Bryan Crowley v Savannah Nickel Mines Pty Ltd

[2016] FWCFB 2630

[2016] FWC 1335 [Note: An appeal pursuant to s.604 (C2016/622) was lodged against this decision - refer to Full Bench decision dated 27 April 2016 [[2016] FWCFB 2630] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bryan Crowley
v
Savannah Nickel Mines Pty Ltd
(U2015/12896)

COMMISSIONER CRIBB MELBOURNE, 4 MARCH 2016

Application for relief from unfair dismissal - jurisdiction - high income threshold.

[1] Mr Bryan Crowley (the Applicant) has made an application for an unfair dismissal remedy, under section 394 of the Fair Work Act 2009 (Act), alleging that his dismissal by Savannah Nickel Mines Pty Ltd (the company, the Respondent) was unfair.

[2] The company objected to the Commission dealing with the application on the grounds that Mr Crowley earned more than the high income threshold in addition to not being covered by an award or enterprise agreement.

[3] The company’s jurisdictional objection was heard on 24 November 2015, with supplementary written submissions filed on behalf of the company, on 1 and 8 December 2015, and on behalf of Mr Crowley, on 1 December 2015.

[4] On behalf of the company, a witness statement was provided by Ms Tracey Ram, General Manager, Human Resources 1 whilst Mr Crowley also provided a witness statement.2 Mr Andrew Cameron appeared on behalf of the company whilst Mr Ian Colgrave, of Counsel, appeared for the Applicant.

1.Legislative requirements

[5] The relevant provisions of the Act, in relation to the company's objection, are section 382(b) and 332 of the Act.

[6] Section 382 of the Act reads as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $136,700 from 1 July 2015”

[7] Section 332 of the Act reads as follows:

“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 292-175 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.”

2. Introduction

[8] It was common ground that Mr Crowley met the minimum period of employment requirement (s 382(a)). It was further common ground that there was neither a modern award or an enterprise agreement which applied to Mr Crowley during his employment with the company (section 382(b)(i) and (ii)). 3 The matter in dispute requiring determination by the Commission, is whether the sum of Mr Crowley’s annual rate of earnings exceeded the high income threshold (section 382(b)(iii)). More specifically, it was common ground that the issue is whether or not the annual death cover insurance premium should be included in the calculation of Mr Crowley’s earnings, as set out in section 332(1)(a) of the act.4

[9] At the date of dismissal, it was common ground that Mr Crowley’s annual gross salary was $133,475.00. 5 In addition, Mr Crowley was also the beneficiary of death cover insurance which was paid for by the company. The premium to be paid for this insurance, as set out in the payment notice and annual statement, dated 2 August 2015, was $7447.45. This was for the period from 11 September 2015 to 10 September 2016.6 It was the company’s contention that the death cover insurance was part of Mr Crowley’s total salary package and that, if the premium of $7447.45 was added to Mr Crowley’s annual gross salary ($133,475.00), it resulted in Mr Crowley’s total earnings being $140,830.55 per annum.7 The high income threshold is $136,700.

[10] The Applicant took issue with the inclusion of the 2015/2016 insurance premium on a number of grounds. One of the grounds was that the date of Mr Crowley’s dismissal was 26 August 2015 and the premium was payable before 11 September 2015 and it covered the period from 11 September 2015 to 10 September 2016. 8 In response, the company stated that 11 September 2015 was the very last day on which the premium could be paid and that payment was being sought as early as 2 August 2015. The company relied on the 2015/2016 premium being the applicable premium as it was the one that was due and payable at the time of Mr Crowley’s dismissal.9

[11] The company also provided the death cover insurance payment notice and annual statement for the period from 11 September 2014 to 10 September 2015. This showed a premium of $6293.90. 10 It was stated that the 2014/2015 premium still placed Mr Crowley above the high income threshold.11

[12] It was conceded, on behalf of Mr Crowley, that Mr Crowley was aware of the insurance policy. 12 It was also acknowledged that Mr Crowley had received an email in relation to the most recent policy just prior to his dismissal. Mr Crowley had no recollection of receiving previous annual or yearly emails in relation to the policy but did not deny that he may have been sent them.13

