Mr Junaid Afzal v Orange Business Services Australia Pty Ltd - [2025] FWC 1968

[2025] FWC 1968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Junaid Afzal
v

Orange Business Services Australia Pty Ltd

(U2025/4594)

COMMISSIONER WALKADEN

SYDNEY, 15 JULY 2025

Application for unfair dismissal remedy – Whether a modern award covers a person – Coverage of the Professional Employees Award 2020 – High income threshold – Payment of car allowance

This decision determines two questions. One, whether Mr Junaid Afzal (the Applicant) is a person protected from unfair dismissal within the meaning of section 382 of the Fair Work Act 2009 (FW Act). Two, whether Mr Afzal should be granted an extension of time pursuant to section 394(3) of the FW Act to make an unfair dismissal application against his former employer, Orange Business Services Australia Pty Ltd (the Respondent).

The question as to whether Mr Afzal is a person protected from unfair dismissal arises in circumstances where there was no contest, and I find, that Mr Afzal satisfied the requirements of section 382(a) of the FW Act. The contest between the parties concerned the requirements of section 382(b) of the FW Act. In particular, the issues between the parties were:

· whether a modern award covered Mr Afzal (section 382(b)(i)); and
· whether the sum of Mr Afzal’s annual rate of earnings in relation to his employment with the Respondent, and such other amounts (if any) worked out in relation to Mr Afzal in accordance with regulations, was less than the high income threshold (section 382(b)(iii)).

It was accepted by the parties, and I find, that an enterprise agreement did not apply to Mr Afzal in relation to his employment with the Respondent (section 382(b)(ii)).

The application for an extension of time was sought in circumstances where Mr Afzal filed his unfair dismissal application on 14 April 2025, which was 38 days after the dismissal took effect. Mr Afzal accepts that his unfair dismissal application was filed outside of the 21 day period specified in section 394(2)(a) of the FW Act, and for his unfair dismissal application to proceed that an extension of time is required under section 394(3) of the FW Act.

On 16 June 2025, both questions were the subject of a hearing before me. Mr Afzal appeared for himself. The Respondent was represented by Ms Lisa Anaf who appeared with permission granted under section 596(2)(a) of the FW Act. At the hearing, Mr Afzal gave evidence and was cross-examined. The only witness called by the Respondent was its Head of Human Resources & Employee Experience, Ms Grace Win. Ms Win was cross-examined. All the evidence and submissions made by the parties has been considered.

In addition to those two objections, the Respondent also objected to the application by contending that Mr Afzal’s dismissal was a genuine redundancy within the meaning of section 389 of the FW Act. I determined that a separate hearing into that objection (and merits) would only become necessary if both the person protected from unfair dismissal (PPFUD Objection) and the ‘out of time’ / extension of time (OOT Objection / EOT) were determined in favour of Mr Afzal.

For the reasons explained below, I have determined that Mr Afzal was not a person protected from unfair dismissal within the meaning of section 382 of the FW Act. Given that finding, there is no utility in determining the OOT Objection / EOT. My finding as to the PPFUD Objection means Mr Afzal’s unfair dismissal application must be dismissed.

PPFUD Objection: Legislation

Section 382 of the FW Act provides that 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:
·a modern award covers the person;
· an enterprise agreement applies to the person in relation to the employment;

· 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

Whether a modern award covered Mr Afzal (section 382(b)(i))

Mr Afzal contended that he was covered by a modern award at the time of his dismissal (and throughout his employment with the Respondent). In particular, Mr Afzal contended that he was covered by the Professional Employees Award 2020 (PE Award).

The Respondent resisted both contentions and submitted that Mr Afzal was not covered by a modern award.

In a recent appeal concerning the question of whether a particular modern award covered the relevant dismissed employee (and consequently whether that relevant dismissed employee was a person protected from unfair dismissal within the meaning of section 382 of the FW Act), a Full Bench of the Fair Work Commission in Kestrel Coal Pty Limited v Odette Lennox[2025] FWCFB 114 explained that “when a modern award covers an employer or employee is dealt with in s 48(1) which provides, relevantly, that a modern award covers an employer or employee if the award is expressed to cover the employer or employee”.[1] The Full Bench explained that:
[9] Determination of whether an employer or employee is covered by a modern award is likely to involve questions concerning the construction of its coverage terms as well as a factual question as to the application of those terms in the particular employment at issue. In Gourabi v Westgate Medical Centre [2019] FWCFB 3874, for example, the Full Bench explained:

... For relevant purposes, each modern award has a “coverage” clause that determines “the employers, employees, organisations and outworker entities” that are covered by it. The determination of whether a particular employment falls within the “coverage” clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.

The Full Bench further explained (citations omitted):
[16] The question of whether a particular award classification is appropriate and thus applicable to the work performed by an employee has traditionally been resolved by the application of the principle of “major and substantial employment” or an examination of the “principal purpose” of the employment. That assessment does not involve merely quantifying the time spent on the various elements of work performed by an employee. Rather, an examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work. Further, it is not necessary that there be perfect correspondence between the classification descriptions, job-titles or indicative tasks contained in an industrial instrument. It is sufficient if the role in which a person is employed falls substantially within the scope of a classification described in the relevant award.

[17] It is important to acknowledge that, although often found to be a useful device, examination of the “major and substantial employment” or “principal purpose” of an employee’s employment is no more than aid in the task of construing and applying the relevant industrial instrument. There will be instances in which the “principal purpose” test is ill-suited to determining whether a person falls within a classification if, for example, the classifications are expressed in highly generic terms and do not describe with any specificity the job functions required to be performed at each level. The task is ultimately to construe the coverage terms of the modern award and assess whether, having regard to the evidence, the employee falls within the coverage of the award.

Construction of the coverage terms of the PE Award

Clause 4 of the PE Award is entitled ‘Coverage’. Clause 4 is reproduced below:

4.1 This industry and occupational award covers employers throughout Australia as follows:

(a) Employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule A – Classification Structure and Definitions of the award and those employees.
(b) Employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule A – Classification Structure and Definitions.
(c) Employers throughout Australia principally engaged as medical research institute with respect to their employees performing professional medical research duties who are covered by the classifications in Schedule B – Medical Research Employees and those employees.

