PR954055 PR954055 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment L Stott and Pearsons Australia Group Pty Ltd (U2004/3932) COMMISSIONER CRIBB MELBOURNE, 7 DECEMBER 2004 DECISION Jurisdiction [1] Ms L Stott (the applicant) has lodged an application under Section 170CE(1) of the Workplace Relations Act 1996 (the Act) claiming that she was dismissed by the respondent (Pearsons Australia Group Pty Ltd) and that her termination was harsh, unjust or unreasonable. [2] The respondent objects to the Commission dealing with the matter on the basis that the applicant is excluded from the jurisdiction of the Workplace Relations Act 1996 by virtue of Section 170CC and Regulation 30B(f) and 30BB. This is on the basis that the rate of the applicant's remuneration immediately prior to her termination exceeded the then applicable jurisdictional limit of $85,400. [3] The respondent withdrew its objection to an extension of time application but, in doing so, did not concede that the date of termination was 30 April 2004. It was the respondent's position that the termination date was 22 April 2004. [Transcript PN6] [4] The applicant was represented by Mr de Carteret, solicitor and the respondent was represented by Ms Morrison, solicitor. [5] There were oral submissions before the Commission together with subsequent written submissions exchanged by both parties. The written submissions from the respondent included an affidavit from Mr R Sessions, Publishing Director, Penguin Books. There was no oral witness evidence. BACKGROUND [6] The applicant commenced with the respondent as Design Manager on 1 August 1994. Elements of the applicant's remuneration were agreed by the parties. These were: · Salary [at date of termination] [Attachment P1 to the respondent's written submissions, dated 9 August 2004] - $59,862.39. · Superannuation - $5,387.61. · the motor vehicle provided was a Ford Fairmont Ghia [6 cylinder, 4 door, automatic sedan]. [7] There are a number of issues requiring determination in this matter. These are: 1. The number of kilometres travelled by the applicant on work related travel. 2. The vehicle reimbursement per kilometre rate to be used. 3. The value of the motor vehicle component of the applicant's remuneration. 4. Whether the applicant's remuneration exceeds the statutory remuneration threshold of $85,400. SUBMISSIONS Respondent BUSINESS RELATED TRAVEL [8] It was the respondent's submission that, as the applicant was provided with a motor vehicle for private use, which was part of her remuneration, there should be no deduction from the value of the motor vehicle component for travel voluntarily undertaken for business purposes. It was also stated that, where the respondent required or authorised the applicant to use her motor vehicle, those kilometres may be deducted as business related travel. [Paragraphs 2-5 of the respondent's written submissions, dated 16 August 2004] Agreed travel [9] In terms of the specific trips which were claimed by the applicant as being work related, the respondent indicated that the following trips were not disputed as being work related trips undertaken by the applicant: Gurka's Restaurant - 7kms McPherson's Printing - 31kms Koo Koo Restaurant - 18kms [Paragraph 43 of the respondent's written submissions, dated 16 August 2004] Leadership Management Australia - 154kms [Paragraph 16 of the respondent's written submissions, dated 9 August 2004] Training Programme (14 sessions x 11kms) 4 trips to the central business district - 80kms [Paragraph 15 of the respondent's written submissions, dated 9 August 2004] [10] This totalled 290kms of work related travel. Unsubstantiated trips [11] The respondent disputed other trips, claimed by the applicant as business related travel. In this regard, it was contended that, as certain trips had not been substantiated by any documentary or other evidence by the applicant, these should not be counted as business related travel. These were: Simon Griffiths Photographer - 29 April 2003 - 21kms Splitting image - 16 May 2003 - 32kms Danie Port, Designer - 22 May 2003 - 11kms [Paragraphs 41 and 42 of the respondent's written submissions, dated 16 August 2004] Disputed trips [12] Other trips claimed were disputed by the respondent on the basis that it was not authorised business related travel or that there was no requirement for such travel. These trips were as follows: Officeworks [13] The applicant has claimed 106kms of work related trips to Officeworks on 5 May 2003, 13 August 2003, 12 September 2003, 24 September 2003, 13 March 2004, 18 March 2004 and 13 April 2004. It was stated that the applicant's Amex receipts indicated that the applicant purchased stationery and computer equipment. [14] It was the respondent's position that the company has a dedicated stationery department and that, if this department did not have the relevant supplies, the respondent had an account with Corporate Express. The respondent further contended that employees had been instructed to order stationery through Corporate Express and that an email had been sent to all staff on 27 June 2002 to this effect. [Attachment P3 to the respondent's written submissions, dated 16 August 2004]. The respondent pointed out