Mr Nathan Robinson v A J Gandel

[2013] FWC 4583

[2013] FWC 4583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Nathan Robinson
v
A J Gandel
(U2013/6719)

COMMISSIONER WILSON MELBOURNE, 10 JULY 2013

Jurisdiction - High Income Threshold .

The question to be decided in this matter is whether Nathan Robinson was protected from unfair dismissal at the time of his termination from employment with Mr AJ (John) Gandel, which took effect on 12 February 2013.

[1] The question arises because, it is claimed, Mr Robinson’s total rate of remuneration in the 12 months before his termination of employment exceeded the high income threshold.

[2] Mr Robinson worked for Mr Gandel as House Manager at his private residence. He commenced employment on 27 September 2011, and worked in the position until his employment was terminated in early 2013.

[3] The employer’s evidence is that Mr Robinson was notified of the termination on 17 January 2013 1, however this date is disputed by Mr Robinson in his Outline of Submissions.2 Other than submitting that the date is incorrect, Mr Robinson did not offer an alternative date and the issue was not addressed by either party in the hearing, either in submissions or evidence.

[4] Mr Robinson’s dismissal took effect on 12 February 2013. 3

[5] The dispute in this matter is whether or not the provision of a house for the use of Mr Robinson and his partner should be included in assessment of the high income threshold.

[6] The position of House Manager was advertised on the internet in September 2011 4. The advertisement said;

“House Manager required for Private Residence

We present an exciting and unique opportunity for a highly skilled and energetic professional to join the team of an exclusive residence in Toorak, Victoria.

This outstanding residence owned by one of Australia’s leading business figure (sic) has set levels of presentation and quality standards matched by few others in this country.

Reporting to the owners and working in conjunction with the Project Administrator your duty is the total responsibility for the effective management of the day to day business, future entertaining and operations of the property.

This truly outstanding opportunity is for a strong individual who is seeking a challenging position to display their comprehensive skills in hospitality, hotel management, catering and property management supported by a reliable and established team.

We offer a generous salary and an off-site private residence plus other living expenses. (Families welcomed).” 5

[7] The advertisement did not disclose the identity of the employer and sought a response by email to a Gmail address.

[8] Mr Robinson replied to the advertisement. At the time he was living in Melbourne, however he had previously been working outside of Australia 6 in a hotel management position7. At the time he applied for employment Mr Robinson and his partner were living with his partner’s parents in Boronia.8

[9] After an interview, Dermot Molloy, Project Administrator, employed by The Gandel Group Pty Ltd, negotiated an offer of employment with Mr Robinson and confirmed the offer in writing to him on 15 September 2011. The letter of offer set out the terms of employment in detail 9, which Mr Robinson signed,10 and he started employment with Mr Gandel on 27 September 2011 Included in the letter of offer is a clause dealing with remuneration:

6 Fixed Remuneration Package

6.1 Your fixed remuneration package is specified in schedule B of this agreement (“Fixed Remuneration Package”). The base salary in your fixed remuneration package exceeds all entitlements under any award which does or may apply to your employment. Therefore the excess will be used to offset your entitlements under such an award for minimum wages, allowances, overtime payments, penalty rates and loadings, including annual leave loading. This arrangement does not disadvantage you and at the same time discharges any obligation under the award that AJ Gandel has, to the extent that the excess covers such entitlements.

6.2 Your base salary will be credited directly into your nominated bank account on or about the last Friday of each fortnight, being payment for two weeks in arrears. AJ Gandel will otherwise advise you of how and when the other items within your fixed remuneration package will be paid.

6.3 Also this package includes a 3 bedroom accommodation at [address]. This includes the usage of electricity and gas.” 11 (address omitted by me)

[10] In addition to this clause, the letter of offer included a schedule detailing the actual payments to be made to Mr Robinson, as follows;

“Schedule B

Nathan Robinson

FIXED REMUNERATION PACKAGE

The value of your Fixed Remuneration Package will be $125,000 per annum on a permanent basis. This consists of the following:

• Base salary (per annum) $114,679



• Superannuation (company contributions per annum) $10,321




Accommodation

[address]

This includes usage of the electricity and gas

The maintenance of the lawns and gardens is the responsibility of the employee.” 12 (address omitted by me)

[11] These payments were varied on 1 December 2012 when Mr Gandel wrote to Mr Robinson in the following terms;

“Dear Nathan,

In recognition of your efforts over the past year, I am pleased to advise that your Total rate of remuneration Package will increase to $129,375. This increase is effective from 1 December 2012 and will be included in your pay for the fortnight ending 7 December 2012.

Nathan, I would like to take this opportunity to thank you for your valuable contribution over the last year.

Yours sincerely,” 13

[12] This correspondence uses the terminology “total rate of remuneration package”, whereas the letter of offer of 15 September 2011 uses the terminology “fixed remuneration package”. I infer from the circumstances of payment that the differences in terminology are references to the same elements of earnings.

[13] At the time he commenced employment, Mr Robinson moved into the house in question, which adjoins Mr Gandel’s property (referred to in this decision as “the provided house”). The provided house was described in evidence as having 3 bedrooms and 4 bathrooms and being accessed through a street entrance that was completely separate to that of Mr Gandel’s. 14 It is separated from Mr Gandel’s property with fences, although Mr Gandel’s property is accessed through a monitored security gate at the rear of the provided house.15 Shortly before Mr Robinson commenced employment, the provided house had been renovated at a cost of over $120,000.16 In addition to living in the house without charge, Mr Robinson was not charged for the cost of electricity or gas17 (referred to in this decision as “the utilities charges”).

[14] Evidence presented for Mr Gandel, by Ms Wylie (Financial Manager for The Gandel Group Pty Ltd), and from Mr Molloy, shows the provided house was valued by Mr Andrew Stuart of Hocking Stuart, Estate Agents, in 2006, wherein it was said;

“Since my previous inspection of the above property, some minor improvements have taken place. However the owner still requires reasonable access to property for storage purposes.