4.2 The award does not cover employees who are covered by the following awards:

(a) Airport Employees Award 2020;
(b) Black Coal Mining Industry Award 2020;
(c) Electrical Power Industry Award 2020;
(d) Nurses Award 2020;
(e) Port Authorities Award 2020;
(f) Rail Industry Award 2020;
(g) State Government Agencies Award 2020; and
(h) Water Industry Award 2020.

4.3 The award does not cover employees of a local government covered by another award.
4.4 This award covers any employer which supplies labour on an on-hire basis in the industries set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the of work for a business in those industries. Clause 4.4 operates subject to the exclusions from coverage in this award.
4.5 This award covers any employer which supplies on-hire employees in classifications set out in Schedule A – Classification Structure and Definitions and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. Clause 4.5 operates subject to the exclusions from coverage in this award.
4.6 This industry and occupational award does not cover:
(a) an employee excluded from award coverage by the Act;
(b) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), or employers in relation to those employees; or
(c) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), or employers in relation to those employees;

4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

The PE Award is a hybrid award. That is because the coverage of the PE Award includes occupational coverage, which is expressed at clause 4.1(a), and industry coverage, which is expressed at clauses 4.1(b) & (c).

Clause 4.1(a) of the PE Award refers to professional engineering and professional scientific duties.

Mr Afzal did not contend that he was performing professional scientific duties as defined in clause 2.4 of the PE Award. Therefore, it is unnecessary to consider the performance of professional scientific duties.

Mr Afzal contended that he was performing professional engineering duties as defined in clause 2.2 of the PE Award. Clause 2.2 of the PE Award, which is entitled ‘Engineering Stream’, is reproduced below:

2.2 Engineering stream

Experienced engineer mean a Professional Engineer with the undermentioned qualifications engaged in any particular employment where the adequate discharge of any portion of the duties requires qualifications of the employee as (or at least equal to those of) a member of Engineers Australia. The qualifications are as follows:
(a) membership of Engineers Australia;
(b) having graduated in a 4 or 5 year course at a university recognised by Engineers Australia, 4 years’ experience on professional engineering duties since becoming a Qualified Engineer; or
(c) not having so graduated, 5 years of such experience.

Graduate engineer means a person who is the holder of a university degree (4 or 5 year course) recognised by Engineers Australia or is the holder of a degree, diploma or other testamur which:

(a) has been issued by a technical university, an institute of technology, a European technical high school (technische hochschule) or polytechnic or other similar educational establishment; and
(b) is recognised by Engineers Australia as attaining a standard similar to a university degree; and has been issued following:
(i) a course of not less than 4 years’ duration for a full-time course after a standard of secondary education not less than the standard of examination for matriculation to an Australian university; or
(ii) a part-time course of sufficient duration to obtain a similar standard as a 4 year full-time course after a similar standard of secondary education.

Professional engineer means a person qualified to carry out professional engineering duties as defined. The term professional engineer includes graduate engineer and experienced engineer as defined in clause 2.2.
Professional engineering duties means duties carried out by a person in any particular employment, the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) of a graduate member of Engineers Australia.

Clause 4.1(b) of the PE Award refers to employers principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry. It was submitted by Mr Afzal and accepted by the Respondent, that the Respondent is an employer principally engaged in the telecommunications services industry. Clause 2.3 of the PE Award defines the telecommunications services industry in the terms set out below:

Telecommunications services industry means:
(a)   the supply and/or installation of and/or maintenance of telecommunications services; or
(b)   the supply and/or installation of and/or maintenance of value added telecommunications services; or
(c)   incidental, ancillary or complementary to the supply and/or installation and/or maintenance of telecommunications services; or

(d) the installation and/or maintenance of telecommunications equipment and line.

As it is accepted by the parties that the Respondent is principally engaged in the telecommunications services industry, it is unnecessary to consider the other industries covered by clause 4.1(b) (namely, the information technology industry and the quality auditing industry). I note that neither party submitted that the Respondent was principally engaged in either of those industries. The same can be said about clause 4.1(c) of the PE Award.

Schedule A – Classification Structure and Definitions (Schedule A) is referred to in both clause 4.1 (a) & (b) of the PE Award. In addition to satisfaction of the other elements in either clause, an employee will only be covered by the PE Award if they are also covered within one of the classifications in Schedule A (unless they are covered by clause 4.1(c) of the PE Award). The introductory paragraph in Schedule A is reproduced below:

An employee performing professional engineering duties, professional scientific duties, professional information technology duties or quality auditing must be classified in one of the following classifications provided that the employee is not employed in a wholly or principally managerial position.

The classification structure in Schedule A contains 4 levels. These are:

·Level 1—Graduate professional includes: Graduate engineer, Graduate information technology employee and Qualified scientist;

·Level 2— Experienced engineer, Experienced information technology employee and Experienced scientist (and the Level 2—Quality auditor, which is clearly irrelevant to Mr Afzal);

·Level 3—Professional (and the Level 3—Senior (lead) auditor, which is clearly irrelevant to Mr Afzal); and

·Level 4—Professional.

Each classification is described in Schedule A by reference to indicative tasks, skills and experience. For example, clause A.1.9 of Schedule A describes a Level 3 – Professional (which was the classification that Mr Afzal submitted covered his employment with the Respondent) is reproduced below:

A.1.9 Level 3 – Professional

(a) An employee at this level performs duties requiring the application of mature professional knowledge. With scope for individual accomplishment and coordination of more difficult assignments, the employee deals with problems for which it is necessary to modify established guides and devise new approaches.
(b) The employee may make some original contribution or apply new professional approaches and techniques to the design or development of equipment or products.
(c) Recommendations may be reviewed for soundness of judgment but are usually regarded as technically accurate and feasible. The employee makes responsible decisions on matters assigned, including the establishment of professional standards and procedures. The employee consults, recommends and advises in speciality areas.
(d) Work is carried out within broad guidelines requiring conformity with overall objectives, relative priorities and necessary cooperation with other units. Informed professional guidance may be available.
(e) The employee outlines and assigns work, reviews it for technical accuracy and adequacy, and may plan, direct, coordinate and supervise the work of other professional and technical staff.