that the email had been sent prior to the applicant's first trip to Officeworks. [Paragraph 11 of the respondent's written submissions, dated 16 August 2004] [15] With respect to computer equipment, it was stated that the respondent had an Information Services Department which purchased all information technology equipment for employees. [16] Accordingly, the respondent was of the view that there was no need for the applicant to purchase either stationery or computer equipment. [Paragraph 11 of the respondent's written submissions, dated 16 August 2004]. Therefore, the respondent submitted that these trips should not be included as work related travel. Museum of Modern Art [17] The applicant has claimed 38kms of business related travel on Sunday 11 May when she visited the Museum of Modern Art. It was indicated that the applicant submitted an expense claim for a reference book she purchased when at the Museum. [Attachment P4 to the respondent's written submissions, dated 16 August 2004] [18] The respondent argued that the applicant's visit to the Museum was personal and that she was not required to attend the Museum for any business related reason. It was noted that the applicant had not claimed the $12.00 entry fee. The respondent contended that the book purchase was "incidental" to a personal visit to the Museum and that the trip should not be included as work related travel. Coles Supermarket [19] A claim has been made by the applicant for trips to Coles Supermarket in Elsternwick on 3 July 2003, 23 January 2004 and Saturday 20 March 2004, during which kitchen supplies and snack food were purchased and which were subsequently claimed from the respondent. [Attachment P5 to the respondent's written submissions, dated 16 August 2004] [20] The respondent's position was that the normal practice was to order such items through Corporate Express and that employees in the Design department were aware of and used, this account. [Attachment P6 to the respondent's written submissions, dated 16 August 2004] It was also submitted that each of the trips was either on the applicant's way to or from work and that one trip occurred on a Saturday (20 March 2004). The respondent contended that the authorities stated that travelling to or from work was not business related travel. [Paragraph 19 of the respondent's written submissions, dated 16 August 2004] [21] For all of the above reasons, it was argued by the respondent that these trips should not be included as they were not work related travel. Museum of Victoria [22] It has been claimed by the applicant that her travel (18kms) to the Museum on 25 July 2003 was work related. [23] The response of the respondent was as follows: · on 21 July 2003, the applicant ordered prints from the Museum which were to be couriered to the respondent. [Attachment P7 to the respondent's written submissions, dated 16 August 2004] · The 18kms should not be included as work related travel. Edges Framing [24] The applicant has claimed that she travelled to Edges Framing on 1 and 5 August 2003 (22kms). [25] The respondent contended that: · the applicant was not responsible for framing - one of her team members was and he did not use this particular framing company. [Paragraph 22 of the respondent's written submissions, dated 16 August 2004] · the travel was undertaken on the applicant's way home. · the applicant had no work related reason to travel to Edges Framing. · this travel should not be counted as work related travel. Riot and Craft [26] A claim has been made by the applicant for work related travel (45kms) on 9 August 2003 (Saturday) and 29 August 2003 to purchase art supplies. [27] It was the respondent's position that the applicant had no reason to travel to Riot and Craft as the company had both an account with Corporate Express and with Deans Art Supplies and Eckersley's Art Supplies (for specialist art supplies). Accordingly, the respondent argued that these kilometres should not be counted as work related travel. Strapp Ford and President Ford [28] It has been claimed by the applicant that, on 9 September 2003, she travelled to Strapp Ford and on 3 January 2004 (Saturday) and 22 January 2004, she travelled to President Ford and that these kilometres were work related. [29] The respondent indicated that: · these visits (29kms) were for the servicing of her motor vehicle. · the trips were from the applicant's home and back to her home. · the servicing of the vehicle is a consequence of the provision of a private use vehicle as part of her package and therefore is not work related travel. [Paragraph 29-30 of the respondent's written submissions, dated 16 August 2004] Soulmama Restaurant [30] The applicant has claimed that she travelled to Soulmama Restaurant on 16 October 2003 for work related business (12kms). The respondent stated that there was no documentary evidence of the applicant's attendance and no expenses were claimed. These kilometres were therefore disputed by the respondent as being work related. [Paragraph 31 of the respondent's written submissions, dated 16 August 2004] Borders Bookshop [31] A claim has been made by the applicant for travel of 29kms to Borders on 1 December 2003 and 16 January 2004 to collect