It is therefore our considered opinion that the property’s fair market return would be approximately $250.00 per week” 18

[15] Ms Wylie’s evidence shows further that the amount of $250 per week was indexed periodically:

“This amount is indexed each year in the calculation of the total taxable value of the property for the purposes of FBT.” 19

[16] Ms Wylie’s evidence included two schedules of Fringe Benefits Tax calculations, which shows she calculated the taxable value of the house during Mr Robinson’s employment as follows;

• $15,727 for the 2010/11 Fringe Benefits Tax (FBT) year (being the period of 27 September 2011 to 31 March 2012) 20; and



• $16,388 for the 2011/12 FBT year (being the period of 1 April 2012 to 12 February 2013). 21

[17] These amounts are for the provided house and do not include amounts for the utilities charges. 22

[18] At the hearing on 31 May 2013 the Respondent’s representative, Mr Ruskin, submitted that Fringe Benefits Tax calculations in Ms Wylie’s evidence were the amounts reported by Mr Gandel to the Australian Taxation Office as the Reportable Fringe Benefits amounts paid by him on Mr Robinson’s behalf in the respective FBT year. 23

[19] Ms Wylie’s evidence also shows the costs of the utilities charges paid by Mr Gandel for the provided house in the period in which Mr Robinson was employed were $3361.92 for electricity charges and $3007.34 for gas charges. 24 The amount of these charges for the periods to which they relate were not contested by Mr Robinson.25

[20] Mr Gandel’s outline of submissions stated that in the 12 months prior to Mr Robinson’s termination of employment, the taxable value of the benefit associated with the provided house was $16,959.05 26 and that he paid Mr Robinson’s electricity and gas charges totalling $5778.1627. These amounts are also uncontested by Mr Robinson.28

[21] Mr Gandel says that the provision of the house and the payment of the utilities charges were benefits 29 that should be taken into account in determining Mr Robinson’s earnings in the assessment of the high income threshold.

[22] Mr Robinson says the provision of the house was not a benefit since it was more akin to a “tool of trade” 30, or in the alternative if it was a benefit, the circumstances of Mr Robinson’s employment means that only a proportionate amount of the value of the provided house and none of the utilities charges31 should be taken into account in determining Mr Robinson’s earnings in the assessment of the high income threshold.

Legislation

[23] Section 382 of the Act provides 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 $123,300 from 1 July 2012

[24] The high income threshold was indexed to $123,300 from 1 July 2012 pursuant to Regulation 2.13 of the Fair Work Regulations 2009.

[25] Assessment of the high income threshold requires application of two considerations. Firstly, consideration needs to be given to the person’s annual rate of earnings, which requires an examination of several factors, including those set out in s.332, and, because of a reference in that section, potentially factors included in the regulations. Secondly, and separately, consideration needs to be made about whether there are any amounts to be added to the person’s annual rate of earnings because of factors included in the regulations. The sum of these two considerations is what is compared against the high income threshold.

[26] Section 12 of the Act is The Dictionary, which defines the term “earnings” in the following way:

earnings: see subsections 332(1) and (2).

[27] In turn section 332 provides;

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.

[28] There are potentially three aspects of the Regulations relevant to these considerations. Firstly, regulations relevant to the consideration of s.332(1)(d) (amounts or benefits to be included in an employee’s “earnings”); secondly regulations relevant to the consideration of s.332(2)(d) (amounts not to be included in an employee’s “earnings”); and thirdly regulations which are relevant to the consideration of s.382(b)(iii) (which might prescribe amounts to be added to the annual rate of earnings).

[29] In relation to the first two aspects, the parties did not draw my attention to regulations made explicitly for the purposes of either s.332(1)(d) or s.332(2)(d), and there do not appear to be any.

[30] The third aspect (relevant to the consideration of s.382(b)(iii)) is dealt with in the regulations, through Regulation 3.05 of the Fair Work Regulations 2009 which deals with amounts to be added to the annual rate of earnings in considering the high income threshold.

[31] Regulation 3.05 provides;

3.05 When a person is protected from unfair dismissal — high income threshold

(1) For subparagraph 382 (b) (iii) of the Act, this regulation explains how to work out amounts for the purpose of assessing whether the high income threshold applies in relation to the dismissal of a person at a particular time.

Note Under section 382 of the Act, a person is protected from unfair dismissal if specified circumstances apply. One of the circumstances is that 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.

Piece rates

(2) Sub-regulations (3), (4) and (5) apply if part or all of the person’s income at the time of the dismissal is paid as piece rates that are:

(a) set by reference to a quantifiable output or task; and

(b) not paid as a rate set by reference to a period of time worked.

(3) If the person was continuously employed by the employer and was not on leave without full pay at any time during the period of 12 months immediately before the dismissal, the total amount of piece rates paid or payable to the person in respect of the period of 12 months ending immediately before the dismissal is an amount for subparagraph 382 (b) (iii) of the Act.

(4) If the person was continuously employed by the employer and was on leave without full pay at any time during the period of 12 months immediately before the dismissal, the total of:

(a) for the days during that period that the employee was not on leave without full pay — the actual piece rates received by the employee; and

(b) for the days that the employee was on leave without full pay — an amount worked out using the formula:

Piece rates mentioned in paragraph (a) x Days on leave without full pay

Days not on leave without full pay

is an amount for subparagraph 382 (b) (iii) of the Act.

(5) If the person was continuously employed by the employer for a period of less than 12 months immediately before the dismissal, the total amount of piece rates worked out using the formula:

Piece rates x 365

Days employed

is an amount for subparagraph 382 (b) (iii) of the Act.

Benefits other than payment of money

(6) If:

(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and

(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332 (3) of the Act; and

(c) the FWC is satisfied, having regard to the circumstances, that:

(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and

(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and

(iii) the FWC can estimate a real or notional money value of the benefit;

the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382 (b) (iii) of the Act.

[32] Sub-regulations 3.05 (3), (4) and (5) are not relevant to the consideration of this matter since neither part or all of Mr Robinson’s income was paid as piece rates. Sub-regulation (6) is relevant since it deals with benefits other than the payment of money.

Consideration

[33] Apart from the substantive issue of whether Mr Robinson’s total rate of remuneration exceeded the high income threshold, it is also necessary to consider whether his circumstances fit the other criteria specified in section 382, in order to consider whether Mr Robinson is a person protected from unfair dismissal for a reason other than whether he is within the high income threshold.

Was Mr Robinson an employee who has completed a period of employment with Mr Gandel of at least the minimum employment period?

[34] The threshold issue in section 382 is whether Mr Robinson is an employee who has completed a period of employment with Mr Gandel of at least the minimum employment period. The evidence is that Mr Robinson, was employed by Mr Gandel on 27 September 2011, and so therefore he had completed a period of employment of at least the minimum employment period.

Did a modern award cover his employment; or did an enterprise agreement apply in relation to the employment?