[13] On behalf of the company, it was conceded that the insurance premium was not paid by way of salary sacrifice and that the insurance policy was not mentioned in Mr Crowley’s current written contract of employment. 14 In the company’s letter of offer of employment, dated 16 February 2004, reference was made to the provision of personal accident cover for various injuries up to a maximum of 8 x salary for death and total permanent disablement.15

3. Submissions and evidence

(a) The company

[14] It was submitted by the company that the insurance premium formed part of the earnings of the Applicant at the time of his dismissal. The company contended that the insurance premium fell fairly and squarely under the description set out in section 332(1)(b) as it was an amount applied or dealt with in any way on Mr Crowley’s behalf. It was stated that Mr Crowley was the only person covered by the policy and was the only person who got the benefit of the peace of mind of knowing that, in the event of his demise, his loved ones would be better off as a result of this policy. The question was asked - if the premium was not being applied or dealt with on Mr Crowley’s behalf, then on whose behalf was it being dealt with? The company argued that it must be being dealt with on behalf of the Applicant. It was stated that, to say that Mr Crowley would not be the ultimate beneficiary of the policy because it requires his death, was said to be simply beside the point. It was argued that the applicable test is not that the Applicant be the ultimate beneficiary but that there is an amount being applied or dealt with on his behalf. Therefore, from the company’s perspective, the premium falls fairly and squarely under section 332(1)(b). 16

[15] In response to the Applicant’s contention that the insurance premium should be excluded because it was the next of kin who would get the benefit of the insurance, it was argued that this was irrelevant. This was because it was stated to be a fact that insurance companies successfully sell life insurance policies notwithstanding the fact that the purchaser of the policy will not be the ultimate beneficiary. It was stated that the benefit derived by the purchasers of such policies was presumably the knowledge that the beneficiaries would be better off than would have been the case without such a policy. It was argued that the fact that Mr Crowley was not the ultimate beneficiary in no way detracted from the fact that the premium was an amount applied or dealt with on his behalf. 17

[16] The company argued that the relevant premium was the one that covered the period from 11 September 2015 to 10 September 2016 with 11 September 2015 being the very last day on which it could be paid. This was on the basis that it was the premium that was due and payable at the time of the termination of Mr Crowley’s employment. It was said that payment could have been made as early as 2 August 2015 which was the date of the notice. It was submitted that, in any event, even if the Commission accepted the Applicant’s contention that the relevant notice was the one that covered the period from 11 September 2014 to 10 September 2015, this notice would still result in lifting Mr Crowley’s income above the high income threshold. 18

[17] It was conceded by the company that the insurance policy was not mentioned in the Applicant’s current written contract of employment. However, it was stated that the Applicant continued to be part of the insurance scheme and it was never suggested that it be removed from him. However, the company argued that this was irrelevant to the question of whether it was an amount applied or dealt with in any way on the Applicant’s behalf. 19

[18] With respect to the decision of Cloghan C in Batley v Cocos Islands Co-operative Society Limited 20 (Batley), the company submitted that the Applicant’s interpretation of the word “cashable” meant something akin to being capable of being cashed out. If that were to be the case, it was stated that all benefits that were non pecuniary benefits, which were capable of being cashed out, would require that there was some measure of agreement between the employer and the employee as to the cash value of the benefit being provided. This was said to make arrant nonsense of Regulation 3.05(6) where the Commission has to enquire into matters where there is no agreement. Therefore, it could not be said that it is a necessary precondition that the benefit is able to be cashed out. It was also observed that the Commissioner had placed the word “cashable” in parentheses whenever it was used.21

[19] The only dictionary which was found to contain the word “cashable” was the 1983 addition of the Funk & Wagnall dictionary. It was said to define “cashable”/”to cash in on” as either to make a profit from or to turn to advantage. Based on these definitions, the company contended that there is no need for cash to be involved at all. It was said to be something that is either advantageous or turned to advantage that does not involve cash in any way. It was argued that in Batley, the Commissioner used the word correctly with the result that section 332(1)(b) is enlivened. 22

[20] In relation to section 332 (2)(a), the company stated that there was no mention whatsoever of insurance payments and that all of the payments mentioned are payments that are made directly by an employer to an employee. It was argued that, to seek to infer that insurance is to be read into the list of payments that could not be determined in advance, would run foul of the rules of statutory interpretation. 23