books ordered for work. The respondent indicated that the books were ordered by the applicant's Administration Assistant and were delivered to the company's office. [Paragraph 32- 33 of the respondent's written submissions, dated 16 August 2004] [32] It was argued that these trips were therefore not work related and should not be included. Colour Photo Laboratory [33] It has been claimed by the applicant that she travelled 11 work related kilometres to the Colour Photo Laboratory on 23 December 2003. The respondent's view was that it was normal practice for such items to be couriered to the office and that there was no requirement for employees to personally collect such items. [Paragraph 35 of the respondent's written submissions, dated 16 August 2004] Consequentially, it was stated that this trip should not be included as work related travel. Flowers On Malvern [34] The applicant has claimed that she travelled to Flowers On Malvern on Sunday 18 January 2004 for work related business (11kms). The respondent's position was that there was no requirement for the applicant to personally collect the flowers as a courier service was available and also the florist provided a delivery service. [Paragraph 37 of the respondent's written submissions, dated 16 August 2004] Therefore, it was argued that these kilometres should not be included as work related travel. Leadership course [35] The respondent disputed the applicant's claim for 16kms travelled to the training program on 30 April 2004 on the basis that the applicant was terminated on 22 April 2004. It was argued that these kilometres should not be included. [Paragraphs 39 and 40 of the respondent's written submissions, dated 16 August 2004] Literary lunch [36] The applicant has claimed as work related a trip of 140kms to attend a Literary lunch at Dromkeen on 26 July 2004 at Riddell's Creek. The respondent contended that the applicant was not required to attend the lunch nor was she required to use her vehicle to transport herself and other staff to the lunch. CALCULATION OF THE VALUE OF THE MOTOR VEHICLE COMPONENT [37] In calculating the motor vehicle component of the applicant's remuneration, the Commission was referred to the Full Bench decision in Fewings v Kunbarllanjnja Community Government Council [Print Q0675] [Fewings] which determined the formula for calculating the value of the motor vehicle component. [38] In applying this formula, the respondent made the following submissions: Annual distance travelled [39] The closest mileage reading dates provided by the applicant were for 22 April 2003 and 24 April 2004. As the applicant was terminated on 22 April 2004, it was the respondent's position that the actual distance travelled between 22 April 2003 and 24 April 2004 (29,196kms) was the appropriate figure. This was due to the respondent's view that the formula in Fewings was expressed to mean "actual" rather than "average" annual kilometres travelled. Determine the percentage travelled for private purposes [40] As outlined above, the respondent was prepared to accept 290kms as work related travel. [Attachment P11 to the respondent's written submissions, dated 16 August 2004] Estimate the cost per kilometres for the vehicle [41] The applicant's motor vehicle was a Ford Fairmont Ghia, 6 cylinder, 4 door, automatic sedan. The respondent utilised the RACV business vehicle operating costs for the period July 2003 to June 2004. As the RACV does not have a rate for a Ford Fairmont Ghia, the respondent explained that the rate for a Ford Falcon XT 4 door automatic sedan was used. This had resulted in a conservative estimate by the respondent, as the operating cost of a Ford Fairmont Ghia would be somewhere between the cost of operating a Ford Falcon XT 4 door (70.01cent per km) and that for a Ford Fairmont V8 4 door sedan (100.45cent per km). [Paragraph 27 of the respondent's written submissions, dated 9 August 2004] [42] It was the respondent's submission that the Commission should take account of the conservative approach taken by the respondent in assessing the motor vehicle component of the applicant's remuneration. [43] The respondent further argued that it was not appropriate to use the RACV's private vehicle reimbursement rates as these were the applicable rates when an employee used his/her own car for business purposes and was then subsequently reimbursed by the employer. The applicable rates were said to be the RACV's business vehicle operating costs as the respondent had provided the applicant with a vehicle, the operating costs of which were borne by the respondent. [Paragraph 28 of the respondent's written submissions, dated 9 August 2004] Calculations [44] The respondent utilised the formula set out in Fewings which was: Da x Pp = Ap where: · Da = determine annual distance travelled. · Pp = % of the annual distance travelled which was for the employee's private purposes. · Ap = annual distance travelled for private purposes. then: Ap x Ec = V where: · Ec = estimated cost per km as obtained from the RACV. · V = value of the motor vehicle component of the employee's remuneration. [45] In this matter, the respondent submitted that: · Da = 29,196kms (actual kms travelled). · Ec = $0.701c per km (RACV private travel rate). · the termination date was 22 April 2004. · base salary = $59, 862.39. · superannuation = $5,387.61. [46] A number of different scenarios were proffered by the respondent for consideration. The first two were based on the actual kilometres travelled (29,196 kms) and one included the Literary lunch as business related travel and the other did not include the lunch. [Attachment P11 to the respondent's written submissions, dated 16 August 2004] [47] The first scenario, whereby the Literary lunch was not included, resulted in a motor vehicle component of $20,263.78. The total remuneration then came to $85,513.78 which was $113.78 above the remuneration threshold. [48] When these calculations were redone to include the Literary luncheon, the motor vehicle component became $20,165.54 with a total remuneration of $85,415.54. This figure was $15.54 above the remuneration threshold. [49] The other two scenarios were based on a calculation of the average total annual kilometres (29,036.89) and again, either included or did not include, the Literary lunch in the calculations. [50] When the Literary lunch was not included in the calculations, the motor vehicle component came to $20,153.34 with a total remuneration figure of $85,403.35, which was $3.35 over the remuneration threshold. [51] When the Literary lunch was included in the calculations, the motor vehicle component came to $20,053.61 with a total remuneration figure of $85,303.61. This resulted in the applicant's total remuneration being $96.39 below the remuneration threshold. Affidavit of Mr Sessions [52] In addition to filing written submissions, an affidavit of Mr R Sessions was also submitted (dated 9 August 2004). It stated that the applicant's position was that of Design Manager which involved managing a team of in-house designers, design budgets and the contracting of freelance designers, photographers and illustrators. [Paragraph 3 of Affidavit, dated 9 August 2004] Mr Sessions indicated that applicant's position was an in-house one which required little business related travel. [Paragraph 6 of Affidavit, dated 9 August 2004] [53] With respect to the applicant's attendance at the "Meet and Greet the Illustrators" lunch at Dromkeen on 26 July 2004, it was Mr Sessions's evidence that: · he had orally authorised attendance of some designers who had been invited. · at the time of the lunch, one of the invitees was unable to attend. · he had been told that the applicant decided then to attend the lunch. · he did not request that the applicant attend nor was he aware that she had; nor was it necessary for her to do so as part of her work. · the applicant was not required to use her vehicle to drive to the lunch. Other employees who were attending the function were taking their vehicles. [Paragraph 7-9 of Affidavit, dated 9 August 2004] SUBMISSIONS Applicant [54] In written submissions filed on behalf of the applicant, dated 6 August 2004 and 16 August 2004 a list of work related trips was provided. The list was compiled based on either the electronic diary records or Amex records provided by the respondent. In addition, there were a number of trips which were undertaken but for which there were no records, due to incomplete electronic diary records (not available from April 2003 to June 2003). Lunch at Dromkeen [55] With respect to the affidavit lodged by Mr Sessions, the applicant responded regarding the lunch at Dromkeen [Paragraphs 4-12 of the applicant's written submissions, dated 16 August 2004] that: · as stated by Mr Sessions, one of the applicant's duties was to manage a team of in-house designers and the contracting of illustrators. · the lunch at Dromkeen was to "Meet and Greet the Illustrators" and was an integral part of her duties. The applicant needed to be aware of the work done by illustrators and meeting with them and discussing their work was an inherent part of her job. · the applicant was always intending to attend the lunch. When another person was unable to attend, Ms Trump, not the applicant, took that person's place. · as a senior manager, the applicant did not require permission from the Publishing Director on every decision she made, including business travel to Sydney. · in an email dated 2 December 2003, the applicant was asked if she was "happy" to take two other employees to the lunch. [Attachment B to the applicant's written submissions, dated 16 August 2004] [56] On this basis, it was submitted that the lunch at Dromkeen was business related travel. [57] In support of the applicant's argument that her remuneration package was below the threshold, a copy of an email from the Payroll Officer was attached to the written submissions of 16 August 2004. [Attachment A] This advice contained the following: - Base salary - $59, 862.39. - Superannuation - $5, 387.62. - Car operating lease - $12, 208.44. Total remuneration - $77, 458.45. [58] Accordingly, it was argued that the applicant's remuneration was below the remuneration threshold. Calculations [59] The applicant submitted that the formula adopted from Fewings was the most appropriate albeit with some flaws. It was argued that, of the various rates provided by the RACV, the one that was applicable