[35] Since Mr Robinson was employed for at least the minimum employment period, consideration needs to be given to whether or not a modern award or an enterprise agreement applied to his employment. There is no evidence to suggest that Mr Robinson’s employment was covered either by a modern award or by an enterprise agreement; and to the contrary the evidence, especially of Mr Gandel’s letter of offer to Mr Robinson, is that neither a modern award nor an enterprise agreement applied to his employment. 32

[36] As a result, Mr Robinson is not a person who is protected from unfair dismissal by reason of the application of subsection 382 (b) (i) or (ii).

High income threshold

[37] If Mr Robinson’s total rate of remuneration exceeds the high income threshold of $123,300, he will not be a person protected from unfair dismissal.

[38] In accordance with ss382(b)(iii) determination of Mr Robinson’s total remuneration requires consideration firstly of his “annual rate of earnings” and secondly, whether there are “other amounts (if any) worked out in relation to [Mr Robinson] in accordance with the regulations”

Annual rate of earnings

[39] Mr Gandel and Mr Robinson agree that Mr Robinson’s wages from the base salary he received in the 12 months prior to the termination of employment were $115,484.01. 33

[40] In addition to wages from the base salary, the definition of “earnings” as set out in section 332 requires there be added to that amount;

• “amounts applied or dealt with in any way on the employee’s behalf or as the employee directs;”  34



• “the agreed money value of non-monetary benefits”, 35 with the term “non-monetary benefits” being the subject of definition in s.332(3); and

• amounts or benefits prescribed by the regulations 36 (noting that there do not appear to be regulations made for this purpose).

[41] Subsection 332 (1) (b) invites a consideration of whether there were any amounts applied or dealt with in any way on Mr Robinson’s behalf or as he directed, and if so, those amounts are included in his earnings. For example, this could be a salary packaging arrangement in which a nominated amount could be applied to the purchase, running and maintenance of a motor vehicle for private use.

[42] Cloghan C considered the operation of this sub-section in Batley v Cocos Islands Cooperative Society Ltd  37;

“[32] To better understand the construction of s.332(1)(b), I have divided the sub-section into two parts; the first part being:

“Other amounts applied or dealt with in any way on the employee’s behalf”.

Firstly, the word “other” is indicative of an amount different to what has already been mentioned – that is, the employee’s salary or wages in s.332(1)(a). Secondly, the amount “applied or dealt with” has a context, and that context is that it must be “on the employee’s behalf”; in other words, the amount is not any other amount, but an amount which is expended on the employee’s behalf and part of their “cashable” salary or wages. By a process of elimination, an amount which is not applied or dealt with on behalf of the employee and within their “cashable” salaries or wages, must be excluded from the definition of earnings.”

[43] At the hearing on 31 May 2013 the Applicant’s representative, Mr Rossi, submitted that subsection 332 (1) (b) had no application to his client. 38 I agree there is no evidence or material before me which would suggest the contrary.

[44] Subsection 332 (1) (c) invites a consideration of whether there is an “agreed money value of non-monetary benefits”, with “non-monetary benefits” further defined by ss.332 (3). Following from that sub-section, the test for inclusion of a non-monetary benefit in “earnings” is threefold – the benefits must be other than an entitlement to a payment of money; the employee must be entitled to the benefits in return for the performance of work; and a reasonable money value for the benefits needs to have been agreed by the employee and the employer. Not to be included in this respect as a non-monetary benefit are benefits prescribed by the regulations (noting again there do not appear to be have been regulations made for this purpose).

[45] There is no evidence before me of benefits which meet all of the tests of the subsection. While it could be said that either or both the provided house or the payment of utilities charges for the provided house were benefits and met either the first or second of those elements, the third element is not met, since there is no evidence of a reasonable money value having been agreed between the parties.

[46] Accordingly, I find that there are no amounts which need to be included within “earnings” because they are non-monetary benefits in the way envisaged in subsection 332 (1) (c).

[47] In accordance with s.332(2), the determination of “earnings” also requires that certain matters not be included, and these are;

• “Payments the amount of which cannot be determined in advance” 39;

Reimbursements (noting that there is no evidence of such amounts that need to be disregarded);

Certain superannuation contributions (noting that the amounts of wages provided to me by the parties do not include amounts attributable to superannuation); and

• Amounts prescribed by the regulations, (noting again there do not appear to have been regulations made this purpose).

[48] It was put to me during the hearing by Mr Rossi, that the payment of the utilities charges for the provided house were amounts that could not be determined in advance. The essential argument was that the utilities charges for the provided house varied according to each billing cycle and that they could not be reasonably determined in advance.

[49] It was Mr Rossi’s submission that the purpose of section 332 (2) (a) is to exclude anything that can’t be determined 40. He pointed to the evidence in Ms Wylie’s statutory declaration from appendix 7 which detailed the price of the periodic electricity and gas bills and noted how they varied.

[50] In response, Mr Ruskin pointed to the Full Bench decision in Watiyawanu Community Government Council v Alan Jones, 41 indicating that the cost of electricity supply had been included in calculation of the employee’s rate of remuneration, even though the cost of electricity in that case was not just one figure, but instead were charges over a period of time.42

[51] Watiyawanu concerned a case of an employee living with his wife in remote accommodation owned by his employer, for which no charge was made to the employee by the employer either for the house or for electricity. 43 The Commissioner at first instance determined that only half the cost of the electricity supply should be included in the employee’s rate of remuneration44 On appeal, the Full Bench held that the full amount of the electricity charges should be included in the employee’s rate of remuneration;

[31] In our respectful view, Eames C erred in determining that the amount of $958.22 for which the Council contended should be halved. The amount paid by the Council for electricity was $958.22. It was paid on behalf of Mr Jones in his capacity as an employee of the Council. The material before Eames C indicates that the Council was required to pay the cost of the electricity used in the house without regard to the number of occupants or the amount of electricity actually used by any occupant (subject perhaps to not being required to pay an unreasonable amount). In particular, there is nothing to suggest that the Council was only required to pay for the electricity used by Mr Jones himself. To use the words in the passage we have quoted from Bell, the “assessed annual rate of the cash payments made or liable to be made by the employer to or on behalf of the employee ... identifiable as the reward or recompense for the work or service” in respect of electricity was, in our opinion, the full amount paid by the Council; that is, $958.22. 45

[52] In the course of their decision in Watiyawanu, the Full Commission adopted the reasoning of Rofin’s Case 46 and that in Bell v McArthur River Mining which held relevantly that;

“We therefore construe s 170CC(3)(b) as meaning that the rate of remuneration applicable to the employee is an assessed annual rate of the cash payments made or liable to be made by the employer to or on behalf of the employee, or benefits in kind for the private use of the employee, exclusive of payment made as reimbursement, and identifiable as the reward or recompense for the work or service in the period of employment immediately prior to the termination of the employment.” 47

[53] Ms Wylie’s evidence at appendix 7 of her statutory declaration indicates that the 5 electricity bills varied from $433.49 to $1052.66 for each quarterly account and that each of the 7 gas bills varied from $151.32 to $878.63 for each bill on a two-monthly cycle.

