1
Fair Work Act 2009
s.394—Unfair dismissal
Craig Daniel Blyth
v
Remondis Australia Pty Ltd
(U2024/3736)
DEPUTY PRESIDENT BEAUMONT PERTH, 14 JUNE 2024
Application for an unfair dismissal remedy – High income threshold
1 Issue and outcome
[1] Mr Craig Daniel Blyth (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 Remondis Australia Pty Ltd (the Respondent), having worked there as its Finance
Manager during the period of 17 January 2022 to 8 March 2024. At the time of the Applicant’s
dismissal the high income threshold was $167,500.00, and the Applicant received an annual
remuneration package amounting to $171,942.00. The Applicant’s remuneration package
comprised an annual salary of $150,072.00 and a vehicle allowance of $21,870.00 per annum.
The Respondent raised a jurisdictional objection to the application, arguing that the Applicant
is not a person protected from unfair dismissal within the terms of s 382 of the Act, because he
enjoyed annual earnings above the high income threshold, he was not covered by a modern
award, and an enterprise agreement did not apply to his employment.
[2] In response to the objection, the Applicant contends he was paid below the high income
threshold of $167,500.00. The Applicant submits that whilst his salary is not in dispute, he
attributes $5,377.87 of his vehicle allowance to work-related travel, therefore resulting in his
total earnings amounting to $166,564.13, which is less than the high income threshold.
[3] It was not disputed, and I am satisfied, that the Applicant had served the minimum
employment period and he was not covered by a modern award and an enterprise agreement
did not apply to him in his employment.1 Therefore, the issue that fell for determination was
whether his annual rate of earnings was less than the high income threshold.
[4] If the Applicant establishes this element, or rather, the Respondent is unable to sustain
its argument that the Applicant’s earnings were not less than the high income threshold, the
Respondent’s objection will be dismissed.
[5] Briefly stated, I have found the Applicant’s earnings were not less than the high income
threshold and therefore the jurisdictional objection must be upheld. As the Applicant is not a
[2024] FWC 1534
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1534
2
person protected from unfair dismissal, his application is dismissed. Accordingly, an Order2 to
this effect issues concurrently with this decision.
2 Background
[6] The broader context of the matter was set out in the evidence of the Applicant and the
Respondent’s witnesses:
a) Mr Christopher Gusenzow, General Manager of the Respondent;
b) Ms Julie Smith, Operations Manager – Perth MRFs, responsible for the Canning
Vale and Osbourne Park facilities; and
c) Mr Stephen Tunbridge, Manager Industrial Services – responsible for the
management of the Respondent’s Henderson operation.
[7] It is observed that the Respondent’s witnesses were not required by the Applicant for
cross examination, and the Respondent only sought to clarify two points with the Applicant
regarding his submissions.
[8] The Applicant was offered the permanent full-time position of Commercial Financial
Manager with the Respondent on 14 January 2022, reporting to Mr Gusenzow.3 The Applicant
accepted the offer on 17 January 2022, and from all accounts appears to have commenced work
with the Respondent on that same date.4
[9] At clause 4.8 of Schedule 1 of the Applicant’s employment contract, he was provided
with a vehicle allowance:
Level Three (3) in line with the REMONDIS Australia Light Vehicle & Usage Policy &
REMONDIS International GmbH Policy No. 10/A/2020 Car Guidelines as varied from time to
time.
Please note, temporary car allowance payment will be given until a vehicle is available (the
temporary car allowance will not exceed six (6) months from the start date (and will not exceed
$21,870 (paid pro rata per month) gross per annum.
As soon as a vehicle is available, your car allowance will be removed and further payments
ceased and you will be provided with a Fully Maintained Company Vehicle (FMCV).
[10] The Light Vehicle & Usage Policy (the Policy), as referred to in paragraph [9], applied
to all employees of the Respondent and its corporate entities. The Policy cautioned that it was
not to be read or interpreted as granting an employee with an automatic entitlement to a motor
vehicle, whether as a tool of trade or as part of their condition of employment. Clause 4.3 of
the Policy addressed the ‘Temporary Car Allowance’, setting out:
An employee may be eligible for a Temporary Car Allowance after commencing their role (new
employee or transferring into a role where there was no previous FMCV supplied) for a
maximum of 12-months.
If an employee is receiving a Temporary Car Allowance it is payable during periods of paid
work and paid leave (Annual Leave, Personal Leave, Long Service Leave and Paid Maternity
Leave) and not a part of an Eligible Termination Payment (ETP).