[21] Further, it was submitted that the value of the insurance premium could be determined in advance. The company referred to the decision in Tipene v Norton Goldfields Limited 24 (Tipene), in support of this contention and highlighted that Commissioner Cloghan had found that the payment of private health insurance premiums were payments which were made regularly and could be ascertained in advance. As there is no distinction to be drawn between health insurance and life insurance, it was argued that the same conclusion reached by Commissioner Cloghan should apply in this matter. It was stated that the payments can be, and are, ascertained in advance. This was because, prior to any payment being made, the insurer issues an invoice setting out the payment to be made down to the very last cent.25

[22] With respect to the argument that the amount of the payments could not be ascertained in advance, it was stated that this argument relied on going back to the point in time when the employment contract was entered into and then using this as the relevant time for making this enquiry. It was submitted that there is no warrant whatsoever for doing this as the relevant point in time is here and now. 26 Commissioner Cloghan’s decision in Tipene was referred to in this regard.27

(b) The Applicant

[23] On behalf of Mr Crowley, it was argued that there was no evidence of any negotiation, discussions with or request by Mr Crowley for the death cover insurance provided by the company. Reference was made to Mr Crowley’s witness statement where he also said that he was never told that it was part of his income. 28

[24] With respect to section 332(2)(a), it was contended that the law is such that there needs to be an ability for the payments made to be amounts which can be determined in advance. It was stated that it is payments, the amount of which cannot be determined in advance, which are excluded. The note to the legislation was said to provide some examples of payments that cannot be determined in advance (covered by paragraph (a)). These included commissions, incentive-based payments, bonuses and overtime (unless guaranteed overtime). It was stated that commissions, because they were usually based on performance, could clearly not be determined in advance as could not incentive-based payments and bonuses. In relation to overtime, it was argued that this very much relies upon the workload that exists over a period of time. 29

[25] The Applicant submitted that the death cover premiums could not have been determined in advance by either the employer or the employee at any time during the life of Mr Crowley’s employment contract and certainly not at the time of entering into the most recent employment contract. It was stated that all that could have been said to Mr Crowley would have been that the company will provide him with life insurance cover which the company will pay for. However, there could not have been any amount ascribed for that premium at the time that discussion took place. This is because the premiums vary from year to year and also insurance companies vary the benefits payable from year to year. It was stated that it would not make any sense to find that there was an amount payable by the employer which could be determined in advance in the form of this insurance premium. Therefore, the Commission should find that the premium amount could not be determined in advance and so therefore should not be included in the Applicant’s earnings. 30

[26] In terms of the company’s argument that Mr Crowley’s salary varied from year to year and so therefore the premium should not be disregarded, it was argued that the Act defines an employee’s salary for the purpose of the high income threshold being determined as at the date of dismissal. This was said to be clearly and easily obtainable by looking at what the actual salary was at the time of dismissal. 31

[27] It was submitted that section 332(1)(b) requires addition to any base salary of an “amount supplied or dealt with in any way on the employee’s behalf, or as the employee directs”. The Commission was again referred to the decision in Batley. 32 It was argued that this decision discussed the context of the provision which was described as requiring an amount “which is expended on the employee’s behalf and (which forms) part of their “cashable” salary or wages”.33 The Applicant argued that the insurance paid for by the company could not be regarded as “cashable” at the employee’s behest. Therefore, it could not be included as part of Mr Crowley’s earnings under section 332(1)(b) of the Act.34

[28] The Applicant submitted that, in relation to section 332(1)(c) of the Act, earnings can include “the agreed money value of non-monetary benefits”. It was argued that this section was not applicable in this matter. This was because there was no evidence that there has been any agreement by Mr Crowley and the company with respect to the “reasonable money value” for the benefits. There were said to simply be a statement as to what the relevant insurer’s annual premium was and the benefits payable according to its policy. The Commission was referred to the decision of Wilson C in Robinson v Gandel 35 in support of this submission.36

[29] It was contended that, in relation to section 332(2)(c), there were no amounts or benefits prescribed by the Regulations. 37

