What car allowances are included in the high income threshold?

There has been much confusion amongst fair work practitioners about what types or elements of motor vehicle allowances should be included as “earnings” when determining whether an employee’s sum of annual earnings exceeds the high income threshold which in the absence of a modern award or enterprise agreement  covering his or her employment would render the employee unprotected from unfair dismissal if his or her employment is covered by the Fair Work Act.

This unsatisfactory state of affairs has resulted from various disparate decision of the Fair Work Commission and in the following case, a Full Bench has endeavoured to clarify the legal issues.

The first basis upon which we granted permission to appeal was to clarify the correct approach in determining whether and what amounts of a motor vehicle allowance paid to an employee form part of that employee’s “earnings” and whether, as a consequence, they are outside or inside the jurisdiction of the Commission because of the high income threshold.

[47] There has been a disparity of approaches in decisions of individual members of the Commission, several of which we were referred to by the parties appearing at the hearing before us. The different approaches adopted have been:

1) To treat the whole of the allowance as earnings;

2) To treat the whole of the allowance as a reimbursement, and thus exclude it from the calculation of earnings by virtue s.332(2)(b) of the Act; or

3) To adopt the method of apportionment used in Fewings to determine the proportions of business and private use of the allowance and treat the private use proportion of the allowance as earnings.

[48] At the outset, we do not take issue with the method of apportionment adopted by the Full Bench in Fewings and consider it entirely appropriate for circumstances in which an employee has a company-supplied vehicle (from which he or she derives a benefit) and a reasonable monetary value has not been agreed for its private use. We consider that the Fewings method of apportionment is 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. A car allowance, however, is a payment of money. Therefore, regulation 3.05(6) is not relevant to the determination of whether the payment of a car allowance to an employee takes the employee above the high income threshold.

[49] It follows that the payment of a car allowance to an employee is not an amount “worked out in relation to the person in accordance with the regulations” 25 and therefore will only take the employee above the high income threshold if it is part of the employee’s “annual rate of earnings” within the meaning of s 382 of the Act.

[50] Section 332 of the Act provides a definition of “earnings” which includes particular payments and benefits such as “wages” and excludes particular payments and benefits such as “reimbursements”. A car allowance is not ordinarily considered to be one of the payments or benefits falling within the items listed in the definition of “earnings” in s.332(1), for the following reasons:

(a) a car allowance is not part of an employee’s “wages”, save for circumstances where the car allowance is, in reality, paid to the employee as a means of providing the employee with additional income and there is no requirement or expectation that the employee will have to use their car for work purposes (s.332(1)(a));

(b) a car allowance is typically paid directly to the employee and is not an “amount applied or dealt with in any way on the employee’s behalf or as the employee directs” (s.332(1)(b));

(c) a car allowance is not a “non-monetary benefit” because it is an entitlement to a payment of money (s.332(1)(c) & s.332(3)); and

(d) a car allowance is not an amount or benefit prescribed by the regulations (s.332(1)(d).

[51] It is also clear that a car allowance is not ordinarily within the scope of any of the payments or benefits referred to in s. 332(2) of the Act, which are excluded from the definition of “earnings”. This includes a “reimbursement” (s. 332(2)(b) of the Act). An allowance will usually consist of the payment of a definite predetermined amount to cover an estimated expense, and will be paid regardless of whether the recipient incurs the expected expense. In contrast, the Macquarie dictionary defines the word “reimburse” as “to make repayment to for expense or loss incurred; to pay back; refund; repay”. 26 In order to be properly characterised as a reimbursement, the payment in question must be “made by reference to actual cost, that is to say that there would need to be some correspondence between the payment and the expenditure incurred, even if the reimbursement were to be but partial reimbursement”.27 The ordinary meaning of the words “allowances” and “reimbursements” are mutually exclusive, because “an allowance is an amount generally granted in anticipation of expenditure being incurred, whereas reimbursement is an amount repaying that expenditure or a part of it.”28

[52] In many cases, car allowances are paid to an employee to cover an estimated or potential expense, and will be paid regardless of whether the employee incurs the expected expense. In such circumstances the car allowance would not be a “reimbursement” within the meaning of s.332(2)(b) of the Act because there is no correspondence between the car allowance and the actual expenditure incurred.