[2024] FWC 1534
3
An employee receiving a Temporary Car Allowance must ensure that their vehicle is appropriate
for business us at all times including being fit-for-purpose (roadworthy).
A Temporary Car Allowance is not available to employees who are required to be a Tool-of-
Trade Vehicle and who will be required to have REMONDIS signage on the vehicle.5
[11] Page 11 of the Policy provides the defined value of the Temporary Car Allowance. The
Temporary Car Allowance for a level three, attributable to positions of State Functional,
National Managers & Site/Region Managers ($25M), was $21,870.00.6
[12] The Applicant had calculated 240 workdays between 10 March 2023 and 9 March 2024,
eight public holidays, 14 days of annual leave and 104 days that were on a weekend – amounting
to 366 days.7
[13] For the last month prior to his dismissal, the Applicant calculated the distances travelled
for work purposes, listing them as follows:
Jandakot to Canningvale return General Discussion with Site Manager and safety
walk discuss PDU
31.8km
Jandakot to Canningvale return Take Analyst (Richey) for Site Visit and Safety
Walk Discuss Fire in Baler and MRF sorting
Facility
31.8km
Jandakot to Canningvale return Take Accountant (Tegas) for site visit and general
discussion P&L
31.8km
Jandakot to Henderson return Discussion with Site manager on Capital business
case
27km
Jandakot to Henderson return Discussion with Site manager on P&L allocations 27km
Jandakot to Henderson return Discussion with Site manager on P&L allocations
and Safety Walk
27km
Jandakot to Henderson return Discussion with Site manager on P&L allocations
and Safety Walk
27km
Total 203.4km
[14] In the Applicant’s application he set out the following in respect of his salary or
earnings:
Base Salary $150,072.00
Car Allowance $21,870.00
Less contracted work component $5,858.04
Total $166,083.968
[15] In the Applicant’s outline of submissions, he set out the following in respect of his salary
or earnings:
Annual Salary $150,072.00
Car Allowance $21,870.00
Less contracted work component $5,377.87
[2024] FWC 1534
4
Total $166,564.139
[16] The Applicant acknowledged the difference regarding the ‘contracted work component’
as set out in his application and thereafter in his submissions. He explained that he had
calculated the personal use component of the vehicle allowance by a time-based availability
apportionment (total annual workday hrs / total annual hrs), noting that the personal component
equated to 75.4% and the work component 24.6%. The work component had been calculated
by taking total working days in the year excluding weekends, public holidays and all leave
taken therefore amounting to 241 working days (WD). However, the Applicant had amended
the calculation slightly from the number submitted on his application, due to accounting for a
reduction in WD – omitting public holidays and annual leave, therefore bringing the work
related percentage down from 27% in the application, to 24.6%.
[17] At page 146 of the Digital Hearing Book, the Applicant had prepared an Excel
spreadsheet in which he had provided an apportioned amount of the vehicle/car allowance as
follows:
Car Allowance Apportionment RAC cost Apportionment
Annual Salary $150,072.00 $150,072.00
Car Allowance $21,870.00 $21,870.00
Work Related Car Allowance
apportion
$5,377.87 -
RAC 2023 Cost of Running
Vehicle cost apportionment
- $4588.12
Total Adjusted Income 166,564.13 167,353.83
[18] The Applicant stated that to validate his logic and ensure alignment with the average
vehicle costing methodology, he used hybrid annualised costs from the RAC Car Running Cost
Guide 2023 (the Guide) selecting a vehicle similar to his vehicle with a lower purchase price,
as this was the closest match available. The Applicant said that this still resulted in his
annualised income coming in under the high-income threshold.
3 Was the Applicant’s annual rate of earnings and other amounts less than the
high income threshold?
[19] 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.
[20] 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.
[2024] FWC 1534
5
[21] 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
(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.
[2024] FWC 1534
6
[22] 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. Regulation 3.05(6) provides:
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.
[23] The wording of regulation 3.05(6)(c) implies that the Commission has a degree of
discretion in deciding whether it should consider a benefit for the purposes of assessing whether
the high income threshold applies to a person at the time of dismissal.10 Once it has been
determined that a benefit meets the criteria contained in regulations 3.05(6)(a) and (b), the
Commission must consider whether it is satisfied, having regard to the circumstances, that each
of regulations 3.05(6)(c)(i), (ii) and (iii) apply.
3.1 Annual rate of earnings
[24] First, I must determine the Applicant’s annual rate of earnings. 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).11
[25] Having considered all of the evidence on this point, I find that the Applicant’s salary
exclusive of superannuation amounted to $150,072.00.
