[2010] FWA 5772

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Fair Work Act 2009
s.394—Unfair dismissal

Adrian Read
Universal Store Pty Ltd T/A Universal Store



Application for an unfair dismissal remedy - a person protected from unfair dismissal

[1] Adrian Read (“the applicant”) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”). The applicant was formerly employed by Universal Store Pty Ltd T/A Universal Store (“the respondent”).

[2] The respondent has raised objections to the application, which were outlined as follows in the Form F3 (Employer’s Response to Application for Unfair Dismissal Remedy):

[3] As to the matters raised by the respondent, the Act provides as follows:

[4] The matter was listed for hearing on 29 July 2010 in Brisbane in relation to the objections raised by the respondent. In the proceedings, the applicant appeared on his own behalf. The respondent was represented by Mr J Moore of the National Retail Association.

Modern award or enterprise agreement

[5] In response to the respondent’s objections concerning lack of coverage by a modern award or application of an enterprise agreement, the applicant contended as follows:

[6] The first instrument referred to by the applicant is the Shop Employees (State) Award AN120499 - not a modern award but a notional agreement preserving a State award, being a State award originally made by the Industrial Relations Commission of New South Wales. The applicant submitted he had checked a website before the hearing and submitted the Shop Employees (State) Award AN120499 had been “updated to include Queensland under that particular award”. The applicant was at all relevant times employed in Queensland and there was nothing to suggest a connection with employment within the New South Wales jurisdiction. Despite the applicant’s contentions, and as the respondent’s submissions noted, “AN120499 is a New South Wales NAPSA that could never have applied to the Applicant’s employment”.

[7] The second instrument referred to by the applicant is the General Retail Industry Award 2010 MA000004 (“the award”). Section 48 of the Act specifies when a modern award “covers” an employee. It reads:

[8] Thus, by operation of s.48 of the Act, the award would have covered the applicant if it was so expressed. As to coverage, cl.4 of the award reads as follows:

[9] Clause 16 of the award further reads as to the classifications referred to in cl.4:

[10] Schedule B of the award lists the classifications referred to in cl.16 as “Retail Employee”, graded through eight levels. None of the classifications of Retail Employee in the award at Level 4 and below would appear to be capable of covering the applicant, as he was not employed “at a retail establishment” - which is the broad preamble in each of those classifications. Although the respondent has shops in Queensland and the Northern Territory, the applicant worked from the respondent’s head office and not at a retail establishment.

[11] The Retail Employee classifications at Levels 5 to 8 operate more broadly than Levels 1 to 4, dealing with classifications of employees performing work “in or in connection with a retail establishment” - and here the applicant’s job was in connection with the respondent’s retail establishments. For the award to cover the applicant, the classifications need also to be considered. As to the classifications at Levels 5 to 8, the award specifies the following indicative job titles:

[12] The award identifies, in addition to these indicative job titles, typical duties, skills and characteristics, which I do not reproduce, but which I have considered.

[13] Mr Moore noted in his submissions that the highest classification in the award is a Retail Employee Level 8 with minimum weekly wages of $766 or just under $40,000 a year, whereas the applicant’s wages were $115,605. The fact the applicant’s wages were well-above the award minima would not, despite Mr Moore’s submissions, alone be determinative in relation to the question of award coverage.

[14] The applicant’s position description for the role of “Menswear Buyer” was in evidence, detailing matters including an overview of the position as well as responsibilities and requirements. There was also evidence of a position description given in an Employer Nomination form under the Employer Nomination Scheme (for the Department of Immigration and Multicultural and Indigenous Affairs), which was completed by the respondent’s general manager in 2006. That form identified the applicant as the nominee for a job described as a “Development Manager & Buyer” and it included a description of the responsibilities and main duties. The applicant said he had not seen the form during his employment (although the form contains the applicant’s name for credit card details, his contact details and a cardholder signature) but also said he agreed in a general way with the description of the duties outlined in the form.

[15] Mr Moore submitted the applicant’s duties were well in excess of those anticipated or covered by the classifications in the award. As to the applicant’s role and responsibilities generally, Mr Moore further submitted:

[16] Mr Moore submitted that an examination of matters including the applicant’s role would lead to a conclusion the applicant had not been covered by an award classification and he was “genuinely award free”, and added that the applicant’s position was part of the respondent’s senior management. The applicant did not advance anything in support of his contention that he “falls under” the award, or which classification, other than that he had received advice to that effect.

[17] A consideration of matters including the description of the applicant’s role and responsibilities, and the coverage provisions and classification descriptors (including indicative job titles, duties, skills and characteristics) of the award, lead me to accept the respondent’s submission that the award did not cover the applicant.

High income threshold

[18] As to the respondent’s objection concerning the high income threshold, the evidence established that, as at the date of dismissal, the applicant’s received wages of $2,223.17 a week or (rounded to the nearest dollar) $115,605 a year. The high income threshold was, at that time, $108,300.