[53] Therefore, a car allowance will not ordinarily fall within the scope of any of the payments or benefits specifically “included” or “excluded” in the definition of “earnings” provided for in s. 332 of the Act.

[54] We are of the view, however, that the definition of “earnings” in s.332 of the Act is non-exhaustive and as such, “earnings” should be given its ordinary meaning (subject, of course, to the payments and benefits referred to in s.332(1) being included in the meaning of “earnings” and the payment and benefits referred to in s.332(2) being excluded from the meaning of “earnings”). Our reasons for so concluding are as follows.

[55] First, many of the words and expressions in the dictionary of the Act (s.12) are defined by the use of the word “means”. This may be contrasted with the use of the expressions “include” and “do not include” in s.332 to define “earnings”. The distinction between these approaches favours the conclusion that the word “include” in s.332 is not intended to be exhaustive. 29Although the word “includes” can, in some cases, be interpreted as “means and includes” and thereby provide an exhaustive definition, this is only where the provision in which it appears reveals that intention.30 Section 332 does not reveal that intention; the draftsperson(s) carefully discriminated between the use of “means” and “includes”.

[56] Secondly, the ordinary meaning of “earnings”, as defined in the Macquarie Dictionary, is “money earned; wages; profits”. 31 This would include payments to an employee such as loadings. There is no reference to loadings in s.332(1) of the Act. It follows that the full content of the ordinary meaning of the word “earnings” extends beyond those payments and benefits specifically referred to in s.332(1) of the Act. This supports the conclusion that the definition of “earnings” in s.332 of the Act was not intended to be exhaustive.32

[57] It falls then to consider whether a car allowance paid to an employee falls within the ordinary meaning of “earnings”.

[58] The ordinary meaning of “earnings” was considered by Lord Davey in Midland Railway Co v Sharpe: 33

“Now what does a man earn? He earns the sum which is the fruit of his labour; whatever he receives by way of remuneration for the services he gives, or, as Lord Macnaghten said in Abram Coal Co v Southern [1903] AC 306, a man’s ‘earnings’ are ‘the full sum for which the man is engaged to work’.”

[59] Lord Davey’s definition of “earnings” has been applied in a number of Australian cases. 34 One such case is Leighton v Australian Telecommunications Commission,35 where Justice Abadee dealt with a claim for common law damages for loss of earning capacity arising from a workplace injury. His Honour considered whether the unexpended portion of a daily travel allowance, regularly paid to the plaintiff prior to his injury, should be taken into account in calculating damages recoverable by him. Having recourse to the meaning of the word “earnings” given in Midland Railway Co v Sharpe, his Honour ultimately found that the surplus or saved portion of the daily travel allowance formed part of the measure of damages for diminution of earning capacity. Justice Abadee, at 261, reasoned:

“The evidence in this case clearly establishes that there was a saved surplus part of the allowance, deliberately saved by the plaintiff to support his family. The part of the balance was of value to him. The allowance was regularly paid. There was no accounting for excess or expenditure. Part of the allowance was regularly saved. To the plaintiff it was part of his earnings. The loss of the balance is, on the evidence, something that in my view, the plaintiff should be reasonably compensated for.”

[60] It is clear from these cases that the ordinary meaning of “earnings” extends beyond “wages” and may include other payments of value to employees such as a car allowance. However, it is necessary to give further consideration to the question of whether an employee’s “annual rate of earnings” within the meaning of s.382(b)(iii) of the Act includes a gross car allowance paid to the employee or the saved or private benefit of that allowance.

[61] Care must be taken when considering cases in which the word “earnings” has been construed in different statutory contexts. For example, in Mutual Acceptance Company Limited v The Federal Commissioner of Taxation 36 the High Court held that the gross payment of a weekly car allowance constituted part of the workers’ “wages” within the meaning of the Pay-roll Tax Assessment Act 1941-42. However, “wages” were defined in that act to include any “allowances paid or payable … to any employee as such”. The car allowance was held to be such an allowance. In so finding, Justice Williams pointed out (at 406) that the Pay-roll Tax Assessment Act is not “concerned with pecuniary benefit in the sense of the profit that an employee derives from the payments which he receives from his employer, but with the actual remuneration which he is entitled to receive in respect of his employment, quite irrespective of the expenses to which he has been put to earn that remuneration.” The definition of “wages” in the Pay-roll Tax Assessment Act at that time was so wide that it included payments which would not be part of the taxable income of the employee. The fact that pay-roll tax is assessed on what an employer is bound to pay as “wages” was also relevant to the analysis.