3.2 Vehicle allowance
3.2.1 Legal principles
[26] In Sam Technology Engineers Pty Ltd v Bernadou (Bernadou),12 the Full Bench detailed
the approach to be adopted when assessing whether a vehicle allowance falls within the
meaning of earnings for the purpose of s 332(1) of the Act.
[27] First, the Full Bench affirmed that unlike circumstances where a company vehicle is
provided, a vehicle allowance to an employee is not an amount ‘worked out in relation to the
person in accordance with the Regulations’, and therefore will only take the employee above
[2024] FWC 1534
7
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.13
[28] Second, a vehicle 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 vehicle 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 vehicle 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 vehicle allowance is not a ‘non-monetary benefit’ because it is an entitlement to a
payment of money (ss 332(1)(c) and s 332(3)); and
d) a vehicle allowance is not an amount or benefit prescribed by the Regulations
(s 332(1)(d)).
[29] Third, the Full Bench stated that a vehicle allowance was 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’ - such as a reimbursement.
[30] The Full Bench concluded that a vehicle allowance will not ordinarily fall within the
scope of any payments or benefits specifically ‘included’ or ‘excluded’ in the definition of
‘earnings’ provided for in s 332 of the Act.14 However, it held the view that the definition of
‘earnings’ in s 332 of the Act is non-exhaustive and as such, should be given its ordinary
meaning (subject to what has been outlined above).15
[31] The Full Bench therefore considered that a vehicle 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:
a. 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
[2024] FWC 1534
8
b. 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.
2. 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.
3. Multiply the annual distance calculated in accordance with para 1 above by the business use
percentage calculated in accordance with para 2 above. This provides the annual distance
travelled for business purposes.
4. 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.
5. 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:
a. 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
b. 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).
6. 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"
3.2.2 Applicant’s submissions
[32] The Applicant submits that the amount of his salary is not under dispute, but in respect
of the vehicle allowance, he initially claimed that $5,377.87 was attributable to work-related
travel. Hence, resulting in total earnings of $166,564.13, which is less than the high income
threshold.
[2024] FWC 1534
9
[33] Referring to the Policy, the Applicant observed that it could be implied from the
requirement that he ‘ensure that their [his] vehicle is appropriate for business use at all times
including being fit for purpose’, that his vehicle was available for any work-related travel as
required during his regular workday.
[34] The Applicant says that whilst located at the Jandakot office, he was required to service
two additional sites, at Canning Vale and Henderson. The Applicant said that these sites were
15.9 km and 13.5 km from the Jandakot office respectively.16 The Applicant acknowledged
that most work was done remotely, but adhoc site visits were required.17
[35] The Applicant said that he did not have documented evidence of trips to Canning Vale
and Jandakot but in the month prior to his dismissal, he had made four return trips to Henderson
and three trips to Canning Vale. The Applicant explained that the trips were arranged with
operational managers as required.
[36] The Applicant adds in his further amended submissions, that the actual usage of his
vehicle for work-related travel over the last six months was minimal.18 The Applicant stated
that he had not attempted to quantify this amount, but had simply acknowledged that there was
work-related travel.19
[37] In respect of the evidence of the Respondent, particularly that of Ms Smith and
Mr Tunbridge, the Applicant agreed with their six month estimates of visits to the relative sites,
albeit he noted the variance between the high and low estimates.20 However, the Applicant
clarified that there was an increase in the frequency of visits to the sites in February 2024 due
to a new accountant joining the team,21 and because Mr Tunbridge had asked for a weekly half-
day catch-up.22
[38] The Applicant pressed that his argument was premised upon time-based apportionment.
Conceding that cases addressing vehicle allowances based on availability are limited, the
Applicant adjured that principles of reasonableness and fairness can support an allowance for
vehicle availability. That is, if an employee is required to have a vehicle available at all times
for work purposes, a reasonable allowance should be provided taking into account the cost of
maintenance and availability of the vehicle. In support of the ‘availability argument’, the
Applicant referred to the Policy that stated that an ‘Employee receiving a temporary car
allowance must ensure that their vehicle is appropriate for business use at all times including
being fit for purpose (roadworthy)’. The Applicant interpreted the phrase ‘at all times’ such
that it was not limited to when the vehicle is in use, but rather could be interpreted as his daily
working hours.
