See Fair Work Act s.382
The high income threshold operates as a limit to an employee’s eligibility to be protected from unfair dismissal under the terms of the Fair Work Act.
If an employee is not covered by a modern award, or if an enterprise agreement does not apply to them, they must have an annual rate of earnings of less than the high income threshold.
See Fair Work Act s.332
Earnings include:
Non-monetary benefits are benefits other than an entitlement to a payment of money:
The Fair Work Commission has a discretion to include a benefit that is not a payment of money and that is not a 'non-monetary benefit' (within the meaning of s.332(3) of the Fair Work Act). It may do so where it is satisfied that it is appropriate to take it into account, and it can attribute a ‘real or notional’ value to the benefit, in default of any agreement between the parties.[4]
Earnings do not include:
Compulsory superannuation contributions are not included in the calculation of an employee’s earnings.[7] Any superannuation paid in excess of compulsory contributions may be included in the calculations of the employee’s earnings.
Where an employer provides an employee with a fully maintained vehicle the value of the private use of the vehicle can be included in the annual rate of earnings.[8] Use for business purposes is excluded and only the proportion of private usage can be counted as remuneration.[9]
Where there is no agreed monetary value of the benefit of the private use of a motor vehicle, the Commission will generally apply the following formula:[10]
The figure obtained is the value of the vehicle to the employee and is added to remuneration.[11]
Where an employer provides an employee with a car allowance, the allowance should be treated in the following way for the purpose of calculating an employee’s ‘annual rate of earnings’:
Fringe benefit tax is a tax that is imposed on an employer when they provide a benefit to an employee,[13] such as personal use of a company owned vehicle.
Fringe benefit tax may or may not be counted as earnings depending on whether the amount is found to be an amount dealt with as the employee directs.
[1] This figure applies from 1 July 2020.
[2] For more information on the high income threshold please see Fair Work Act s.333; Fair Work Regulations reg 2.13.
[3] High income threshold for period 1 July 2019‒30 June 2020.
[4] Fair Work Regulations reg 3.05(6).
[5] See note in Fair Work Act s.332; incentive bonuses discussed in Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137 (Giudice J, Hamilton DP, Roberts C, 23 December 2011) at para. 19.
[6] See for e.g. Schreuders v Freelancer International Pty Ltd [2015] FWC 3286 (Booth DP, 15 May 2015).
[7] Fair Work Act s.332(2)(c); discussed in Ablett v Gemco Rail Pty Ltd [2010] FWA 8124 (Williams C, 22 October 2010) at paras 31‒32.
[8] Rofin Australia Pty Ltd v Newton Print P6855 (AIRCFB, Williams SDP, Acton DP, Eames C, 21 November 1997), [(1997) 78 IR 78 at p. 82]; citing Condon v G James Extrusion Company Print N9963 (AIRC, Watson DP, 4 April 1997), [(1997) 74 IR 283 at p. 288]; cited in Slavin v Horizon Holdings Pty Ltd [2012] FWA 2424 (Bissett C, 23 March 2012) at para. 11.
[9] ibid.
[10] Kunbarllanjnja Community Government Council v Fewings Print Q0675 (AIRCFB, Ross VP, Watson SDP, Bacon C, 7 May 1998); cited in Chang v Ntscorp Ltd [2010] FWA 1952 (Hamberger SDP, 9 March 2010); see McIlwraith v Toowong Mitsubishi Pty Ltd [2012] FWA 3614 (Cribb C, 30 April 2012) at para. 34.
[11] Kunbarllanjnja Community Government Council v Fewings Print Q0675 (AIRCFB, Ross VP, Watson SDP, Bacon C, 7 May 1998).
[12] Sam Technology Engineers Pty Ltd v Bernadou [2018] FWCFB 1767 (Gostencnik DP, Clancy DP, Saunders C, 27 March 2018) at para. 72.
[13] Rofin Australia Pty Ltd v Newton Print P6855 (AIRCFB, Williams SDP, Acton DP, Eames C, 21 November 1997), [(1997) 78 IR 78 at p. 82].
[14] ibid.
[15] Chang v Ntscorp Ltd [2010] FWA 1952 (Hamberger SDP, 9 March 2010) at para. 21.
[16] ibid.