[30] The Applicant submitted that, in terms of the requirements of section 332(2)(a), it could not be contended by the company nor the Applicant that, at the time of entering into the employment contract, it was able to determine in advance, the amount which would be payable as a premium for some stage in the future. This was on the basis of the evidence of variation in the sums insured and premiums payable on the face of the policy documents themselves. Therefore, it was stated that the amount payable for the policy could not be included in Mr Crowley’s earnings. 38

[31] It was noted that there are a number of decisions of the Commission dealing with motor vehicle benefits as part of a remuneration package. The Full Bench decision in Rofin Australia Pty Ltd v Newton 39 (Rofin) was referred to in this regard.40

[32] With respect to Regulation 3.05(6)(a), the Applicant argued that Mr Crowley would never be entitled to receive the benefit of the death cover policy himself as it would only ever be payable on his death. The provisions of the Act and the Regulations were said to relate to personal benefits payable to an employee whilst alive. 41

[33] In terms of the decision of Tipene, the Applicant submitted that there is limited explanation of the factual scenario regarding the payment of private health insurance premiums which were found to form the basis for Mr Tipene exceeding the high income threshold. 42 It was stated that the majority of this decision concerned the extension of time application and so there was little or no discussion of whether the non-monetary benefit of the health insurance premiums fell within section 332(1)(b) (an amount supplied or dealt with on the employees behalf or (c) (the agreed money value of non-monetary benefits). As there was a considerable amount of uncertainty in relation to the factual basis of the quarterly payments, it was contended that it would be unsafe for the Commission, in this matter, to place much reliance on the findings in Tipene.43

[34] Further, it was stated that the findings of Commissioner Cloghan indicated that the entitlement to receive the benefit of the payment of private health insurance was noted as part of Mr Tipene’s contract of employment. This was stated to be distinguishable from the situation with Mr Crowley and his current contract of employment. 44

[35] In relation to the issue of “cashability” of the benefits of the death cover to Mr Crowley (which would only be available to others once Mr Crowley had died), these were said to be distinguishable from the “cashability” or entitlement to receive the benefit of health insurance premiums whilst still alive. 45

[36] On behalf of Mr Crowley, it was also submitted that there can be no suggestion that the situation is one of a salary sacrifice benefit or that it has ever been part of the terms and conditions of Mr Crowley’s current employment contract. It was stated that there is nothing in Mr Crowley’s current employment contract which says anything about the death cover insurance policy. 46

[37] Further, it was contended that insurance premiums change from year to year and so therefore, they are not able to be determined in advance by either the employer or the employer. It is a premium set by the insurer. In addition, it was stated that the date that the premium was payable was 11 September 2015 (set out in a letter dated to August 2015) for the period from 11 September 2015 to 10 September 2016. This was said to be in the context of Mr Crowley’s date of dismissal being 26 August 2015, thereby making the premium quoted irrelevant. 47 This was argued to result in the fact that the premium was payable for a period after the termination of Mr Crowley’s employment.48 It was submitted that there was no evidence before the Commission as to the actual premium which meant that the Commission could be satisfied that the premium should not be included as part of Mr Crowley’s earnings.49

[38] As well, the Applicant argued that, on the basis of the document, the plan owner was Panoramic Resources Limited and not the Respondent. It was said that there was no evidence before the Commission about the relationship between the Respondent and Panoramic Resources Limited. 50 Therefore, it was contended that the Commission could not be satisfied that the premium should be included in Mr Crowley’s earnings.51

[39] The Applicant submitted that the scheme of the Act clearly provides for particular amounts that are not to be included in an employee’s earnings e.g. reimbursements, contributions to a superannuation fund etc. Therefore, it was stated that the legislation did not intend to include all amounts paid for the benefit of employees by employers such that the high income threshold would capture them. This was said to include the death cover insurance premium in this matter. 52

[40] It was submitted that there are a number of facts that indicate that the premium in question was not intended by the Act to be included in an employee’s earnings. The first was that it is not a benefit that Mr Crowley can gain the benefit of himself. In relation to the decision in Batley, it was argued that Commissioner Cloghan was using the term in the context of contemporary industrial relations parlance. It was said to mean an amount which an employee can at any stage call upon as being payable to him/her personally as part of their remuneration package. It was stated that it was of no assistance to look at dictionary definitions of “cashable”, including a Funk & Wagnalls’ definition. Rather, the Commission and its predecessors, were said to have always dealt with terms used in everyday industrial relations, in a way in which they were generally understood. It was argued that the insurance premium paid for by the company could not in any sense of the word used by Commissioner Cloghan be regarded as cashable at Mr Crowley’s behest, and therefore, could not be included as part of his earnings. 53