[39] The Applicant noted that to factor in the cost of availability in the apportionment
calculations, he had taken into account total worked hours and total annual hours (WD), which
were workdays excluding public holidays, weekends and annual leave days, multiplied by nine,
being the average ‘Daily Work Hours’ divided by the total annual hours being 366 x 24 (TH):
(WD x DH) / TH = % Available Hrs
(240 x 9) / (366 x 24) = 24.6%
[2024] FWC 1534
10
[40] The Applicant submits (and as noted) that when applying this to the total allowance paid
the portion of the allowance attributable to availability is $5,377.87.
[41] The Applicant further submits that a reasonable measure of availability cost, is the
Guide. The Applicant notes that the vehicle he drove to work each day was a Ford Ranger FX4
3.2L Diesel Auto purchased new in December 2017, the on road purchase price being $62,000
RRP.23 The closet equivalent in the Guide is the Ford Ranger XL dual cab 2.0L Diesel Auto,
which, said the Applicant, had a lower purchase price and smaller engine. Hence, he considered
he had erred on the side of caution in his calculation to provide reasonable vehicle running
costs.
[42] According to the Applicant, when applying the availability percentage to the total
apportioned cost, this amounted to $4,637.92 – hence reducing the total salary to fall under the
high income threshold.
3.2.3 Respondent’s submissions
[43] The Respondent submits that it agrees that there was a requirement for the Applicant to
use his personal vehicle for work purposes, but that the actual use over the last 12 months of
his employment was minimal.
[44] It highlighted that Mr Gusenzow had provided evidence that the Applicant’s role was
based at Jandakot and it was ‘very rare and not a usual requirement’ for him to travel for work
outside that office.24 In respect of the travel for work undertaken by the Applicant,
Mr Gusenzow said it comprised a small number of visits to the Respondent’s Henderson and
Canning Vale offices, as a part of a ‘getting to know you’ exercise in the last six months of his
employment.25 Otherwise, said the Respondent, the Applicant’s duties were performed at the
Jandakot office.
[45] According to the Respondent, the Applicant’s total number of visits to Henderson was
between five and ten, and to Canning Vale between three and six.26 The Respondent, accepted
the Applicant’s assertion that the distance of these trips from Jandakot is 13.5km and 15.9km,
respectively.
[46] Whilst not conceding that every journey was a return journey, that is, starting and
returning at Jandakot, the Respondent pressed that in the absence of any better detail from the
Applicant, the total distance travelled, assuming that each was a return journey, was in the order
of:
Minimum
To Henderson and return five times: 5 x 13.5 x 2 = 135
To Canning Vale and return three times: 3 x 15.9 x 2 = 95.4
Total = 230.4
Maximum
To Henderson and return ten times: 10 x 13.5 x 2 = 270
To Canning Vale and return six times: 6 x 15.9 x 2 = 190.8
Total = 460.8
[2024] FWC 1534
11
[47] The Respondent said that on this evidence, the maximum business travel was 460.8km,
all of which took place in the last six months of the Applicant’s employment. Prior to that, said
the Respondent, the amount of the Applicant’s business travel was zero, or essentially zero.
[48] Insofar as the Applicant’s evidence was to be believed, the Respondent said that the
Applicant had no ‘documented evidence’ of business travel – with the only figure provided
concerning the last month of his employment, where he claimed four trips to Henderson and
three trips to Canning Vale, but again, without any documentation or records. The Respondent
pressed that this claim regarding the last month of the Applicant’s employment was neither
accurate nor representative of the business travel undertaken by the Applicant.27
[49] Concerning the Respondent’s evidence of the Applicant’s business travel, the
Respondent pointed to its reliance on the evidence of the managers responsible for the
Henderson and Canning Vales sites, which corroborated the evidence as stated by
Mr Gusenzow. The Respondent submits that its evidence ought to be preferred as against the
Applicant’s vague and unsubstantiated evidence as to his business travel discounted.
[50] The Respondent observes that the Applicant had not initially given evidence as to the
make, model or age of his care making use of the Guide, impracticable. The Respondent
therefore claims that an appropriate rate per kilometre, in light of this gap in the Applicant’s
evidence, is the per km rate published by the Australia Tax Office for the claiming on a cents
per kilometre basis of work travel. This rate, for 2023-24, is 85 cents per kilometre.28
[51] The Respondent says that the amount which should be deducted from the Applicant’s
vehicle allowance for work travel is:
461 x 0.85 = $391.85
[52] With this deduction, the Respondent says that the Applicant’s earnings are:
$150,072.00 +
$21,870.00 –
$391.85
= $171,550.15
3.2.4 Consideration
[53] Concerning the assessment of whether a vehicle allowance falls within the meaning of
earnings for the purpose of s 332(1) of the Act, the Respondent relies upon the approach of the
Full Bench in Sam Technology Engineers Pty Ltd v Bernadou.29 The Respondent was entitled
to do so given the well-established Full Bench authority on this subject matter and my departing
from an established Full Bench authority, which is arguably binding in the circumstances of the
case being considered, would be a fundamental error of law.