[19] Although it was common ground the applicant’s wages were $115,605 a year, the applicant contended his earnings were, nonetheless, effectively below the high income threshold when certain work-related expenses were taken into account. The applicant described matters in this way in Exhibit 4:

The applicant submitted his “true income” should be considered. In this respect, the applicant submitted that when certain work-related expenses were deducted from gross wages the effective earnings were below the high income threshold. In submitting his earnings were below the high income threshold, the applicant referred principally to work-related vehicle expenses and mobile telephone expenses. In this respect, the applicant adduced evidence as to claims for deductions he had made for work-related expenses in his income tax return for the 2008/2009 financial year. As to the work-related car expenses for 2008/2009, the applicant had, by the “B - Log book” method, claimed deductions of $11,394 for “Fuel/oil”, “Insurance”, “Repairs”, “Services”, “Rego/3rdParty”, “Lease Payments”, “Tyres/Battery” and “Other”. Notes in the income tax return indicated the vehicle expenses were for travel to clients, stores and suppliers. As to work-related mobile telephone expenses for 2008/2009, the applicant had claimed $1,367. It appears the claims for deductions for the work-related vehicle and mobile telephone expenses were accepted by the Australian Taxation Office (“ATO”) for 2008/2009. The applicant indicated he expected to make similar claims for work-related vehicle and mobile telephone expenses as income tax deductions for the 2009/2010 financial year. The applicant said he had not, as yet, filed an income tax return for 2009/2010 and did not have any detailed calculations. Nonetheless, the applicant expected the work-related claims for vehicle and mobile telephone expenses for 2008/2009 (which were in the combined order of $12,761) would be quite similar for 2009/2010, as his role had not changed substantially from the previous financial year.

[20] It may be noted that, in addition to work-related vehicle and mobile telephone expenses, the applicant claimed work-related travel expenses for the 2008/2009 financial year for a percentage of an overseas airfare, meals/expenses, taxis and parking. The applicant claimed other work-related expenses, including incentives to suppliers, home office, materials/books/magazines, international telephone cards, business-use internet, computer accessories, printing, stationery and postage. The applicant also claimed certain depreciations on equipment as other work-related deductions. Although the applicant claimed a range of work-related expenses as deductions for the 2008/2009 financial year, the applicant’s case did not contend that all classes of expenses should be taken into account along with the work-related vehicle expenses and mobile telephone expenses. The applicant did not make any submissions as to why reliance was being placed on only certain classes of work-related expenses/deductions in consideration of the high income threshold.

[21] The applicant also referred to Roberts v High Professional Productions Pty Ltd T/A Hi-Vis Labour Hire [2010] FWA 3462 (“Hi-Vis”). The applicant submitted that Hi-Vis considered the question of private/business use of a vehicle, mobile telephone and laptop computer in determining the high income threshold. He submitted that in Hi-Vis certain components of an applicant’s salary package relied on by the respondent were found to be business-related, with the result the applicant’s earnings fell below the high income threshold. The applicant submitted he had incurred work-related vehicle and mobile telephone expenses, and those expenses, by extension of the findings in Hi-Vis, should be taken into account so as to reduce his earnings - thereby bringing him below the high income threshold. Mr Moore submitted the decision in Hi-Vis was “easily distinguishable” from the application in this matter. He noted that the applicant’s wages in Hi-Vis were below the high income threshold and the case involved, as in the “vast majority of these matters”, an assessment of various additional benefits provided to an employee in calculating whether the relevant cap was exceeded. Mr Moore submitted that in this application, by contrast, the applicant’s actual wages exceeded the high income threshold and, as such, there is no need to conduct any further assessment as to the monetary value of any additional benefits of the type considered in Hi-Vis. Mr Moore submitted his research had uncovered only one decision where the wages and other amounts took payments to an applicant above the high income threshold, but that case was also distinguishable as it had turned on issues involving a reimbursement-type, living-away-from-home allowance: Mr Lee C v CLS Pty Ltd [2009] FWA 779. I accept Mr Moore’s submission that the cases to which reference was made are distinguishable from the circumstances of this application.

[22] Section 332 of the Act provides the following definition of “earnings”:

[23] Further, the Fair Work Act Regulations 2009 relevantly read as follows:

[24] As to the matters raised by the applicant in relation to the wages of $115,605, Mr Moore submitted “there is no merit or basis under the Act or Regulations for the Applicant’s contention that his annual rate of earnings should be reduced by the value of the deductions he claims in his personal tax return for work related expenses”. He submitted that the applicant’s 2008/2009 tax return is irrelevant, in circumstances where it was common ground the applicant’s wages were $115,605. Mr Moore submitted the applicant had personal use of his own mobile telephone and vehicle, and had tendered evidence as to the work-related deductions legitimately claimed as part of his income tax return. Mr Moore submitted this is “where these matters appropriately lie”, and that work-related income tax deductions did not reduce the applicant’s earnings; specifically, those deductions did not reduce his “wages” within the meaning of s.332(1)(a) of the Act.