[41] It was said to have been agreed that the death coverage was only payable upon the unfortunate event of Mr Crowley’s death. Therefore, it was argued that, to suggest that an amount paid for that insurance is somehow cashable by Mr Crowley as an employee, was not what Commissioner Cloghan nor the parliament intended in respect to what should be determined as the earnings of an employee. This was because these amounts were only payable should Mr Crowley die. Therefore, it was submitted that section 332(1)(b) cannot apply to the premium amount. 54

4. Considerations and Conclusions

[42] It was common ground that the issue requiring determination by the Commission is whether or not the death cover insurance premium, paid by the company for Mr Crowley, should be included in calculating the amount of Mr Crowley’s earnings. If the Commission finds that the cost of the insurance premium (for either 2014/2015 or 2015/2016) should be included, this will lift Mr Crowley’s earnings above the high threshold income level.

[43] There was a dispute between the parties as to which insurance premium notice was the relevant notice. It was the company’s view that the applicable premium notice was the one that was due and payable at the time of termination of Mr Crowley’s employment, namely the 2015/2016 notice. The company stated that the notice provided that 11 September 2015 was the very last day on which the notice could be paid and that payment was being sought as early as 2 August 2015. In addition, it was said that the notice contained a statement which said that if payment had been made since 2 August 2015, to please disregard the letter. It was argued that, as far as the insurer was concerned, the notice was payable and could easily be paid, not only prior to the date of termination but even prior to the date of the notice.

[44] On the other hand, the Applicant argued that the notice relied on by the company was not the relevant premium at the date of dismissal because this was not the premium payable at the date of dismissal. The date the premium was stated to be payable was 11 September 2015 and was said to cover the period from 11 September 2015 to 10 September 2016.

[45] Initially, the insurance premium notice relied on by the company was the one that covered the period 11 September 2015 to 11 September 2016. 55 A further insurance premium notice was subsequently provided by the company which covered the period from 11 September 2014 to 10 September 2015.56 As the date of Mr Crowley’s dismissal was 26 August 2015, it would seem that the relevant insurance premium notice (and amount payable) is the amount contained in the 2014/2015 notice. The cost of the premium for that period (2014/2015) was $6293.90 which was paid around 29 August 2014. The 2015/2016 insurance premium notice was due to be paid prior to 11 September 2015 and does not seem to have been paid before Mr Crowley was dismissed. Therefore, for the purposes of determining the jurisdictional objection, the relevant insurance premium notice was the one that was paid around 29 August 2014 and which covered the period from 11 September 2014 to 10 September 2015. As Mr Crowley was dismissed on 26 August 2015, the 2014/2015 notice covers the period up to the date of his dismissal and the payment was made by the company whilst Mr Crowley was an employee.

[46] As set out in paragraph 13 above, the letter of offer, dated 16 February 2004, which was sent by the company to Mr Crowley, provided for personal accident insurance, in the following terms:

“ 8. Insurance
The Company is legally required to have Workers Compensation Insurance for all its employees. The Company has additional Insurance Policies in place as follows:

a) Personal Accident Insurance

The Company provides 24-hour personal accident cover for various injuries up to a maximum of 8 x salary for death and total permanent disablement.

b) Company-related Travel Insurance

If you are travelling on Company-related business, the Company provides a level of general travel insurance.” 57

[47] It was common ground that Mr Crowley’s current contract, at the time of his dismissal, did not provide for personal accident insurance. However, it was also common ground that, notwithstanding this, personal accident insurance had continued to be provided by the company for Mr Crowley. Ms Ram’s evidence was that Panoramic Resources Limited is the Respondent’s parent company.

[48] It has already been found that the relevant insurance payment notice is the one dated 3 August 2014 which covered the period from 11 September 2014 to 10 September 2015. The premium payment notice and annual statement states that the Plan owner is Panoramic Resources Limited with the Insured person being Mr Crowley.