[62] In Counsel v Repatriation Commission, 37 the Full Court of the Federal Court considered the meaning of the word “earnings” in the phrase “loss of salary or wages, or of earnings on his or her own account” in s.24(2A)(e) of the Veterans’ Entitlements Act 1986 (Cth). Justice Carr reasoned as follows in relation to this issue:

“[53] I would acknowledge that, depending upon the context, the word “earnings” is ambiguous in that it could mean gross earnings or it could mean a figure which results after deducting expenses from gross earnings.

[54] There is nothing in Part II (the relevant Part) of the Act which requires any dissection of a veteran’s earnings, whether for the purpose of quantifying any rate of entitlement, or any other purpose for that matter. In other words, the amount of the earnings lost through incapacity is irrelevant to the amount payable as the special rate.

I would not give “earnings” a restricted meaning so as to require a veteran to show a loss after calculating appropriate deductions. That alone would raise many complicated issues about what would be appropriate deductions for this purpose – a factor to which the House of Lords referred in Abram Coal Company Limited. I do not see why it should be assumed that the appropriate deductions should be those allowable under the Income Tax Assessment Act 1936 (Cth). Under that Act the economic activities of a taxpayer are regarded in terms of receipts which may be income (either under ordinary concepts or as statutorily-defined income) from which there may be deductions (not necessarily those which would be regarded as expenses according to generally-accepted accounting principles) which result in assessable income.”

[63] In Counsel v Repatriation Commission, Justices Gray and Goldberg agreed with the conclusion reached by Justice Carr. Justice Gray also expressed the view (at [18]) that “in construing the word ‘earnings’, the statutory context is the most important factor”.

[64] Part of the relevant statutory context in which the word “earnings” is used in s.382(b)(iii) includes other expressions used in the Act to deal with payments made to employees as consideration for their work. Sections 16 and 18 of the Act define an employee’s “base rate of pay” and “full rate of pay” respectively as follows:

“16 Meaning of base rate of pay

General meaning

(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:

(a) incentive-based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) any other separately identifiable amounts.

18 Meaning of full rate of pay

General meaning

(1) The full rate of pay of a national system employee is the rate of pay payable to the employee, including all the following:

(a) incentive-based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) any other separately identifiable amounts.”

[65] Parliament made a conscious choice to use an employee’s “earnings”, rather than their “base rate of pay” or “full rate of pay”, to define the cut-off point at which employees, who are not covered by a modern award and/or do not have an enterprise agreement that applies to them, are excluded from protection against unfair dismissal. An employee’s “earnings” are higher than the “base rate of pay” of an employee but are narrower in scope than the “full rate of pay” of the employee, because “earnings do not include the … payment of amounts which cannot be determined in advance” such as incentive based payments, bonuses and overtime (unless the overtime is guaranteed). 38

[66] The purpose of s.382(b)(iii) of the Act is to exclude from protection against unfair dismissal a high income employee who is not covered by a modern award and/or do not have an enterprise agreement that applies to that employee . A “high income employee” is excluded from protection against unfair dismissal by reference to their “annual rate of earnings” (and any amount worked out under the regulations) and not by reference to their “base rate of pay” or “full rate of pay”. To reach a conclusion that an employee is a “high income employee” by including the whole of a car allowance paid to them at the time of their dismissal, in the sum of their “annual rate of earnings”, in circumstances where there is a requirement on the part of the employee to use their car for work purposes, without any reference to what portion of that car allowance, if any, the employee actually derived personal benefit from, is inconsistent with the purpose of s.382(b)(iii) of the Act. 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.

[67] Consistent with the purpose to which we refer in the previous paragraph, it has long been held, for the purpose of determining whether an employee is above the high income threshold for protection against unfair dismissal, that the focus is on the private benefit derived by an employee from the provision of a fully maintained motor vehicle. The provision of the vehicle for business purposes is not included in determining whether the employee has exceeded the high income threshold. A Full Bench of the Australian Industrial Relations Commission in Rofin Australia Pty Ltd v Newton 39 endorsed the following approach taken by Senior Deputy President Watson40 in determining whether any part of the provision of a fully maintained motor vehicle to an employee should be included as part of the employee’s remuneration:

“1. The private benefit derived by an employee through the provision to such an employee of a fully maintained motor vehicle will constitute remuneration for the purpose of s 170 CC(3) and (4), and

  1. For the purposes of determining remuneration, the focus should be upon the private benefit derived by the employee and the provision of a motor vehicle for business purposes would not form part of the remuneration.