On application of the settled principles used to interpret an award,[2] I make the below findings as the proper construction of the PE Award. These findings are relevant to determination of the PPFUD Objection.

One, an employee will only be covered by the PE Award if clause 4.1(a), 4.1(b) or 4.1(c) is satisfied.

Two, an employee will only be covered by clause 4.1(a) of the PE Award if they are performing professional engineering duties as defined by clause 2.2 of the PE Award (or performing professional scientific duties, which is irrelevant to the determination of the PPFUD Objection) and covered by a classification in Schedule A.

Three, whether an employee is performing professional engineering duties as defined by clause 2.2 of the PE Award involves questions of fact. There are two such questions of fact that must be answered in the affirmative to support a finding that the employee is performing professional engineering duties. The first question is whether the employee holds one of the qualifications of an Experienced Engineer that are described in clause 2.2 or one of the qualifications of a Graduate Engineer that are described in clause 2.2. The second question is whether the adequate discharge of any portion of the duties carried out by the employee requires qualifications as (or at least equal to those of) of a graduate member of Engineers Australia.

It is evident that second question is to be approached by examining the duties performed by the employee. As much is clear from the text in clause 2.2, which I consider to be unambiguous in that respect. I reject any suggestion that second question is to be approached by considering whether the employer required the requisite engineering qualifications in any job advertisement, contract of employment or the like. In making that comment, I don’t discount the possibility that such documents may be reliable aides to assist in identifying and then examining the duties performed by the employee. The point, however, is that this second question involves assessing whether the requisite engineering qualifications are required by reference to the actual duties performed by the employee. It is also not the case that all the duties performed by the employee must require the requisite engineering qualifications to answer this second question in the affirmative. As much is clear from the inclusion of the words “any portion’’ in clause 2.2. In other words, it is conceivable that an employee performing some duties that require the requisite engineering qualifications and some duties that don’t require the requisite engineering qualifications may still be found to be performing professional engineering duties and covered by the PE Award. It is a matter of degree whether the portion of duties that requires the requisite engineering qualifications is sufficient to support a finding that the employee is performing professional engineering duties. The answer to that question is fact specific. There does not appear to be any rule of universal application as to whether the portion of duties that require the requisite engineering qualifications is ‘enough’. Finally, it is worth reinforcing that an employee will not be covered by the PE Award solely because they are a professional engineer as defined by clause 2.2 of the PE Award. Being a professional engineer means that the employee is qualified to carry out professional engineering duties as defined. In other words, this deals only with the first question of fact discussed above. The second question of fact must also be satisfied.

Four, the only employees covered by Schedule A are those performing professional engineering duties (or professional scientific duties, professional information technology duties or quality auditing). This is clear from the introductory paragraph in Schedule A. This is reinforced by the indicative tasks, skills and experience of each of the 4 levels, and the title of some of those levels. An employee that is not performing professional engineering duties (or professional scientific duties, professional information technology duties or quality auditing) is not covered by Schedule A. It follows that such an employee is not covered by clause 4.1(a) (or clause 4.1(b)) of the PE Award. If the employee is performing professional engineering duties, the employee must also be covered by one of the four levels in Schedule A. In the absence of that finding, the employee would not be covered by a classification in Schedule A. That is a question of fact, which requires consideration as to whether the indicative tasks, skills and experience of the relevant employee falls within the indicative tasks, skills and experience of one of the four levels in Schedule A.

Five, an employee will only be covered by clause 4.1(b) of the PE Award if they are employed by an employer that is principally engaged in one of the industries specified in in clause 4.1(b) and covered by a classification in Schedule A. Those industries are defined at clauses 2.3 and 2.5 of the PE Award. I also repeat my findings above with respect to Schedule A.

Six, the effect being that an employee performing professional engineering duties – which is what Mr Afzal contended was the case – could be covered by the occupational coverage of the PE Award. That is, clause 4.1(a). Furthermore, an employee performing professional engineering duties that is employed by an employer principally engaged in one of the industries specified in in clause 4.1(b) could also be covered by the industry coverage of the PE Award. That is, clause 4.1(b). If employer is principally engaged in one of those industries (as was the case here) the critical question in those circumstances is whether the employee was, as a matter of fact, performing professional engineering duties.

Submissions made by Mr Afzal

Mr Afzal’s contention that he was covered by the PE Award was advanced on the basis that:

(a) He was performing professional engineering duties as defined in clause 2.2 of the PE Award;
(b) The Respondent is an employer principally engaged in the telecommunications services industry;[3]
(c) He was covered by the Level 3 – Professional, which is a classification in Schedule A;[4]
(d) The exclusions from coverage in clauses 4.2 or 4.6 of the PE Award don’t apply.[5]

If Mr Afzal’s contentions were accepted, consistent with my findings made above as to the proper construction of the PE Award, he would be a person covered by the PE Award under both clause 4.1(a) & (b).

Submissions made by the Respondent

The Respondent conceded that it was an employer principally engaged in the telecommunications services industry. The Respondent contended that Mr Afzal was not performing professional engineering duties as defined in clause 2.2 of the PE Award. The Respondent contended that Mr Afzal was not covered by the Level 3 – Professional, or any other classification in Schedule A. The Respondent did not rely upon any of the exclusions from coverage in clauses 4.2, 4.3 or 4.6 of the PE Award.

If either of the Respondent’s contentions were accepted, consistent with my findings made above as to the proper construction of the PE Award, Mr Afzal would not be a person covered by the PE Award.

Consideration

I apply my findings as to the proper construction of the PE Award to the issues of contest between the parties. There are two such issues. One, whether Mr Afzal was performing professional engineering duties as defined in clause 2.2 of the PE Award. Two, whether Mr Afzal was covered by a classification in Schedule A. There is some repetition in those two questions. That is because an answer to the first question will partly answer the second question. For that reason, I begin my consideration by focusing on whether Mr Afzal was performing professional engineering duties as defined in clause 2.2 of the PE Award.