[54] I am satisfied the utilities charges are not to be included in calculating Mr Robinson’s “annual rate of earnings”.

[55] The argument developed by Mr Rossi in this respect is relevant to the consideration within subsection 332 (2) (a). The particular subsection essentially requires me to disregard from the calculation of “earnings” amounts which cannot be determined in advance, but which might otherwise be amounts considered for inclusion within an employee’s “earnings” for the purposes of subsection 332.

[56] The construction of s.332 is to firstly set out in subsection (1) four things which should be included in the calculation of earnings; and secondly, to say through subsection (2) that four things are excluded from the calculation, when they might otherwise be included. Subsections (3) and (4) define two things that are referred to respectively within subsections (1) and (2).

[57] On this construction, the utilities charges do not fall within any of the things included within “earnings” by virtue of subsection 332 (1). For the reasons set out elsewhere, they are not wages; nor are they “salary sacrifice” amounts captured by ss.332(1)(b); and they are not amounts or benefits prescribed by the regulations. The remaining possibility (for this part of the analysis) is that the utilities charges were “non-monetary benefits”.

[58] In this regard, while it could be said that the payment of utilities charges was a benefit and met two of the tests of the definition of a non-monetary benefit in sub-section 332(3), the third element is not met, since there is no evidence of a reasonable money value having been agreed between the parties.

[59] As a result, I find the utilities charges are not “earnings” as that term is used in s382 and defined in s332. In doing so, I note that leaves the possibility that the utilities charges are amounts worked out in relation to the person in accordance with the regulations and I deal with that possibility later in this decision.

[60] A result of the foregoing analysis, I find that Mr Robinson’s “annual rate of earnings” for the purposes of subsection 382 (b) (iii) was $115,484.01.

Amounts (if any) worked out in relation to the person in accordance with the regulations

[61] I turn now to the consideration of the second of the elements needed for the sum contained within subsection 382 (b) (iii), namely whether there were “other amounts (if any) worked out in relation to the person in accordance with the regulations”.

[62] I have identified above that the relevant regulation applying to the circumstances is R 3.05 (6). The application of that Regulation and determination of the amounts flowing from it requires consideration of three questions;

• firstly, were the provided house and payment of utilities charges “benefits” Mr Robinson was entitled to receive in accordance with an agreement, or were they something else?



• secondly, were they “non-monetary benefits” within the meaning of section 332 (3)?



• thirdly, if they were not non-monetary benefits, am I able to be satisfied of the elements within R 3.05 (6) (c)? Those elements go to whether I should consider the benefit for the purpose of assessing the high income threshold; that a reasonable money value has not been agreed; and that I can estimate a real or notional money value of the benefit.

Whether provision of the house and payment of utilities were “benefits”?

[63] Mr Robinson contended that living in the provided house was a necessary element of his employment and that any benefit was purely incidental. 48 In this regard, his evidence is that the job was advertised as coming with a house;

“Can you please describe the process of the negotiation when you were applying for the job?---Sure. I applied for the job. I was called up to meet Mr Molloy. He went through the expectations of the job and the role, stated a salary and that it came with a house, so that you were close to the Gandels and could respond to alarms and the needs of the Gandels. There was no negotiation on the house, he didn’t inform me that it was optional and I didn’t ask the question because the ad actually stated that it came with a house. The only negotiation was on salary. I gave my expectations. I assume after a discussion with Mr Gandel and I’d met them, he then came back with an offer of a salary including in a remuneration package of a house.” 49

[64] He characterised his job as requiring close proximity to the Gandel’s;

“MR ROSSI: Mr Ruskin raised issues of some staff being on the premises at the Gandel residence and whether they could deal with issues that arose. From a practical sense, were they called upon if those issues arose? Or were you still called?---It really depends what the issue was. If the Gandels wanted a cup of tea, for example, then the people in the house were requested to do it. If the Gandels needed to go to a meeting or go to church or to the synagogue or go into town for a museum visit or something like that and the driver was unavailable, then that would be myself that would be called in to do that.

Could that be at any particular hour?---That could be at any particular time. There were times where I’d leave at 5.30, sitting at home and get a call at 6.30, Mr Gandel has to be somewhere at 7.00 and he needs you to drive him. So I’d have to suit up again and get back to work.” 50

[65] Mr Robinson gave examples of why he needed to live as close as the provided house;

“How often would you be required to travel between the houses?---Obviously, in the morning going to work and obviously when I left. Any other time was an on-call basis. If something as simple as the house had run out of milk or Mrs Gandel had decided she wanted to host a lunch on a Sunday afternoon or an afternoon tea, the staff would call me and I would have to go and - if she wanted scones and we didn’t have something, I’d have to go and get it. That was the purpose of living so close, because anything could come up. They - being the sort of people that they were , they could host an afternoon tea and the drop of a hat. There were also the security measures. If any alarms went off - two different types of alarms in the house that I was required to respond to.” 51

[66] Mr Rossi, also put to Mr Molloy that Mr Gandel preferred the provided house, and other properties he owned nearby to be occupied by staff. Mr Molloy’s evidence was that:

“But really it’s his preference for someone who’s his staff to live in that house. That’s Mr Gandel’s preference?---The house is there, sir, as an enticement for the person, the applicant. We advertised around Australia and around the world for the right person and it was an enticement to bring to - a strong package that would entice them to work for us as well.

Yet the question is, really it’s Mr Gandel’s preference that someone who works for him lives in that house with the gate?---Sir, what I think it’s an advantage for the employee as well, because you don’t need transport and you are three minutes away from your family, to be with your family as they grow up. That’s what I saw as an advantage and as Nathan had a house on the Gold Coast, he rented that out and took that income. So he had, it was a benefit to him.” 52

[67] In contrast to Mr Robinson, Mr Gandel’s case is two-fold – that other staff, actually living in the same house as Mr Gandel could attend to the family’s immediate needs, and consequently Mr Robinson did not need to be within close proximity of Mr Gandel; and secondly that the provided house was offered for the purposes of attracting a suitable candidate for employment, and that Mr Robinson came to be living in the house because it suited his circumstances at the time of employment.

