to suggest that it is in the nature of
a reimbursement for employee expenses, and is therefore not excluded by s 332(2)(b) of the
Act. The 30% site uplift is a fixed percentage amount linked to annual salary and is not
expressed to be payable by reference to overtime hours or performance-based outcomes which
cannot be calculated in advance. The Respondent submits that it pays 12% superannuation
contributions in respect of the 30% uplift in accordance with the employment contract
requirement to pay superannuation as per legislation which is based on ordinary time earnings.
[46] I accept the Respondent’s submission as correct that consistent with the approach in
Macdonald, the fact that the 30% site uplift was not payable during periods of leave does not
mean that an amount cannot be determined in advance. The potential for leave that might be
taken under the contract must simply be included in the calculation for the purpose of s 382 of
Act. For that purpose, it is observed that clause 17(ii) of the Applicant’s employment contract
provides that annual leave accrues progressively during each year of service based on ordinary
hours of work and accumulates from year to year.
[47] The Respondent submits that the Applicant’s earnings under the employment contract
for the purpose of the Act may be calculated as follows:
Step 1 calculate the fortnightly base rate of pay:
Fortnightly base rate of pay is $5,971.15 calculated as follows:
Base annual remuneration $155,250
Total number of fortnights in a year ÷ 26
Total (base per fortnight) = $5971.15
Step 2 calculate the effective hourly rate of pay:
Effective hourly base rate of pay is $62.20 calculated as follows:
Fortnightly base rate of pay
$5,971.15
Total hours worked in a fortnight (8 days x 12 hours)
÷ 96
Total (base hourly rate)
= $62.20 per hour
Step 3 calculate the effective site uplift paid as an hourly rate:
Value of 30% site uplift per hour is $18.76 per hour calculated as follows:
[2026] FWC 2183
13
Effective base hourly rate $62.20 per hour
Multiplied by site uplift % X 30%
Total (site uplift hourly rate) = $18.66 per hour
Step 4 calculate the value of site uplift that will be lost for each day of leave:
Value of site uplift foregone for each day of leave is $233.92 per day
Site uplift hourly rate
$18.66 per hour
Number of hours work per shift
x 12
Total (site uplift per day)
= $233.92
Step 5 calculate the value of unpaid uplift if all days of leave that might reasonably
be taken under the contract are discounted in a year:
The total value of uplift foregone if all leave that might be taken under the contract is used is
$8,655.04
Step 6 calculate the total value of earnings in accordance with approach in
Macdonald. The total value of the Applicant’s earnings is $193,403.90
Base Remuneration
$155,250
Plus annual value of 30% site uplift (before leave is
removed)
$46,575
Subtotal
= $201,825
Minus total value of uplift foregone calculated at
step 4 above
$8,655.04
16 days of annual leave
$3,742.72
10 days of personal leave
$2,339.20
11 days of public holidays in Western Australia
$2,573.12
Total for the year:
$8,655.04
[2026] FWC 2183
14
Totals (Applicant’s annual earnings) = $193,169.96
[48] Having considered the evidence on this point and the relevant authorities, I accept and
adopt the Respondent’s approach to calculating the Applicant Applicant’s earnings and find
that they amounted to $193,169.96.
6 Conclusion
[49] The Respondent pressed that its jurisdictional objections should be upheld because when
the earnings afforded to the Applicant were taken into account, the Applicant was earning not
less than the high income threshold, and the Applicant was not covered by a modern award
whilst employed, and an enterprise agreement had not applied to him in relation to his former
employment. I accept as correct each of those assertions and it therefore follows the Applicant
is not protected from unfair dismissal by virtue of s 382 of the Act. The Respondent’s
jurisdictional objections are upheld and therefore the Applicant’s unfair dismissal application
is dismissed.”
Parremore v Eastern Guruma Pty Ltd [2026] FWC 2183 delivered12 June 2026 per Beaumont DP