…Where a motor vehicle is provided to an employee in lieu of salary that might otherwise have been paid, it is appropriate that the private benefit derived by the employee from the provision of the motor-vehicle be counted as part of the employee’s remuneration.” 41

[68] It must be recognised that previous legislation used the term “remuneration” to work out whether an employee exceeded the high income threshold. 42 “Remuneration” was held to mean “the reward payable by an employer to an employee for the work done by that employee in the course of his or her employment with that employer”.43 However, “remuneration” ordinarily involves the same considerations as “earnings”.44 We do not discern any intention on the part of the legislature to alter the point at which an employee exceeds the high income threshold by replacing “remuneration” with “earnings” as the relevant means by which the threshold is assessed.

[69] It would be somewhat incongruous to adopt an approach whereby:

(a) an employee who was provided with a fully maintained motor vehicle where the employee was required to use their vehicle for work purposes (but derived a private benefit because he or she did not use the vehicle solely for business purposes) had only the private benefit (but not the proportion attributable to the use of the vehicle for business purposes) included as part of their “annual rate of earnings” for the purpose of determining whether they exceeded the high income threshold, but

(b) an employee who was paid a car allowance in circumstances where the employee was required to use his or her car for work purposes (but derived a private benefit because they did not use the whole of the car allowance for business purposes) had the whole of the car allowance included as part of their “annual rate of earnings” for the purpose of determining whether they exceeded the high income threshold.

[70] Many of the cases in which it has been held that “earnings” means gross earnings have been decided, in part, on the basis that there would be “endless difficulties” if the court had to find out the figure which results after deducting expenses from gross earnings. 45 No such problem arises in the context of a car allowance provided to an employee. As has been the case for at least 20 years46 in relation to the provision of a fully maintained car to an employee, there is no significant barrier to the determination and calculation of the private benefit component of either the provision of a fully maintained car or the payment of a car allowance to an employee.

[71] We are fortified in our view that a car allowance should be treated in the manner we propose when regard is had to the exclusionary provisions in s.332(2), for example the exclusion of reimbursements from earnings in s.332(2)(b). It seems to us that if an employee uses his or her motor vehicle for work purposes and makes a claim for a motor vehicle mileage payment, this would properly be described as a reimbursement. Yet, if that same employee has been paid a vehicle allowance in anticipation of some work related use of the employee’s vehicle, should the proportion of the allowance paid in advance which can be attributed to work related private vehicle use be treated as “earnings”? We think not.

[72] For the reasons set out above and having regard to the relevant statutory context, we are of the view that a car allowance should be treated in the following way for the purpose of calculating an employee’s “annual rate of earnings” within the meaning of ss.332 and 382(b)(iii) of the Act:

(a) If a car allowance is paid to an employee in circumstances in which there is no requirement or expectation that the employee will have to use his or her car for work purposes, then the whole of the car allowance is, in reality, part of the employee’s wages and is therefore included in their “earnings”; or

(b) If a car allowance is paid to an employee at the time of their dismissal in circumstances in which there is a requirement or expectation that the employee will have to use his or her car for work purposes, then it will be necessary to determine and calculate the private benefit, if any, derived by the employee from the car allowance. To that end, we suggest the following methodology, which is based on the approach taken in Fewings:

  1. Determine the annual distance travelled by the car in question. The amount of the annual distance will be as follows:
  2. if the car allowance has been paid for at least 12 months prior to the dismissal – the distance travelled by the car over the 12 months immediately prior to the dismissal; or
  3. if the car allowance has been paid for a period of less than 12 months prior to the dismissal, determine the distance travelled by the car in the period during which the car allowance has been paid and then extrapolate that distance over a period of 12 months to calculate an annual distance. For example, if an employee moved into a new position with his or her employer 6 months prior to his or her dismissal, received a car allowance during that 6 month period, and drove his or her car for 10,000 km in that 6 month period, the assumed annual distance travelled by the car for the purpose of calculating the employee’s “annual rate of earnings” would be 20,000 km.
  4. Determine the percentage of the annual distance travelled which was for business use, which would not include travel between the employee’s home and usual place of work. If the car allowance has been paid for a period of less than 12 months prior to the dismissal, determine the business use percentage of the distance travelled in the period during which the car allowance was paid.
  5. Multiply the annual distance calculated in accordance with paragraph 1 above by the business use percentage calculated in accordance with paragraph 2 above. This provides the annual distance travelled for business purposes.
  6. Estimate the cost per kilometre for a car of the type used. This information can be obtained from the RACV, NRMA or like motoring organisations.
  7. Multiply the annual distance travelled for business purposes by the estimated cost per kilometre. The result is the annual cost of using the car for work purposes. Compare that annual cost with the amount of the annual car allowance. The amount of the annual car allowance will be as follows:
  8. if the car allowance was paid for at least 12 months prior to the dismissal – the amount of the car allowance paid to the employee in the 12 months immediately prior to the dismissal; or
  9. if the car allowance has been paid for a period of less than 12 months prior to the dismissal, determine the amount of the car allowance paid in that period and then extrapolate that payment over a period of 12 months to calculate an annual amount of the car allowance. For example, if an employee in a business other than a small business was employed in that business for a period of 9 months prior to his or her dismissal, and received a car allowance of $2,000 each month in that 9 month period, the assumed annual car allowance for the purpose of calculating the employee’s “annual rate of earnings” would be $24,000 ($2,000/month x 12 months = $24,000).
  10. If the amount of the annual car allowance exceeds the annual cost of using the car for work purposes, the difference is the private benefit to the employee of the car allowance, which forms part of their “annual rate of earnings”.

[73] We are satisfied the second basis upon which we granted appeal has been established. The approach the Commissioner adopted was erroneous in that he did not turn his mind to the relevant question of deciding whether Mr Bernadou’s earnings were in excess of or underneath the high income threshold. As the passage below reveals, the Commissioner’s finding was simply based on taking the employer’s case at its highest, and deciding whether or not, on that case, the high income threshold had been exceeded:

“Determination of the Issue of car allowance

[23] The dispute between the parties does not need to be resolved. It is sufficient for the purpose of the disposition of the high income threshold for the Commission to accept the Respondent’s case that only 40% of the usage of the car by the Applicant was for business purposes and that the remaining 60% of the usage of the car by the Applicant was for private purposes. On this basis the $20,000.00 car allowance should be split into an amount of $8,000.00 for business use and an amount of $12,000.00 for personal use. The $12,000.00 becoming part of the wages of the Applicant for the purposes of s.322(1)(a).

[24] So far the earnings of the Applicant are made up of a salary of $125,000.00 (which includes an amount of voluntary superannuation contributions) and an amount of $12,000.00 paid to the Applicant to cover his private use of his own car. The total of $137,000.00 falls below the high income threshold.

Other reimbursements

[25] The Respondent contended, based upon the view expressed by the Respondent’s accountant, that half of two other reimbursements paid to the Applicant should be treated as being for personal benefit and not a reimbursement for business purposes. The two reimbursements were a telephone reimbursement of $1,560.00 per annum and a laptop reimbursement of $1,500.00 per annum. The Respondent provided a statement from Mr Dunn, Managing Director of The Accountancy Practice P/L who said of these two reimbursements:

“In relation to the telephone and laptop reimbursement, I estimate (based on my 28 Years of experience as an accountant) a private usage component of 50% based on normal work usage by staff.”

This statement was not given as sworn evidence nor was it tested in any way. However, for the purpose of disposing of the high income threshold issue I am prepared to accept the statement of Mr Dunn and the Respondent’s reliance on it.”

(our emphasis)

[74] The Commissioner was required to determine for himself what the sum of Mr Bernadou’s annual rate of earnings was and whether or not that sum was less than the high income threshold. It is apparent from the submissions made by STE and Mr Bernadou that the purpose of the car allowance is disputed, as are the additional payments made by STE to Mr Bernadou for fuel and road toll expenses. These matters were not dealt with by the Commissioner, despite having been raised before him. They require determination following evidence and submissions.”

Sam Technology Engineers Pty Ltd v Bernadou (2018) FWCFB 1767 delivered 27 March 2018 per Gostencnik DP, Clancy DP and Saunders C