[68] In relation to the first arm of this argument (there not being a need for proximity), Mr Molloy’s evidence was that the staff living on Mr Gandel’s property could attend to the family’s immediate needs;

“As I said previously, these are roles that we pay very well and we believe that the person who takes on the role as house manager takes full ownership and responsibility of the role. So I would expect in any position like this, as in hotel manager, they would drop in, they would make a call, they would come in and see the staff, saying “How is it going?”. A bit of a status, if it was for five minutes or ten minutes, and then take off. If they were going away for the weekend, you’d just, on the day before they’d say, “I’m heading away for the weekend, I’m contactable by mobile phone”. Most issues were always could be dealt with by a phone call if need be. The applicant after Mr Robinson, he would phone in on Saturday and Sunday, and basically talk to Mr Gandel, “Is there anything you need of me or can I help you with anything?” and that was it. So he actually didn’t come in on Saturday and Sunday. But in that position description, if we were having a function or a banquet or a dinner or a lunch, then the manager would be expected to come in and participate in running that particular function, 100 per cent. I don’t know how many times that Mr Robinson came in but there weren’t that many functions during his position at the house.” 53

[69] Evidence was given about the duties and hours of Mr Robinson, including through the position description issued to him. The position description sets out certain hours of work, namely;

“Monday - Thursday: 7.45am-12.00, 12.30-5.30pm

Friday: 7.45am-12.00pm, 12.30pm-4.00pm, and 6.30pm-9.30pm

Saturday and Sunday as required (A minimum of 1 visit per day)

Assisting where needed when staff are on leave or as required to for fill (sic) the requirements of the house.” 54

[70] Mr Robinson agreed these were his hours of work 55 and that his remuneration took into account the fact that his job may require him to work hours in excess of 38 hours.56

[71] Mr Molloy also gave evidence that the person who was employed after Mr Robinson lived elsewhere 57, about 30 minutes away58, albeit that he was employed only for two weeks before leaving,59 and that the person employed before Mr Robinson lived in Brighton.60

[72] In relation to the second arm of this argument (attraction), Mr Molloy’s evidence was that the following was said to Mr Robinson about the provided house at the time they discussed employment;

“What was said about the off site private residence plus other living expenses?

---Okay. So I explained to him that we have a house that’s a three bedroom, four bathroom accommodation that has separate - access off another street to the property. So his wife of family or visitors could stay, they could go, they could entertain. In that package - I just want to note that at the time, which was prior to him moving in, we had spent 120,000 on renovating it so it was looking very, very appealing. In the package was included heating, gas, electricity, water, house insurance and any maintenance that the house required. So his wife, I believe at the time was working, so she could come and go, and it was a very enticing part of the package (indistinct) he, as well, owned a house on the Gold Coast, so he did not have accommodation, I believe, at the time in Melbourne. So it was an enticing point to the whole package deal at the time.” 61

[73] Mr Robinson agreed the prospect of a provided house was convenient and appealing to him at the time of employment;

“So it was quite convenient to move out of your parents-in-law house and take a house with your new family - because you had family coming, didn’t you? Your wife, your partner was pregnant at the time that you applied for the job?---Correct, yes.

The idea of moving into a house on your own without your parents-in-law when the new baby came must have been attractive, mustn’t it?---Yes, definitely appealing, definitely appealing.” 62

[74] Mr Molloy’s evidence is that the subject of whether Mr Robinson was required by Mr Gandel to live in the provided house or not, was not discussed by them during the employment negotiations;

“You say that in the discussion or negotiations about salary or discussions about the job, the issue of the house as such - not living in the house or living in the house - was never raised?---No. It was never raised and

Why was it never raised, do you think?---Because I, at the interview - I’ve got all my notes from that particular day at the interview - because he didn’t have accommodation in Melbourne basically we saw - he saw and I saw - it as being a really positive situation that he could actually take up this accommodation without having to live with his in-laws or having to rent a property. It was never raised. We saw it as a total benefit that he would enjoy.

You say, “We saw it as a total benefit” - do you mean you did or he did or both?

---He and I at the interview.” 63

[75] The case of Rofin Australia Pty Ltd v Newton, a decision on appeal in the Australian Industrial Relations Commission, develops the issue of “benefit” according to the statutory framework then prevailing regarding the maximum remuneration an employee could earn was above a “specified rate” in order to make an unfair dismissal claim under the Workplace Relations Act 1996 (Cth).

[76] The issues before the Full Bench were characterised in the following way;

“It was common ground in the hearing before the Commissioner that, for the purposes of s 170CC(3), the employee’s rate of remuneration included the annual salary of $52,000.00 and superannuation of $3,200.00, making a total of $55,120.00. What was in dispute was whether there were any non-pecuniary benefits that should have been taken into account and, if so, whether the sum total of those benefits amounted, in dollar terms, to more than $8,880.00 per annum.

The employer contended that non-pecuniary benefits arising out of the provision of the motor vehicle should be taken into account. These benefits consisted of $3,405.00 for fringe benefits tax, $7,738.00 for depreciation, $2,748.00 for finance charges, $750.00 for insurance charges, $440.00 for registration, $47.00 for RACV membership and $3,206.00 for fuel and repairs. The employer estimated that the employee used the vehicle for 95 per cent of the time for personal reasons. On this basis, it contended that the employee’s rate of remuneration exceeded the specified rate.” 64

[77] Rofin’s Case developed two propositions. The first of these was in relation to genuine salary sacrifice arrangements, giving rise to the proposition that;

“Generally, where an amount is paid by an employer other than to an employee and other than on behalf of or at the direction of the employee, such an amount would not fall within the ordinary meaning of the word ‘‘remuneration’’.  65

[78] In the case, the Full Bench proceeded to hold that the particular facts were not of a salary sacrifice arrangement and that the Fringe Benefits Tax paid was not to be included in consideration of the employee’s rate of remuneration.