[49] In addressing the requirements of section 332 (1) as to what is included in “earnings”, the issue in dispute between the parties is whether the insurance premium payment is to be included in Mr Crowley’s earnings. Specifically, it is whether or not the annual premium payment was an amount applied or dealt with in any way on the employee’s behalf (section 332 (1) (b)).

[50] It was argued by the company that the annual premium payment was an amount applied or dealt with in any way on the employee’s behalf. This was on the basis that Mr Crowley was the only person covered by the insurance policy and the only person who benefited from the peace of mind of knowing that, in the event of his demise, his loved ones would be better off as a result of the policy. On the other hand, it was contended that, as the Applicant was not (and could not be) the ultimate beneficiary of the policy, the policy premium was not an amount applied or dealt with on the Applicant’s behalf.

[51] As indicated earlier, the premium payment notice states that the Plan owner is Panoramic Resources Limited (the Respondent’s parent company) with Mr Crowley as the Insured person. Mr Crowley’s letter of offer stated that, in addition to the legally required Workers Compensation insurance, the company provided 24 hour personal accident insurance (clause 8 (a)) and also company related travel insurance when travelling on company related business (clause 8 (b)). From the letter of offer, it would therefore seem that the situation was one whereby the company provided Mr Crowley with 24 hour personal accident insurance (death cover). This is supported by the Plan being in the company’s name rather than in Mr Crowley’s name.

[52] Having carefully considered all of the material before me, I have formed the view that the 2014/2015 death cover insurance premium, paid by the company for Mr Crowley around 29 August 2014, does not fall under section 332 (1) (b) as being an amount applied or dealt with in any way on the employee’s behalf. This is because the Plan was taken out in the company’s name and not in Mr Crowley’s name. For the premium to be an amount applied or dealt with on the employee’s behalf, it would flow that the policy would be in Mr Crowley’s name. Mr Crowley is a beneficiary of the policy but the policy is in the name of the company. It is the company’s policy. The premium paid by the company was paid for the company’s insurance plan so, therefore, may not fairly be described as an amount applied or dealt with on the employee’s behalf. The premium was paid on the company’s behalf for its insurance cover. Mr Crowley is the named beneficiary, but the company is identified as the owner of the plan.

[53] It was conceded by the company that this was not a salary sacrifice situation. If it had been, in accordance with the Full Bench decision in Rofin, the insurance premium payment would be included as part of Mr Crowley’s earnings.

[54] However, payment by the company of the death cover insurance premium does not appear to be part of the wages/work bargain agreed between the company and Mr Crowley. Rather, it may be described as somewhat akin to the company’s provision of other insurance policies which were set out, together with the personal accident insurance, in the offer of employment letter, namely, the Workers Compensation insurance and the Company related travel insurance. These insurance policies do not appear to be part of the wages/work bargain that was agreed between Mr Crowley and the company. Rather, they seem to have been provided to Mr Crowley as part of company policy.

[55] The parties were asked to make submissions in relation to the decision in Tipene. These submissions have been carefully considered. I have formed the view that the decision in Tipene can be distinguished from this matter for the following reasons. In Tipene, the premiums for Mr Tipene’s private health insurance were paid by the company, on Mr Tipene’s behalf. The private health insurance, which was paid for by the company, was in Mr Tipene’s name. However, in this matter, it was the company who took out the death cover plan for Mr Crowley. The plan was not in Mr Crowley’s name but in that of the company. It appears to be the case that Mr Crowley’s death cover ceased when he was dismissed. In the case of Mr Tipene, as the private health insurance was in Mr Tipene’s name, it presumably continued on after his dismissal – except that the premiums were no longer being paid on Mr Tipene’s behalf by the company i.e. Mr Tipene’s private health insurance did not automatically cease on his dismissal. The factual situation in Tipene, including the contractual position, is quite different to that in this matter. I concur with Commissioner Coghlan’s view that, in the case of Mr Tipene, Mr Tipene’s health insurance premiums formed part of his earnings. However, the factual situation is different in this case and therefore distinguishable from the decision in Tipene.

[56] Therefore, for the reasons set out above, I find that the death cover premium payment made by the company does not fall under section 332 (1) (b) of the Act. Therefore, the amount of the premium is not included in Mr Crowley’s earnings. Accordingly, I find that the sum of Mr Crowley’s annual rate of earnings, at the time of his dismissal, was $133,475. At the time of Mr Crowley’s dismissal, the high income threshold was $136,700.

