FWC High Income Threshold Decisions – to satisfy the provisions of the Fair Work Act and to be able to claim relief via the Fair Work Commission an employee must earn under the High Income Threshold, currently set at $138,900.00 per annum.
FWC High Income Threshold Decisions
Scarborough v Sandfire Resources NL t/a Sandfire Resources NL
TERMINATION OF EMPLOYMENT – high income threshold – modern award coverage – ss.382, 394 Fair Work Act 2009
This decision concerns an application made by Mr Nigel Scarborough for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of his employment by Sandfire Resources NL T/A Sandfire Resources NL (Sandfire).
Mr Scarborough argues that his employment was covered by the Manufacturing and Associated Industries and Occupations Award 2010 (manufacturing award) or the Mining Industry Award (mining award) and therefore he was protected from unfair dismissal under s.382(b)(i) of FW Act
Sandfire contended that Mr Scarborough was not protected from unfair dismissal on the basis that his annual rate of earnings exceeds the current high income threshold and the applicant’s employment is not covered by a modern award or enterprise agreement
The Commission held that the respondent business did not operate in the manufacturing industry, but in the mining industry, and so the applicant was not covered by the manufacturing award – held that the applicant was a supervisor, but that supervisors are not covered by the mining award [Fry], [McMillan and Norman]
The commission held that applicant was therefore not a person protected from unfair dismissal, as he was above the high income threshold and was not covered by and enterprise agreement or award, the application was dismissed.
Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc947.htm
FWC High Income Threshold Decisions
St George v Gold Coast Turf Club Ltd t/a Gold Coast Turf Club
TERMINATION OF EMPLOYMENT – high income threshold – modern award coverage – ss.382, 394 Fair Work Act 2009
The decision arises from an application by Mr Dale St George for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 Mr St George was the Chief Executive Officer of the Gold Coast Turf Club Limited.
The Turf Club objected to Mr St George’s application on the basis that it alleged that Mr St George’s earnings were more than the high income threshold.
The Turf Club submitted that Mr St George is not covered by the Award on a number of bases:
- The employment agreement entered into explicitly states that the position of CEO is considered to be Award free;
- The Award does not cover employers in the Racing industry;
- The Turf Club does not fall within the definition of “Club” in the Award; and
- The classification definitions submitted do not apply to a manager at CEO level.
Mr St George submitted that he is covered by the Award because:
- The Turf Club is a “Club” as defined in the Award;
- The principal purpose of the position held by Mr St George falls within the classification definition of “club manager” in the Award and, more particularly, a ‘Level G manager’; and
- The Award contemplates high income club managers by the inclusion of provisions exempting certain managers from Award entitlements where they earn more than 50% above the minimum.
The Commission found respondent (Turf Club) operates for benefit of members, however, it was not not persuaded that a club that promotes and holds racing events is conducted for the benefit of the community.
The Commission was not satisfied that the respondent is a ‘Club’ within definition of the Award and held that even if wrong in that conclusion, the respondent is not covered by operation of the exclusions in coverage of the Award.
The Commission not satisfied applicant was covered by modern award and therefore the applicant was a person protected from unfair dismissal, the application was dismissed.
Senior Deputy Commissioner Drake stated
“I am satisfied and find that the sum of Mr St George’s annual rate of earnings is not less than the high income threshold. It is agreed that no enterprise agreement applies to Mr St George. I am not satisfied that Mr St George is covered by a Modern Award. Therefore, I am satisfied that Mr St George is not a person who was protected from unfair dismissal at the time of his termination of employment. On this basis his application must be dismissed.”
Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc451.htm
FWC High Income Threshold Decisions
Wigglesworth v Warringah Plastics P/L
TERMINATION OF EMPLOYMENT – high income threshold – ss.332, 382, 394 Fair Work Act 2009
Mr Michael Wigglesworth (Applicant) applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). The Applicant was employed in the position of Business Development and Accounts Manager for the states of Victoria and South Australia with Warringah Plastics Pty Ltd (Respondent) commenced that position on 1 July 2015.
The Applicant was advised of the dismissal by letter on 8 July 2016. It was not in dispute that the Applicant’s employment was terminated by the Respondent on 8 July 2016 effective immediately. Although the dismissal was effective immediately, the Termination Letter made it clear that the Applicant would receive one months’ pay in lieu of notice.
The Termination Letter provided that “our decision is based solely on a commercial basis in that the business you brought across from Kema Plastics is not sufficient to justify a full time Account Manager and with no significant new business generated since your commencement, we have no option other than to server our ties”.
The Respondent maintained that at the time of the his dismissal, Mr Wigglesworth’s employment was not covered by a modern award or enterprise agreement, and he earned more than the high income threshold and was therefore is unable to make an application for an unfair dismissal remedy. The Respondent also contended that Mr Wigglesworth was not covered by a modern award or that no enterprise agreement applied at the time of his dismissal, this matter was not in dispute.
The Commission satisfied that at the time of the applicant’s dismissal, his guaranteed salary was $120,000.00, he received a vehicle allowance of $15,000.00 and that other amounts sought to be included by respondent do not form part of the sum or amount contemplated by s.382(b)(iii) of Fair Work Act
The Commission found as a result that the total of $135,000.00 was less than the high income threshold and that the applicant is a person protected from unfair dismissal.
The respondent’s jurisdictional objection dismissed, the application was to proceed in the normal way.
Link to case- https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc7555.htm
In the subsequent unfair dismissal hearing Commission found that Mr Wigglesworth’s dismissal was unfair inn that it was was both unjust and unreasonable to dismiss him without procedural fairness. Reinstatement not sought compensation of $7,993.44 was awarded.
Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1266.htm
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