As explained above, the first question of fact is whether Mr Afzal holds one of the qualifications of an Experienced Engineer that are described in clause 2.2 or one of the qualifications of a Graduate Engineer that are described in clause 2.2. The material filed by the parties in advance of the hearing (and consistent with directions that I issued for the filing and service of such material) did not address this question at all. That is, Mr Afzal did not describe or provide any documents to support a finding that he held the qualifications of either an Experienced Engineer or a Graduate Engineer. The Respondent did not make submissions about this question at all – either in its material filed in advance of the hearing or at the hearing. The Respondent did not cross-examine Mr Afzal about these matters. In making these comments, I am not being critical of the Respondent. The Respondent simply decided to oppose the award coverage argument on other grounds.

At the hearing, I asked Mr Afzal some questions about his membership of Engineers Australia, and his tertiary qualifications. In summary terms, Mr Afzal confirmed that he was not a member of Engineers Australia. Mr Afzal explained that he held tertiary qualifications in engineering. It seems from the answers given by Mr Afzal that such qualifications were obtained from a university in Germany. Mr Afzal explained that his tertiary qualifications were recognised by Engineers Australia. Mr Afzal explained that such recognition was obtained while going through an immigration process to come to Australia. Mr Afzal did not describe, make submissions or provide any documents that explained his experience of performing professional engineering duties since becoming a Qualified Engineer, other than his period of employment with the Respondent. Mr Afzal was employed by the Respondent for a period of approximately 2 years and 10 months. Even if it were the case that Mr Afzal performed professional engineering duties throughout that period, unless Mr Afzal had at least approximately 1 year and 2 months performing professional engineering duties with another employer prior to commencing employment with the Respondent, it would appear that Mr Afzal may not be an Experienced Engineer within the meaning of clause 2.2(b) of the PE Award.

In very summary terms, the material before me as to this first question of fact was not as comprehensive as one would like. However, I am prepared to proceed on the basis that Mr Afzal holds one of the qualifications of an Experienced Engineer that are described in clause 2.2 or one of the qualifications of a Graduate Engineer that are described in clause 2.2. I make that finding because it is the Respondent who bear the onus with respect to its jurisdictional objection and the Respondent clearly decided not to take this point. In those circumstances, I am satisfied based on Mr Afzal’s answers to my questions at the hearing that he at least has the qualifications of a Graduate Engineer, if not an Experienced Engineer.

My finding that Mr Afzal is an engineer (or more correctly defined as a professional engineer within the meaning of clause 2.2 of the PE Award) is not a complete answer to the PPFUD Objection. As explained above, there is a second question of fact that must also be answered. That is, whether the adequate discharge of any portion of the duties carried out by Mr Afzal requires qualifications as (or at least equal to those of) of a graduate member of Engineers Australia. The facts relevant to the determination of that question are discussed below.

Mr Afzal commenced employment with the Respondent on 1 June 2022.[6] A document that was described as a Job Description / Job Advertisement (Job Description) was an annexure to Ms Win’s witness statement.[7] In cross-examination, Mr Afzal confirmed that the Job Description was the document he saw when the job that he held with the Respondent was advertised. The Job Description is reproduced below:

Role

· We are looking for a Sales Expert specialized in the Internet of Things to work in the APAC region.
· The Sales Expert will be able to clearly articulate and understand the value propositions relating to OBS IoT connectivity and solution offerings and be able to effectively present this to customer and internal stakeholders of all types.
· The Sales Expert will support Account Managers and Pre-Sales Consultants to identify, qualify and close Internet of Things opportunities throughout the APAC region.
· The Sales Expert will work with various internal stakeholders including solution experts, go to market experts and partners to identify market demands and trends to ensure our portfolio roadmap addresses true market needs.
· The Sales Expert will build trusted relationships with country managers, sales managers and account managers to ensure the Internet of Things portfolio is at the forefront of all customer engagements.
· The Sales Expert will manage the pipeline of opportunity across the region and ensure accurate reporting of status and value through the opportunity lifecycle.
· The Sales Expert will work with existing partners to clearly understand the value proposition they offer and be able to articulate this effectively to a broad audience. They will also identify new partners who offer capability to meet targeted value pools within the IoT market in APAC.
· Objectives will be to meet and exceed revenue and order targets for the portfolio in the region.
· The Solution Expert will be a part of the Smart Mobility Services Business Unit of Orange Business Services and represents the Business Unit in APAC region.

Responsibilities

· Work closely with in region sales and pre-sales resources to educate, evangelise on our IoT capabilities.
· Effectively prospect amongst existing and new customers for IoT related opportunities.
· Develop domain expertise in some or all of the following industries: resources; property services; utility; supply chain & logistics; construction.
· Clearly understand and articulate the value propositions relating to capabilities in your portfolio and work with GTM resources to effectively get the message to the target market.
· Manage the opportunity lifecycle for all IoT opportunities within the region.
· Work with Solution Experts to design and apply IoT solutions that are both technically and commercially appropriate for the business situation of our customers.
· Manage pricing and profitability of offerings to ensure financial objectives are met.
· Work with solution Experts, Account Managers, Pre-Sales to create exceptional sales proposals and tender responses.
· Identify and develop new partnerships with domain experts in target industries and technology leaders in IoT.
· Contribute to account planning to assist the sales strategy for target accounts.
· Maintain a forecast for your portfolio by working closely with sales and ensuring all information systems are updated with the relevant information relating to the opportunity.
· Work with and collaborate in multi-functional & multicultural, geo dispersed teams (sales, product, marketing, engineering, consultants).
· Define activities with GTM team to develop the pipeline. This can include defining specific campaigns either direct or in conjunction with a partner.
· Evangelize the Orange IoT strategy and value proposition via external communication and events.
· Understand the full OBS portfolio and how to leverage and augment adjacent products and solutions to ensure maximum value.