[57] Therefore, in relation to the requirements of section 382 (b) (iii), I find that the sum of Mr Crowley’s annual rate of earnings is less than the high income threshold. Accordingly, as the requirements of sections 382 (a) and (b) have been met, I find that Mr Crowley is a person protected from unfair dismissal.

[58] The company’s jurisdictional objection is dismissed. An order 58 to this effect will be issued separately. The application will be referred for conciliation.

COMMISSIONER

Appearances:

I Colgrave of Counsel for the Applicant

A Cameron for the Respondent

Hearing details:

2015.

Melbourne, Perth and Adelaide (video hearing):

November 24.

Final written submissions:

Respondent, 1 December 2015

Applicant, 1 December 2015

Respondent, 8 December 2015

 1   Exhibit R1

 2   Exhibit A1

 3   Transcript PN 17 and 19

 4   Ibid PN 52 - 54

 5   Exhibit R2 at paragraph 4 and Exhibit A2 at paragraph 4

 6   Exhibit R1 at Appendix A

 7   Exhibit R2 at paragraph 6

 8   Transcript PN 33 - 35

 9   Transcript PN 41 and Respondent’s Submissions, dated 1 December 2015, at paragraph 6

 10   Respondent’s Submissions, dated 1 December 2015

 11   Ibid at paragraph 6

 12   Transcript PN 94

 13   Ibid PN 100 - 106

 14   Respondent’s Submissions, dated 1 December 2015, at paragraphs 1 and 3 and Respondent’s Concluding Submissions, dated 8 December 2015, at paragraph 4

 15   Exhibit A1 at Attachment BC 1 at paragraph 8(a)

 16   Transcript PN 57 – 58, Respondent’s Submissions, dated 1 December 2015, at paragraphs 1-2 and Respondent’s Concluding Submissions, dated 8 December 2015, at paragraph 6

 17   Respondent’s Submissions, dated 1 December 2015, at paragraphs 10 - 11

 18   Transcript PN 37 - 41, 45 and 52

 19   Respondent’s Submissions, dated 1 December 2015, at paragraphs 3 – 4 and Respondent’s Concluding Submissions, dated 8 December 2015, at paragraphs 4 – 5

 20   [2010] FWA 2289

 21   Transcript PN 59 – 65 and Respondent’s Submissions, dated 1 December 2015, at paragraph 13

 22   Transcript PN 69 - 77

 23   Respondent’s Submissions, dated 1 December 2015, at paragraph 14

 24   [2014] FWC 2752

 25   Respondent’s Submissions, dated 1 December 2015, at paragraphs 18 – 21

 26   Respondent’s Concluding Submissions, dated 8 December 2015, at paragraphs 1 – 2

 27   Ibid at paragraph 3

 28   Exhibit A1 at paragraphs 17 - 18

 29   Transcript PN 135 - 136

 30   Ibid PN 137 - 138

 31   Ibid PN 139

 32   [2010] FWA 2289

 33   Exhibit A2 at paragraph 9

 34   Exhibit A2

 35   [2013] FWC 4583

 36   Exhibit A2 at paragraphs 11 - 13

 37   Ibid at paragraph 14

 38   Ibid at paragraphs 15 - 16

 39 (1997) 78 IR 78

 40   Transcript PN 141

 41   Exhibit A2 at paragraphs 17 - 19

 42   Applicant’s Supplementary Jurisdictional Hearing Submissions, dated 1 December 2015, at paragraph 2

 43   Ibid, at paragraphs 3 - 9

 44   Ibid at paragraph 2

 45   Ibid at paragraph 13

 46   Transcript PN 123

 47   Ibid PN 35 and 125

 48   Ibid PN 124

 49   Ibid PN 126 - 127

 50   Ibid

 51   Ibid PN 127

 52   Ibid PN 128 - 130

 53   Ibid PN 131 - 132

 54   Ibid PN 133

 55   Exhibit R1 at Appendix A

 56   Respondent’s Submissions, dated 1 December 2015

 57   Exhibit A1 at attachment BC 1

 58   PR577713

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