[54] Adopting the approach endorsed by the Full Bench in Bernadou,30 I note from the outset
that there was an expectation that the Applicant would have use of his car for work purposes.
Therefore, it is necessary to determine and calculate the private benefit, derived by the
Applicant from the vehicle allowance.
[2024] FWC 1534
12
[55] The Applicant cites the annual distance travelled by his vehicle as 15,925km per annum.
The Respondent did not challenge this evidence.
[56] Further, given the Applicant does not cavil with the Respondent’s calculation of the
distance travelled for at least 12 months prior to the Applicant’s dismissal, I have, erring on the
side of caution, adopted the scenario where ‘Maximum’ distances were travelled by the vehicle
for work purposes, therefore equating to 460.8km.
[57] 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 equates to
0.0289 or 3% if rounding up.
[58] Multiplying the annual distance calculated, 15,925km with the business use percentage
calculated provides the annual distance travelled for business purpose: 477.75km.
[59] The Guide31 is premised upon driving 15,000km per year.32 For a Ford Ranger XL dual
cab 2.0L Diesel Auto, the total cost per week is $362.71. Multiplying that amount by 52 gives
an annual running cost of $18,860.92.
[60] The cost per kilometre is $18,860.92 divided by 15,000km which amounts to a cost of
$1.26 per kilometre. This, therefore, amounts to $600.72, if the Applicant’s business use of the
vehicle amounts to 477.75km or $580.61, if the Applicant’s business use amounts to 460.8km.
[61] If the amount of the annual vehicle allowance exceeds the annual cost of using the car
for work purposes, as is the case here, the difference is the private benefit to the employee of
the car allowance, which forms part of their ‘annual rate of earnings’. The difference in this
case is $21,870.00 - $600.72 = $21,269.28.
4 Conclusion
[62] The Respondent pressed that its jurisdictional objection should be upheld because when
the benefits afforded to the Applicant were taken into account, the Applicant was earning not
less than the high income threshold.
[63] I have found that the Applicant’s earnings consisted of the following:
Wages $150,072.00
Private benefit of the vehicle allowance $21,269.28
Total $171,341.28
[64] As the Applicant’s earnings are not less than the high income threshold of $167,500.00,
he is a person that is not protected from unfair dismissal by virtue of s 382 of the Act. The
Respondent’s jurisdictional objection is upheld and therefore the Applicant’s unfair dismissal
application is dismissed.
[2024] FWC 1534
13
DEPUTY PRESIDENT
Appearances:
Craig Daniel Blyth, the Applicant
Daniel Murray for the Respondent
Hearing details:
2024
Perth (by video):
12 June.
Printed by authority of the Commonwealth Government Printer
PR775957
1 Digital Hearing Book, 90 (DHB).
2 PR775958.
3 DHB (n 1) 18.
4 Ibid 45.
5 Ibid 53.
6 Ibid 60.
7 Ibid 146.
8 Ibid 17.
9 Ibid 90.
10 Zappia v Universal Music Australia Pty Ltd [2012] FWA 3208, [8] (Zappia).
11 Ibid 125 [9].
12 (2018) 275 IR 419 (Bernadou).
13 Ibid [49].
14 Ibid [54].
15 Ibid.
WORK MMISSION 1
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr775958.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa3208.htm
[2024] FWC 1534
14
16 DHB (n 1) 173.
17 Ibid.
18 Written Submissions of the Applicant dated 5 June 2024, [4].
19 Ibid.
20 Ibid.
21 Ibid [6].
22 Ibid [7].
23 Ibid [18].
24 Statement of Christopher Gusenzow, [4].
25 Ibid [5].
26 Ibid.
27 Ibid [8].
28 Australian Taxation Office, Cents per kilometre method (Web Page, 29 June 2023) https://www.ato.gov.au/businesses-
and-organisations/income-deductions-and-concessions/income-and-deductions-for-business/deductions/deductions-for-
motor-vehicle-expenses/cents-per-kilometre-method.
29 Bernadou (n 12) .
30 Ibid.
31 DHB (n 1) 142-145.
32 RAC, Car running costs 2023 (Web Page) https://rac.com.au/car-motoring/info/buying-a-car/running-costs.