Experience and profile

· Demonstrated ability to master new technical concepts quickly.
· Understand buying behaviour and signals.
· Demonstrated expertise in structuring sales proposals and developing a business case for investment.
· Demonstrated ability to work as part of a team.
· Self-Starter, autonomous.
· Relentless customer focus.
· Sense of responsibility & ownership: results minded, tenacity with a "get it done" mind set.
· Strong written and verbal presentation skills.
· Ability to independently problem solve.
· Ability to understand and work within process boundaries.
· ‘Can do’ attitude and willingness to find new solutions to old problems
· Lateral thinker.
· Experience working with or in one of the following industries: Construction, Resources, Utility.
· Supply Chain & Logistics.
· IoT sales experience with either a technology company, system integrator or service provider.
· Multi-lingual preferred but not essential: English plus French, Cantonese, Mandarin, Japanese or Malay.
· Experience working across APAC region preferred.

The Respondent cross-examined Mr Afzal on the Job Description. Much of that cross-examination was focused on the references to a “Sales Expert” in the Job Description. Furthermore, that the Job Description did not require the successful candidate to be an engineer or hold engineering qualifications. Mr Afzal answered that “there is no explicit or formal mentioning of an engineering degree or reference to the word engineer. But the substance of the role clearly indicates that this was a requirement was a technical commercial role”. As explained above, whether the adequate discharge of any portion of the duties carried out by Mr Afzal required qualifications as (or at least equal to those of) of a graduate member of Engineers Australia is not to be approached based on whether the Job Description required the requisite engineering qualifications. The question is to be approached by examining the duties of Mr Afzal. In other words, the substance of the role.

In support of his argument that the substance of the role required the requisite engineering qualifications, Mr Afzal pointed to the first bullet point under the heading “Experience and profile”. That bullet point reads “Demonstrated ability to master new technical concepts quickly”. I accept that in performing work for the Respondent, that Mr Afzal was required to master new technical concepts quickly. I cannot make any sensible finding based on the material before me as to the portion of Mr Afzal’s total duties that were spent mastering new technical concepts quickly. I don’t accept that mastering new technical concepts quickly requires the requisite engineering qualifications. The indicative tasks, skills and experience set out in Schedule A provide some guidance the duties that may require the requisite engineering qualifications. For example, a Level 3 – Professional is expected to “modify” and “devise” (A.1.9(a)), “design” and “develop” (A.1.9(b)), “consult”, “recommend” and “advise” in specialty areas (A.1.9(c)), and “review”, and may “plan”, “direct”, “coordinate” and “supervise” other professional and technical staff (A.1.9(e)). It is evident that a Level 3 – Professional is clearly expected to do more than simply have “mastered” - or, have knowledge of - technical concepts. A Level 3 – Professional is required to have such technical knowledge and then actually use that knowledge in the manner set out in A.1.9 of Schedule A.

In further support of his argument, Mr Afzal also pointed to the first bullet point under the heading “Role”. That bullet points reads “We are looking for a Sales Expert specialised in the Internet of Things to work in the APAC region”. I adopt the same findings with respect to this bullet point as the findings made in the paragraph immediately above.

At the hearing, I asked Mr Afzal whether the roles and responsibilities set out in the Job Description were an accurate description of the duties that Mr Afzal performed for the Respondent. Mr Afzal answered “not really” and went on to explain that he had a lot more responsibilities “on the engineering side of understanding”. The only example given by Mr Afzal of such additional roles and responsibilities was “leading an indirect team of solutions architects”. Given that was the only example referred to Mr Afzal, I don’t accept Mr Afzal’s evidence that the roles and responsibilities in the Job Description was “not really” accurate. I accept that there may be some additional roles and responsibilities performed by Mr Afzal that are not referred to in the Job Description. However, I regard Mr Afzal’s attempts to suggest that he performed far more ‘engineering’ work than is set out in the Job Description as plainly directed at overcoming the PPFUD Objection. On that basis, I will have regard to the Job Description in identifying the duties that Mr Afzal performed for the Respondent.

There are nine bullet points under the heading “Role” in the Job Description. The performance of duties that are identifiable from each of those bullet points clearly does not require the requisite engineering qualifications. For example, the second such bullet point is: “The Sales Expert will be able to clearly articulate and understand the value propositions relating to OBS IoT connectivity and solutions offerings, and be able to effectively present this to customer and internal stakeholders of all types”.

There are 15 bullet points under the heading “Responsibilities” in the Job Description. The performance of duties that are identifiable from 13 of those 15 bullet points clearly does not require the requisite engineering qualifications. For example, the second such bullet point is: “Effectively prospect amongst existing and new customers for IoT related opportunities”. I am prepared to accept that the performance of duties that are identifiable from 1 of those 15 bullet points may require the requisite engineering qualifications. That being, the sixth such bullet point, which is: “Work with Solutions Experts to design and apply IoT solutions that are both technically and commercially appropriate for the business solutions of our customers” (my emphasis). In my view, it is the design and application of the Internet of Things solutions which are duties that may require the requisite engineering qualifications. I cannot make any sensible finding as to whether the performance of duties that are identifiable from the remaining bullet point requires the requisite engineering qualifications. That bullet point being: “Develop domain expertise in some or all of the following industries: resources; property services; utility; supply chain & logistics; construction”. I cannot make any sensible finding as to that bullet point because the parties did not address me on it.

There are 16 bullet points under the heading “Experience and profile” in the Job Description. Those bullet points offer limited assistance in identifying the duties that Mr Afzal performed for the Respondent and also whether such duties require the requisite engineering qualifications. That is because many of those bullet points are generic. For example, the fourth such bullet point is: “Demonstrated ability to work as part of a team”. By way of further example, the fifth such bullet point is: "Self-Starter, autonomous”. The second such bullet point is: "Understand buying behaviour and signals”. The third such bullet point is: "Demonstrated expertise in structuring sales proposals and developing a business case for investment”. The duties performed by Mr Afzal that are identifiable from those two bullet points reinforce the totality of material before me that Mr Afzal was primarily performing a sales role.

I have considered the totality of the Job Description. I am satisfied that almost all of the duties that are identifiable from that Job Description clearly did not require Mr Afzal to hold the requisite engineering qualifications.