[79] In Mr Robinson’s case, there is not a suggestion that any part of his arrangements were of a salary sacrifice nature. 66

[80] The second of the propositions in Rofin’s Case was in relation to whether any part of the benefit received by the employee amounted to a private benefit. If it was, the private benefit would also be included in consideration of the “specified rate”. In the case, the Full Bench considered the means by which an assessment could be made of the private value of the benefit, in this case the provision of a motor vehicle which included some element of private use. The employer contended the vehicle was used 95% of the time for personal reasons; whereas the employee submitted that the personal use of vehicle accounted for only 20 to 25% of the time. The Full Bench decided the matter in this way:

“In dealing with the question of the motor vehicle, Commissioner Deegan adopted the principles enunciated by Senior Deputy President Watson in Condon v G James Extrusion Company (1997) 74 IR 283, namely that —

1. the private benefit derived by an employee through the provision to such an employee of a fully maintained motor vehicle will constitute remuneration for the purpose of s 170CC(3) and (4), and

2. for the purposes of determining remuneration, the focus should be upon the private benefit derived by the employee and the provision of a motor vehicle for business purposes would not form part of the remuneration.

These principles appear to reflect a distinction that has been made, in our view quite properly, between the provision of a motor vehicle as part of a salary package and the provision of a motor vehicle as a piece of equipment supplied by the employer to enable the employee to perform the job (Magagna v FAI Workers’ Compensation Vic Pty Ltd (unreported, Industrial Relations Court of Australia, Millane JR, 21 September 1995, Decision No 628/95); see also Witkowski v API Securities Pty Ltd (unreported, AIRC, (Print P2850)). Where a motor vehicle is provided to an employee in lieu of salary that might otherwise have been paid, it is appropriate that the private benefit derived by the employee from the provision of the motor vehicle be counted as part of the employee’s remuneration. Where, however, the vehicle is provided for business purposes and the employee’s entitlement to private use is purely incidental, the provision of the motor vehicle should be treated no differently to the provision by the employer of any other tool or piece of equipment essential to the performance of the job.” 67 (my emphasis)

[81] It was submitted to me by Mr Robinson that, for reason of the need for him to be in close proximity to Mr Gandel and his family, the provided house was “essentially a tool of the trade” 68, or that the “house was there was the purpose of the job”69.

[82] The criterion being examined at this stage is that contained within R 3.05(6)(a), namely whether Mr Robinson “is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer”. After considering the evidence and the other material before me, I find that he was so entitled. Notwithstanding Mr Rossi’s submission, I find that the opportunity to live in the provided house was a benefit to Mr Robinson and it was provided in accordance with an agreement, as evidenced by the letter of offer to him from Mr Gandel, which he signed. 70 This first criterion of the sub-regulation is therefore met.

[83] The second criterion within the Regulation, in R 3.05(6)(b), requires a consideration of whether the benefit “is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332 (3) of the Act”.

[84] The accommodation provided to Mr Robinson did not involve a payment of money and so the first element of the criterion is not met. Instead, the evidence indicates Mr Robinson was not charged for the premises and neither did he receive a nominated amount of his salary to compensate for the rent the employer would otherwise charge.

[85] As discussed previously, I do not find the benefit to be a “non-monetary benefit” in the way it is defined in ss 332(3). It follows that the benefit was not a non-monetary benefit for the purposes of the Regulation. Since the payment was neither a payment of money nor a non-monetary benefit, I find the second criterion to be met.

[86] The third criterion of the regulation, set out in R 3.06(6)(c), requires me to be satisfied, having regard to the circumstances, of three independent factors;

[87] Firstly, I need to be satisfied, having regard to the circumstances, that I “should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal”. 71 In this regard, I take into account the circumstances of all the evidence and material put to me and in particular;

• that the advertisement for employment from which Mr Robinson came to be employed by Mr Gandel openly indicated that “an off-site private residence plus other living expenses” were offered;



• there is no evidence of a discussion having taken place between Mr Robinson and Mr Molloy (on behalf Mr Gandel) to the effect that Mr Robinson did not wish to live in the premises and that he instead desired to live elsewhere;



• Schedule B of the letter of offer, which is headed “Fixed Remuneration Package” explicitly refers to the provided house;



• there is evidence to the effect that the immediate needs of the Gandel’s could be met by staff other than Mr Robinson if the need arose, or that if Mr Robinson had to personally attend, there was sufficient notice of events to allow him to travel to Mr Gandel’s house from another place; and



• the overall effect of all of the evidence is that there was not a need for close proximity of Mr Robinson to Mr Gandel and that the provided house was an attraction to employment.

[88] Secondly, I need to be satisfied, having regard to the circumstances, that a reasonable money value of the benefit has not been agreed by the parties. In this regard, I take into account there is no evidence which indicates a reasonable money value of the benefit was agreed at any time by the parties.

[89] Thirdly, I need to be satisfied, having regard to the circumstances, that I can estimate a real or notional money value of the benefit. The accommodation provided by Mr Gandel to Mr Robinson comprises the benefit he received, and the accommodation is in two parts, each potentially subject to separate assessment. The first part of the benefit is the provided house and its exclusive use by Mr Robinson, and the second part is the payment of the utilities charges.

[90] In relation to the question of whether a real or notional money value can be assessed for the provided house, I take into account the circumstances of all the evidence and material put to me, in particular;

• the evidence of Ms Wylie and Mr Molloy which shows the provided house was valued on behalf of Mr Gandel in 2006, which resulted in the nomination by the valuer of an approximate weekly fair market return;



• the evidence of Ms Wylie which indicates that the indicated valuation was periodically indexed by her; together with her evidence which indicates that these valuations were used by her for the purposes of making Fringe Benefits Tax calculations; and



• the submissions of Mr Ruskin to the effect that the calculations by Ms Wylie were subsequently submitted by his client to the Australian Taxation Office on behalf of Mr Robinson.

[91] As a result of those circumstances, I am satisfied I can estimate a real or notional value of the benefit for the provided house.

[92] In relation to the question of whether a real or notional money value can be assessed for the payment of the utilities charges, Ms Wylie’s evidence is that a total of $6369.26 was paid for the provision of gas and electricity 72 and it was Mr Gandel’s submission that in the 12 month period immediately preceding the date of termination he paid electricity and gas charges for Mr Robinson totalling $5778.1673.

[93] While these amounts were not contradicted by Mr Robinson, Mr Rossi argued that the payments in respect of gas and electricity did not meet the test required for inclusion of those amounts in the assessment of “earnings” for the purposes of the high income threshold since they were “payments the amount of which cannot be determined in advance”. 74 While this is essentially an argument that the relevant amounts not be included in my calculation of Mr Robinson’s “earnings” for the purposes of the assessment of his “annual rate of earnings” as set out in subsection 382 (b) (iii), it is possible to apply the same logic in respect of the assessment needing to be carried out under sub-regulation 3.05 (c) (iii). Potentially it could be said that if the payments could not be determined in advance “a real or notional money value” could not be determined either.