[25] The applicant’s evidence indicated he received a “car and phone allowance” until 2009, at which time the allowance was discontinued with advice from the respondent’s general manager to the applicant that he “would be financially better off receiving a gross payment of a higher salary and making the deductions for work related expenses through his own tax return.” From that time, the applicant did not receive a separate allowance, but instead received an increase in his base wages. It is not contested that the applicant used his own vehicle and mobile telephone for work-related purposes and that he incurred expenses thereto. In this respect, the respondent’s general manager, Stephen Harris, confirmed the applicant was required “as part of the agreement” to use his vehicle for business purposes. Mr Harris’s evidence also confirmed the applicant was required to use his personal mobile telephone for work purposes, but only until early 2010 - when the respondent provided him with a mobile telephone. It is not clear how much by way of an “allowance” the applicant formerly received, or the means by which it was paid, with the applicant submitting only that he used to receive a “contribution”. It was also unclear what “higher salary” the applicant received from 2009 instead of the payment of an allowance, with the increase arising as part of a general, annual review. The higher wages came into effect around April 2009, and were back-paid to around January or February 2009.

[26] Given the body of cases in which the private/business use of employer-provided benefits such as cars has been considered in ascertaining the value of various applicants’ overall remuneration, there is, on one view of it, a certain symmetry to the contentions advanced by the applicant concerning the work-related expenses for using his private vehicle and mobile telephone having an offsetting effect on his “true income” from the respondent. That is, in cases where there has been issue about an unfair dismissal applicant’s overall remuneration in the context of salary caps concerning such applications, consideration has often been given to the private versus business money value to the employee of employer-provided cars and the like. In a reverse of the usual position that has arisen for consideration in such cases, the applicant used his own vehicle and mobile telephone for the business benefit of the respondent, and the applicant bore those expenses personally - save as to claiming them as work-related deductions in his income tax return. The applicant submits that his earnings should be reduced concomitantly by the amount of such work-related expenses, in the amount claimed (or claimable) to the ATO.

[27] Notwithstanding the position advanced by the applicant, I am inclined to accept Mr Moore’s submission that the deductions for work-related expenses claimed or claimable in the applicant’s income tax return do not appear relevantly to arise in ascertaining the applicant’s earnings for the purposes of the Act, even though they reduce his taxable income (relevantly as it concerns the income from his employment with the respondent less work-related deductions). That is, s.332(1)(a) of the Act refers specifically to “the employee’s wages”, which here were $115,605. The expenses/deductions to which the applicant has referred are not identified in the matters which are not included in an employee’s earnings under s.332(2). In this respect, I doubt income tax deductions/refunds from the ATO for work-related expenses would be considered to be “reimbursements” within the meaning of s.332(2)(b)). The Act defines the meaning of earnings and the applicant’s earnings, as wages, were above the high income threshold. If the applicant’s contentions were accepted, there could be differential outcomes in terms of whether the high income threshold had been exceeded for employees who had identical wages above the high income threshold. For example, if employee “A” chose to have a very expensive personal vehicle and employee “B” had a far less expensive personal vehicle, which they each used for identical amounts of work-related travel commitments for the same employer, employee “A” may have claims for work-related deductions that far-exceed those of employee “B” when matters such as insurance and leasing costs were taken into account. The applicant’s earnings from his employment with the respondent and the work-related expenses claimable as deductions in an income tax return made to the ATO seem to be discrete matters.

[28] If, however, I am wrong in that conclusion, the actual deductions the applicant may claim for the most recent financial year were not, in any event, in evidence. The applicant’s case proceeded on the proposition that because certain work-related expenses were claimed for 2008/2009, similar claims for deductions would again be made to, and accepted by, the ATO for the 2009/2010 financial year - but that proposition may not be sustainable. For example, the evidence indicated that, from the start of 2010, the respondent provided the applicant with a mobile telephone for work purposes.

[29] The applicant’s evidence noted the fact his most recent PAYG payment summary from his employment with the respondent recorded payments below the high income threshold, before any claim for deductions for work-related expenses. As submitted by Mr Moore, although the applicant’s most recent PAYG payment summary records a gross payment of $102,405, that income from his employment with the respondent reflects payment for only part of the financial year. The fact remains that, as at the date of dismissal, the applicant’s wages were set at $115,605 a year. Although the applicant’s wages from his employment with the respondent are recorded in the 2009/2010 PAYG payment summary at an amount below the high income threshold that is attributable to the termination of the applicant’s employment some months short of the end of the financial year, rather than establishing his earnings were below the high income threshold.


[30] Having regard to my acceptance of the objections raised by the respondent, I do not consider the applicant was, pursuant to s.382 of the Act, a person protected from unfair dismissal. An order dismissing the application has been issued in conjunction with the publication of this decision.



A. Read on his own behalf

J. Moore, National Retail Association, for the respondent

Hearing details:



July 29.

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