Mr Afzal’s employment was regulated by a contract. The contract was an annexure to Ms Win’s witness statement (the Contract).[8] Mr Afzal’s initial position title in the Contract was “IoT Sr Sales Expert Australia”. Mr Afzal cross-examined Ms Win about his business title and job role. It appears to be the case that the business title refers to “the external customer facing view” and the job role was explained as an “Orange internal thing”. Ms Win accepted that from 1 July 2024 until the cessation of Mr Afzal’s employment that his business title was “Senior Solution Expert” and that Mr Afzal’s job role was “Service Architect – Senior". I note that such terminology is consistent with the certificate of service issued by the Respondent to Mr Afzal.[9] It is also consistent with Mr Afzal’s performance review for 2024 (Performance Review).[10] Mr Afzal’s initial position title, business title and / or job role is of no assistance whatsoever. Those titles say absolutely nothing about the duties performed by Mr Afzal. The question that I am focused upon is the actual duties performed by Mr Afzal – and not whatever label is placed by one and / or both parties on Mr Afzal’s employment.

The Contract specified Mr Afzal’s remuneration package. Mr Afzal’s “On Target Earnings” were comprised of a base salary and potential commissions. The potential commissions were a significant part of Mr Afzal's “On Target Earnings” - approximately 40%. At the hearing, I asked Mr Afzal whether his KPIs and bonus was predominantly based on sales performance. Mr Afzal answered “yes”. The fact that such a significant part of Mr Afzal's remuneration was based on sales performance – rather than a measure of performance more akin to the indicative tasks, skills and experience set out in Schedule A – is a factor that supports my finding that the adequate discharge of any portion of the duties carried out by Mr Afzal did not require qualifications as (or at least equal to those of) of a graduate member of Engineers Australia. To be clear, that is one factor. It not a decisive or determinative factor. It is a factor that compliments that totality of the material before me.

In reaching that finding, I have also had regard to the Performance Review. The Performance Review set out six objectives for Mr Afzal in 2024. Mr Afzal’s performance was assessed against those six objectives. The relevant part of the Performance Review is reproduced below:

Evaluation of Objectives

Team or Individual evaluation
Objective name Brand Promotion & Marketing Objective description Present IOT solutions, latest trends in internal and external Marketing events. Ensure / organise presentation (training, reference case, LinkedIn post) during OBS Sales Marketing event directly or with partners in H1 2024. Measurement No of sessions+ LinkedIn post > 2 The content and the list of people invited / present needs to be approved up-front by your direct manager at least 3 weeks before the session takes place. Measurement: Proofs (agenda, OBS presence, content, speakers) Due date 31/12/2024 Employee comment Workshops & Sessions for internal (e.g. ANZ Smart Industries GTM session, Freshworks session, Simpliconnect...) & external (e.g. Gemco MPN, Westpac SimplicConnect...) and LinkedIn posts promoting OBS solutions & services. Manager Comment Achievement level 3 - Achieved	Individual objective
Objective name Grow Pipeline Objective description Grow IOT pipeline Measurement Grow Pipeline: Qualified pipeline growth in H2 2024 > 500K Euro ; Due date 31/12/2024 Employee comment Significant growth in pipeline (>5m) with projects like SimpliConnect Westpac, MPN South32 Gemco, ServiceNow, BuildSmartt... Manager comment Achievement level 3 - Achieved	Individual objective
Objective name Good business Margin /Profitability Objective description Maintain & grow profit margin on signed deals Measurement 100% of your regional deal's Service/Gross margin > 25% Due date 31/12/2024 Employee comment Margin > 25% on all deals Manager comment Achievement level 3 - Achieved	Individual objective
Objective name Revenue Objective description New IOT Revenue Stream Measurement ANZ IOT revenue 1M Euro Due date 31/12/2024 Employee comment Partial (not fully) achieved Manager comment Achievement level 2 - Partially achieved	Individual objective
Objective name Orders book Objective description Close IOT opportunities within ANZ Measurement Close ANZ IOT deals worth 1m Euro, Due date 31/12/2024 Employee comment Partial (not fully) achieved Manager comment Achievement level 2 - Partially achieved	Individual objective
Objective name Grow: IOT Partner Ecosystem in ANZ Objective description Identify, qualify and onboard new IOT partners solutions and respectively create GTM Measurement 3 Partners onboarded, approved with respective GTM strategies Due date 31/12/2024 Employee comment IVIVA/Lucy for SmartBuildings, HPE/Athonet for MPN, Freshworks for ITSM, Webbing for Simpliconnect Manager comment Achievement level 3 - Achieved	Individual objective

It is evident that five of the six objectives point clearly to Mr Afzal’s role with the Respondent being a sales role. Those five objectives are:

a)   Brand Promotion & Marketing;
b)   Grow Pipeline;
c)    Good Business Margin / Profitability;
d)    Revenue; and
e)   Orders book

The duties that Mr Afzal performed can be readily identifiable from the Performance Review. Out of all the material before me, it appears that the Performance Review is perhaps the most reliable indicator of Mr Afzal’s duties. It is quite clear that the duties that relate to those five objectives didn’t require Mr Afzal to hold the requisite engineering qualifications. For example, the first objective is entitled “Brand Promotion & Marketing”. The duties relating to that particular objective required Mr Afzal to organise workshops and sessions, and make LinkedIn posts promoting the Respondents’ solutions and services. It is evident that an employee does not need to hold the requisite engineering qualifications to organise workshops and sessions, which promote the Respondent’s solutions and services. The same can be said about making posts on LinkedIn, which promote the Respondent’s solutions and services.