[94] It was Mr Rossi’s submission that the gas and electricity bills fluctuated in a way that meant the costs could not be determined in advance and that the purpose of section 332 (2)(a) is to exclude anything that can’t be determined 75. He pointed to the evidence in Ms Wylie’s statutory declaration from appendix 7 which detailed the price of the periodic electricity and gas bills. Ms Wylie’s evidence at appendix 7 of her statutory declaration indicates that the 5 electricity bills varied from $433.49 to $1052.66 for each quarterly account and that each of the 7 gas bills varied from $151.32 to $878.63 for each bill on a two-monthly cycle. In response, Mr Ruskin pointed to the Watiyawanu Case indicating that the cost of electricity supply in that case had been included in the consideration of remuneration, even though the cost of electricity was not just one figure, but instead were charges over a period of time.76

[95] In this case, I need to be satisfied that I can estimate a real or notional value of the benefit for the utilities charges, and in forming this view, I take into account into account the circumstances of all the evidence and material put to me and in particular;

• that the advertisement for employment from which Mr Robinson came to be employed by Mr Gandel openly indicated that “an off-site private residence plus other living expenses” (my emphasis) were offered;



• schedule B of the letter of offer governing Mr Robinson’s employment indicates with reference to accommodation that “[t]his includes usage of electricity and gas”;



• that I have found the opportunity to live in the provided house was a benefit to Mr Robinson (albeit one that was convenient to Mr Gandel as well) and it was provided in accordance with an agreement.

[96] While it is plain that the utilities charges varied from account to account, and that no two accounts were for the same amount, it is unlikely to be the case there would not be billing cycle without a charge for either electricity or gas. As a result, I do not prefer the argument in relation to the utilities charges that since the payments could not be determined in advance “a real or notional money value” could not be determined either.

[97] As a result of the circumstances I have referred to, I am satisfied I can estimate a real or notional value of the benefit of the payment of the utilities charges. I note that the sub-regulation allows me to estimate either a real or notional amount.

[98] In considering how to estimate a real or notional amount, it is noted that neither the Act, nor the Regulations define the term “estimate”. In such case, it is appropriate to apply a construction that is read in the context of the statute as a whole; adhering to the grammatical and ordinary sense of the words; and which may require consideration of the context including the general purpose and policy of the provisions. 77 The Macquarie Dictionary defines the word “estimate”, when used as a verb in this way;

“Estimate - verb (t) 1. to form an approximate judgement or opinion regarding the value, amount, size, weight, etc., of; calculate approximately. 2. to form an opinion of; judge. - verb (i) 3. to submit approximate figures, as of the cost of work to be done. “ 78

[99] The use of the word “estimate” in the sub-regulation plainly envisages the approximation of a value, when a precise, known, recurring amount is not available. In the event I was to be restricted only to known, never varying, or frequently recurring amounts the sub-regulation would not be drafted in the manner it is. The context of the sub-regulation is for the Commission to estimate amounts where they are not agreed, or they do vary.

[100] As a result of this analysis of the criteria within R 3.06(6), I am satisfied Mr Robinson received a benefit other than payment of money, the real or notional value of which is an amount for inclusion in the sum I am required to make arising from subparagraph 382(b)(iii) of the Act. I am satisfied for the reasons outlined that the real or notional value of both the provision of a house for Mr Robinson’s use and the payment of the utilities charges are amounts for such consideration.

Potential value

[101] The question turns then to the value to be estimated for each part of the benefit.

[102] In relation to the provision of a house for Mr Robinson’s use, the evidence provided by Mr Molloy and Ms Wylie is that Mr Gandel calculated a value for the provision of the house that was reported to the Australian Taxation Office each year for Fringe Benefits Tax purposes. Mr Gandel’s submissions, which were not contradicted by Mr Robinson, are that in the 12 month period immediately preceding the date of termination of the Applicant’s employment, the taxable value of the housing benefit was $16,959.05. 79

[103] It is Mr Gandel’s submissions that the whole of the taxable value of the housing should be used to assess whether or not Mr Robinson’s total rate of remuneration is above below the high income threshold.

[104] Mr Robinson’s primary contention was instead that none of the taxable value should be included (for reasons which are discussed above).

[105] In the alternative, Mr Rossi submitted on behalf Mr Robinson, that if the value is to be ascribed to the provision of the house, it might be in the order of 25%. Mr Rossi put the argument in this way;

“Obviously we say it was nothing as a starting point but in terms of the benefit for Mr Robinson, he was required to be on-call or, as he says, basically 24/7. He was required to at least, and that’s in his schedule A position description, call in at least once every weekend (indistinct) one visit per day. Mr Molloy said that it didn’t happen all the time but it’s not really the point. The point is whether there was an expectation that he would be available. If he would be available, that house was not for his private use. He wasn’t achieving full private enjoyment. Therefore, we say that given that he was on-call basically all the time and he worked weekends, apart from the odd weekend, he didn’t have that full value so we would put a notional figure of perhaps 25 per cent or less. Because the primary purpose of the house was to enable him to do the job, not for his private benefit.” 80

“... It’s going to, in a sense, be an arbitrary decision for you based on the evidence. How often was he off-duty or on-call, essentially. We say it’s certainly no more than 25 per cent and, as chance would have it, if it’s 25 per cent or less, the apportioned value will mean that Mr Robinson is under the high-income threshold still. So we would point to 25 per cent on the basis that he was on-call. It was being used for a business purpose almost all the time. So 25 per cent or less is the figure, we say, and that is based on if it is 25 per cent or less, Mr Robinson’s still under the high-income threshold and therefore he’s a person protected from unfair dismissal.” 81

[106] I am satisfied from the evidence that the convenience to Mr Robinson of the house was significantly greater than the convenience to Mr Gandel of the proximity of Mr Robinson in occupying the house in question. In this regard I take into account the circumstances of all of the evidence and material put to me and in particular;

• that the number of callouts were relatively incidental;



• the job description identifies the hours to be worked and the expectations about weekend work



• the evidence indicates that a house manager could live elsewhere;



• the valuation provided by Hocking Stuart in 2006, at that time indicating a “fair market return would be approximately $250 per week”, which was set with an understanding on the part of the valuer that the owner would still require reasonable access to the property for storage purposes.