In support of his argument, Mr Afzal relied upon the sixth objective in the Performance Review. The objective name is to “Grow IOT Partner”. The objective description is recorded as “identify, qualify and onboard new IOT partners solutions and respectively create GTM” (i.e. Go To Market). The comments that relate to this objective record that Mr Afzal exceeded this particular objective in 2024. The duties that are identifiable from this objective suggests that Mr Afzal identified, qualified and onboarded four new IOT partner solutions with GTM strategies in 2024. I have my doubts as to whether the performance of such duties requires the requisite engineering qualifications. I am hesitant to find that identifying and onboarding new IOT partners are duties that require the requisite engineering qualifications. I accept that qualifying IOT partner solutions may require such qualifications. However, this was left unexplained at the hearing. Ultimately, I don’t need to make a finding about that particular matter. That is the result of an answer given by Mr Afzal to a question that I asked about this particular objective at the hearing. My question and Mr Afzal’s answer are reproduced below:

Commissioner: Just let me ask this question of you, Mr Afzal. If you are pointing to this particular objective, to grow IOT partner, would you accept the proposition that, even if that was an engineering function, that the task that relates to that particular objective are not the primary or principal purpose of your role?

Mr Afzal: The primary and principal is to sell, right. However, to do that work effectively, you need to bring a product because what may happen, Mr Commissioner, is that if you qualify a bad product as good because of your poor assessment down the road, the work you have done is in vain and you do not achieve your target. So it is a foundation. Engineering to me is the foundation for this work.

Mr Afzal’s answer to my question is consistent with the findings that I have made above with respect to the Job Description and the Performance Review. Those documents clearly point to Mr Afzal’s duties with the Respondent as being primarily sales duties. Taken at its highest, there are very few duties performed by Mr Afzal identifiable from the Job Description or the Performance Review which may require the requisite engineering qualifications. Even if those duties required the requisite engineering qualifications, Mr Afzal himself accepted that the “primary and principal” purpose of his role was “to sell”. Having regard to my findings as the duties that are identifiable from the Job Description and the Performance Review, and Mr Afzal’s acceptance that the primary and principal purpose of his role was to sell, I am not satisfied that the adequate discharge of any portion of Mr Afzal’s duties required qualifications as (or at least equal to those of) of a graduate member of Engineers Australia. As such, I find that Mr Afzal was not performing professional engineering duties as defined in clause 2.2 of the PE Award.

For the reasons explained above, that produces the result that Mr Afzal is not a person covered by the PE Award.

For completeness, I will also give some brief reasons as to whether Mr Afzal is covered by a classification in Schedule A. As explained above, my finding that Mr Afzal was not performing professional engineering duties as defined in clause 2.2 of the PE Award also produces the result that Mr Afzal was not covered by a classification in Schedule A. However, there is also an additional question as to whether Mr Afzal was covered by one of the four levels in Schedule A.

Mr Afzal contended that he was a Level 3 – Professional as described in Schedule A. There are five indicative tasks, skills or experience of the Level 3 – Professional set out in Schedule A. I adopt my findings made above as to the duties performed by Mr Afzal. Mr Afzal’s duties are inconsistent with the indicative tasks, skills or experience of the Level 3 – Professional. In very summary terms, Mr Afzal was primarily selling the Respondent’s IOT products and solutions. Mr Afzal was not primarily “modifying” and “devising” (A.1.9(a)), “designing” and “developing” (A.1.9(b)), “consulting”, “recommending” and “advising” in specialty areas (A.1.9(c)), and “reviewing” for technical accuracy, and “planning”, “directing”, “coordinating” and “supervising” other professional and technical staff (A.1.9(e)). It follows that Mr Afzal was not covered by the Level 3 – Professional or any other classification in Schedule A.

Finally, in reaching my finding that a modern award did not cover Mr Afzal, I also note that at the commencement of the hearing, I raised the possibility with the parties that Mr Afzal may have been covered by either the Business Equipment Award 2020 or the Telecommunications Services Award 2020. Based upon the submissions made by the parties and the evidence before me, I find that neither award covered Mr Afzal.

Whether the sum of Mr Afzal’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 (section 382(b)(iii))

At the time of Mr Afzal’s dismissal, the high income threshold was $175,000.

There was no dispute between the parties that, at the time of Mr Afzal’s dismissal, he was paid a base annual salary of $169,000 (exclusive of superannuation) and an annual car allowance of $12,000.[11] As explained, Mr Afzal was also entitled to be paid a bonus subject to satisfaction of performance targets.[12]

The question that arises is whether the car allowance, or part thereof, is to be included in Mr Afzal’s annual rate of earnings. That question is determinative of the inquiry posed by section 382(b)(iii) of the FW Act.

A Full Bench of the Commission in Sam Technology Engineers Pty Ltd v Mr Andrew Bernadou[2018] FWCFB 1767 (Bernadou) explained that question was to be answered on application of the principles set out below:

[72] For the reasons set out above and having regard to the relevant statutory context, we are of the view that a car 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

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 paragraph 1 above by the business use percentage calculated in accordance with paragraph 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".

The facts in relation to the car allowance are explained below.

One, Mr Afzal was paid the car allowance of $12,000 for each year of his employment with the Respondent. The allowance was paid at the rate of $1,000 per month.

Two, Mr Afzal was never asked by the Respondent to explain or justify how he spent the car allowance.

Three, Mr Afzal did not keep documents recording how he used any car that he owned to the Respondent, such as receipts for petrol.

Four, Mr Afzal did use his car for business purposes. Mr Afzal explained that he used his car for “attending some events, visiting clients or meeting his manager”. Mr Afzal explained that he would use his car for such business purposes “about twice a month" and on a “very infrequent basis”. However, it was not the case that for each such event that Mr Afzal used his car to drive to the event. Mr Afzal explained that there were occasions when he travelled to client events by taxi, and that such taxi fares were paid for by the Respondent, or by public transport.

Five, Mr Afzal explained that it was his choice whether to drive his car or travel by means such as taxi or public transport to such events. Mr Afzal confirmed that the Respondent did not “force” him to drive his car to those events.

Those five facts all point to the entire amount of the car allowance being included in Mr Afzal’s annual rate of earnings in accordance with the principle explained by the Full Bench at [72](a) in Bernadou. That is because those facts suggest that there was no requirement or expectation that Mr Afzal was to use his car for business purposes.

However, clauses 21.1 - 21.3 of the Contract[13] must also be considered. Those clauses concern the car allowance. They are reproduced below:

21. CAR ALLOWANCE/NOVATED LEASE

21.1 In addition to your Base Salary, you will be paid a car allowance on a monthly basis subject to applicable Company policies. You must ensure the availability and maintenance of a vehicle that is suitable for the position held by you.
21.2 It is expected that, if required, you can demonstrate that you have spent this allowance on work related vehicle expenses. Car allowance will only continue to be paid to you where, in the Company's opinion, you require the vehicle to fulfil the normal duties of your position.
21.3 If, at the absolute discretion of the Company, the employee's role ceases to require the use of a vehicle or changes, the Company may cease to pay the employee car allowance.
21.4 You will be entitled to take out a Novated Vehicle Lease, through the Company's chosen fleet leasing partner. However, it is important to recognise that in entering into such a lease agreement, any and all liabilities arising out of this arrangement remain with you as an individual and will continue to remain in force following any cessation of your employment, either at the initiation of you, or at the initiation of the Company. Any cost of the Novated Vehicle Lease (including the cost of the vehicle, maintenance and fuel costs) will be deducted from your Base Salary and Car Allowance on a salary sacrifice basis.
Please contact the Human Resources Department for more information.

The Respondent submitted that based on the facts summarised above that the entire amount of the car allowance should be included in Mr Afzal’s annual rate of earnings in accordance with the principle explained by the Full Bench at [72](a) in Bernadou. With respect to the terms of the Contract, the Respondent placed emphasis on the words “if required” in the first sentence of clause 21.2. The Respondent submitted that consistent with the facts summarised above, Mr Afzal was never required to demonstrate that he spent the car allowance on work related vehicle expenses. Therefore, it was said to follow that there was no requirement or expectation that Mr Afzal used his car for business purposes. Despite me specifically inviting the self-represented Mr Afzal to address me on this point, he made no submissions as to the potential application of the principle explained by the Full Bench at [72](a) in Bernadou in light of the circumstances of this case and those terms of the Contract.

Notwithstanding the facts summarised above, I am unable to find that there no requirement or expectation that Mr Afzal was to use his car for business purposes (my emphasis). I find that there was such a requirement in the second sentence of clause 21.2 of the Contract. That second sentence clearly establishes that the continuation of payment of the car allowance was at the discretion of the Respondent. Moreover, it was open to the Respondent to cease payment of the car allowance if the Respondent formed the view that Mr Afzal no longer required a vehicle to fulfil his normal duties. In my view, that term is sufficient to establish there was a requirement that Mr Afzal was to use his car for business purposes. In making that finding, I reject the Respondent’s submissions, which focused on the first sentence of clause 21.2 of the Contract. I reject the Respondent’s submission that because the contractual rights in the first sentence of clause 21.2 were never exercised that I should find that there was no requirement or expectation that Mr Afzal was to use his car for business purposes. The fact is that Mr Afzal continued to be paid the car allowance throughout his employment with the Respondent. In accordance with the second sentence of clause 21.2 that can only be because the Respondent formed the view that Mr Afzal required his car to fulfil his normal duties. In making this finding, I also note that the facts here are not that Mr Afzal never used his car for business purposes. Rather, that such use was on a very infrequent basis. Accordingly, I will not include the entire amount of the car allowance in Mr Afzal's annual rate of earnings.

As such, I am required to determine and calculate the private benefit derived by Mr Afzal from the car allowance by applying the principle explained by the Full Bench at [72](b) in Bernadou. Prior to the commencement of the hearing, my Associate sent both parties a copy of Bernadou, which I note was also relied upon by the Respondent in its written submissions filed in advance of the hearing. At the commencement of the hearing, I raised with the parties that I may be required to calculate the private benefit of the car allowance in accordance with that principle. After raising that issue, and other relevant issues, with the parties, I adjourned the hearing for approximately 30 minutes to enable the parties to consider that issue and the other issues that I had raised with the parties. In closing submissions at the hearing, I specifically invited the self-represented Mr Afzal to address me as to how I should deal with the car allowance. In response, Mr Afzal conceded that he was above the high income threshold. Mr Afzal did not take up the opportunity to given to him to persuade me that on application of the principle explained by the Full Bench at [72](b) in Bernadou that the private benefit would place him below the high income threshold. Based upon Mr Afzal’s evidence that he used his car on a “very infrequent basis” for business purposes, and Mr Afzal’s concession that he was above the high income threshold, I find that the private benefit derived by Mr Afzal from the car allowance is an amount, albeit unquantifiable, that comfortably exceeds 50% of the car allowance paid to Mr Afzal. That finding means Mr Afzal’s annual rate of earnings is more than the high income threshold.

Conclusion

For the reasons explained above, I find that a modern award did not cover Mr Afzal at time of his dismissal. Moreover, an enterprise agreement did not apply to Mr Afzal in relation to his employment. Finally, that the sum of Mr Afzal’s annual rate of earnings is more than the high income threshold. As such, none of the matters specified in section 382(b) of the FW Act apply. It follows that Mr Afzal is not a person protected from unfair dismissal and I must dismiss Mr Afzal’s unfair dismissal application. Given that finding, there is no utility in determining the OOT Objection / EOT. An order, which dismisses Mr Afzal’s unfair dismissal application, will be issued separately to this decision.

COMMISSIONER

Appearances:

J Afzal, Applicant

L Anaf for the Respondent

Hearing details:

Sydney by Video using Microsoft Teams
2025
16 June.

[1] At [8].

[2] Kestrel Coal Pty Limited v Odette Lennox[2025] FWCFB 114 at [10].

[3] Exhibit A5, Digital Hearing Book (DHB), page 21.

[4] Exhibit A5, DHB, page 21.

[5] Exhibit A5, DHB, page 21.

[6] Exhibit A9.

[7] Annexure GW-3 to Exhibit R1, DHB, pages 96 – 97.

[8] Annexure GW-1 to Exhibit R1, DHB, pages 76 – 93.

[9] Exhibit A9.

[10] Exhibit A8.

[11] Exhibit A5, DHB page 22, and Respondent’s Submissions dated 20 May 2025, DHB page 53.

[12] Exhibit R1, DHB page 77.

[13] Exhibit R1, DHB page 91.

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