[107] I also take into account the finding within Rofin’s Case, referred to above, (in that case in relation to the provision of a motor vehicle), that where “the employee’s entitlement to private use is purely incidental” the benefit “should be treated no differently to the provision by the employer of any other tool or piece of equipment essential to the performance of the job”.

[108] After taking into account these circumstances, I am satisfied the benefit to Mr Robinson of the provided house and payment of the utilities charges was not “purely incidental” and was instead significant. I am also satisfied the on-call aspects, which Mr Rossi argued were not so great as to require a discounting of the real or notional value to the level he was arguing, and note that no evidence was led on the subject.

[109] As a result, I am satisfied the whole of the benefit received by Mr Robinson should be included in the sum required by s.382(b)(iii)

[110] I find that the amount of $16,959.05 is my estimation of the real or notional money value of the benefit received by Mr Robinson from the house provided to him by Mr Gandel, which is to be taken into account in assessment of the high income threshold.

[111] I find that the amount $5778.16 is my estimation of the real or notional money value of the benefit received by Mr Robinson from the payment by Mr Gandel of gas and electricity charges in connection with the provision of a house by Mr Gandel, which is to be taken into account in assessment of the high income threshold.

[112] As a result of the foregoing, I assess the sum of Mr Robinson’s annual rate of earnings and such other amounts (if any) worked down in relation to Mr Robinson in accordance with the regulations to be;

Annual rate of earnings	$115,484.01
Amounts worked out in accordance with the regulations
Provision of a house	$16,959.05
Payment of gas and electricity charges	$5778.16
Total rate of remuneration	$138,221.22

[113] Since Mr Robinson’s total rate of remuneration in the 12 months prior to his termination exceeds the high income threshold of $123,300 I find Mr Robinson was not protected from unfair dismissal at the time his employment was terminated.

[114] An order dismissing his application will be issued.

COMMISSIONER

Appearances:

C. Rossi for N. Robinson

N. Ruskin for AJ Gandel

Hearing details:

2013.

Melbourne:

May 31.

 1   Dermot Molloy, Statutory Declaration, 5 April 2013, para 13, and Appendix 3

 2   N Robinson, Outline of Submissions, 18 April 2013, para 1

 3   N Robinson, Outline of Submissions, 18 April 2013, para 1; Dermot Molloy, Statutory Declaration, para 13

 4   Dermot Molloy, Statutory Declaration, para 7

 5   Dermot Molloy, Statutory Declaration, Appendix 1

 6   Transcript, PN171

 7   Transcript, PN171

 8   Transcript, PN115

 9   Dermot Molloy, Statutory Declaration, Appendix 2

 10   Transcript, PN121

 11   Dermot Molloy, Statutory Declaration, Appendix 2

 12   Dermot Molloy, Statutory Declaration, Appendix 2

 13   Statutory Declaration of Ms Lee Wylie, 5 April 2013, Appendix 3

 14   Transcript, PN172

 15   Transcript, PN234

 16   Transcript, PN172

 17   N Robinson, Outline of Submissions, 18 April 2013, para 4 and Transcript PN 80

 18   Lee Wylie, Statutory Declaration , Appendix 4

 19   Lee Wylie, Statutory Declaration, para 12

 20   Lee Wylie, Statutory Declaration, Appendix 5

 21   Lee Wylie, Statutory Declaration, Appendix 6

 22   AJ Gandel, Outline of Submissions, para 42 and 43

 23   Transcript, PN310-314

 24   Lee Wylie, Statutory Declaration, Appendix 7

 25   Transcript, PN56-59

 26   AJ Gandel, Outline of Submissions, 5 April 2013, para 39

 27   AJ Gandel, Outline of Submissions, para 42

 28   Transcript, PN56-59

 29   Transcript, PN302-307

 30   Transcript, PN62

 31   Transcript, PN396

 32   Nathan Robinson, Position Description (Exhibit A1) and N Robinson, Outline of Submissions, 18 April 2013, para 3

 33   Transcript, PN31-39 and Transcript, PN 328

 34   Fair Work Act, ss.332 (1) (b)

 35   Fair Work Act, ss.332 (1) (c)

 36   Fair Work Act, ss.332 (1) (d)

 37   Batley v Cocos Islands Cooperative Society Ltd., [2010] FWA 2289, Cloghan C., unreported, 29 March 2010

 38   Transcript, PN380

 39   Fair Work Act s.332(2)(a)

 40   Transcript, PN421

 41   (30 June 2000) (unreported, Print S7100)

 42  Transcript, PN434

 43   Watiyawanu, at [8]

 44   ibid, at [30]

 45   ibid, at [31]

 46   Rofin Australia Pty Ltd v Newton, (1997) 78 IR 78, per Williams SDP, Acton DP, Eames C

 47   Bell v McArthur River Mining, (1998)81 IR 436, per Munro J, MacBean SDP, Hoffman C, at 449

 48   Transcript, PN392-398

 49   Transcript, PN91

 50   Transcript, PN147 -148

 51   Transcript, PN82

 52   Transcript, PN235 and PN236

 53   Transcript, PN178

 54   Nathan Robinson, Position Description (Exhibit A1)

 55   Transcript, PN123 - PN124

 56   Transcript, PN125 - 127

 57   Transcript, PN174

 58   Transcript, PN270

 59   Transcript, PN88

 60   Transcript, PN269

 61   Transcript, PN172

 62   Transcript, PN116 - 117

 63   Transcript, PN283 – PN285

 64   Rofin Australia Pty Ltd v Newton, at p81

 65   ibid, at 82

 66   Transcript, PN383

 67   Rofin Australia Pty Ltd v Newton, at 82-83

 68   Transcript, PN62

 69   Transcript, PN392

 70   Transcript, PN121

 71   Fair Work Regulations R 3.06(6)(c)(i)

 72   Lee Wylie, statutory declaration, paragraph 18

 73   Mr AJ Gandel, Outline of Submissions, 5 April 2013, paragraph 42

 74   Fair Work Act s.332(2)

 75   Transcript, PN421

 76   Transcript, PN434

 77   K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 (1 August 1985); per Gibbs CJ at [4]; JJ Richards & Sons Pty Ltd and Anor v Fair Work Australia and Anor, [2012] FCAFC 53, per Flick J at [50]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012), per French CJ and Crennan J., at [41]

 78   Macquarie Dictionary, 5th Edition, Sydney, 2009

 79   AJ Gandel, outline of submissions, para 39

 80   Transcript, PN426

 81   Transcript, PN432

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