was the business vehicle operating cost rate rather than the private vehicle operating cost rate. Mr de Carteret relied on the decision in Fewings and in Coen v Boral Building Services [Print S6319] to support this contention. Further, it was stated that the vehicle was not a private vehicle but one, provided by the employer, regarding which, the respondent could make claims in terms of GST and FBT. This would not be open to the respondent if the motor vehicle was owned by the applicant. [60] In addition, it was argued that the vehicle was used by other staff, which was acknowledged by Mr Sessions in his affidavit. [Paragraph 5] [61] On this basis, the applicable rate was said to be the business rate of 30,000kms per year - 45.54 cents/km. This rate was selected on the basis that the applicant's annual kilometres were approximately 29,000kms. [Paragraph 19 of the respondent's written submissions, dated 16 August 2004] [62] Therefore, it was submitted that the applicant's motor vehicle component would be - 29,000kms x 45.54 cents per km =$13,206.60. This was prior to any work related kilometres being deducted. The applicant contended that the total remuneration figure would therefore be $78,406.60 which was $6,933.40 below the threshold. [Paragraph 23 of the applicant's written submissions, dated 16 August 2004] [63] In the alternative, it was contended that a more accurate measure of the kilometres travelled in the 12 months prior to the applicant's termination was: · the applicant received a new vehicle in October 2000 and when it was returned to the respondent on 28 May 2004, 102,286kms had been travelled. · the period from October 2000 to 28 May 2004 is approximately 184 weeks. The average kilometres travelled per day was therefore 79.41kms per day. · 12 months worth of travel was therefore 79.41kms/day x 365 days = 28,984.65kms. [Paragraphs 24- 27 of the applicant's written submissions, dated 16 August 2004] [64] The applicant provided a number of different calculations. [Paragraphs 29-37 of the applicant's written submissions, dated 16 August 2004] [65] The first six were based on the average annual kilometres travelled (28,985) whilst the remaining six were based on the kilometre figure put forward by the respondent of 29,196kms. Both annual kilometre figures were calculated using three different RACV rates per kilometre, namely, 70.1cents/km; 66.46cents/km and 45.54cents/km. Each of these was, in turn, calculated on the basis of including the Dromkeen lunch and then not including the lunch. [66] Table 1 A - total average kms - 28,985 - business related travel included Dromkeen - 775kms - total travel - 28,210kms - rate per km used - 70.1cents = motor vehicle component - $19,775.21 Total remuneration - $85,025.21 ($374.79 below threshold) [67] Table 1 B was the same calculation as Table 1 A above, except that the Dromkeen lunch was not included. This resulted in 635kms of business related travel with total travel being 28,350kms. The motor vehicle component was therefore $19,873.55. Total remuneration came to $85,123.35 ($276.55 below the threshold). [68] The next two tables were calculated at a lower RACV rate of 66.46cents/km. Table 2A included the Dromkeen lunch as business related travel, whereas Table 2B did not include the lunch. The kilometres travelled in both tables were 28,985kms. [69] Table 2A provided for a motor vehicle component of $18,748.36 (28,985kms less 775 kms = 28,210 x 66.46cents/km). Total remuneration was calculated as $83,998.36 ($1,401.63 under the threshold). [70] Table 2B set out the total kilometres travelled as 28,350kms. The Dromkeen lunch was included so the motor vehicle component was calculated to be $19,873.55, with a total remuneration of $85,123.35 ($276.55 below the threshold). [71] A further set of tables utilised a RACV rate of 45.54 cents/ kilometres and 28,985kms as the kilometres travelled. Table 3A included the Dromkeen lunch with 28,210kms being the total kilometres. The motor vehicle component came to $12,846.83 (28,210kms x 45.54 cents/km) resulting in total remuneration of $78,096.83 ($7,303.16 below the threshold). [72] Table 3B was calculated without the Dromkeen lunch - 28,350kms in total x 45.54 cents/km resulting in a motor vehicle component of $12,910.59. Total remuneration came to $78,160.59 ($7.239.41 below the threshold). [73] The tables were then recalculated using the respondent's kilometres travelled figure of 29,196kms. The calculations were made based on the three RACV per kilometre rates - 70.1cents/km; 66.46cents/km and 45.54cents/km. Again, there was a calculation for each RACV rate which either included the Dromkeen lunch or did not include it. [74] Table 4A utilised 29,196kms as the kilometres travelled, an RACV rate of 70.1 cents/km and included the Dromkeen lunch. Therefore, the motor vehicle component was calculated as $19,923.12 (29,196kms - 775kms = 28,421kms x 70.1cents/km). Total remuneration came to $85,173.12 ($226.87 below the threshold). [75] Table 4B was the same calculation as in Table 4A expect for the exclusion of the Dromkeen lunch. The motor vehicle component came to $20,021.12 with a total remuneration of $85,271.26 ($128.73 below the threshold). [76] The tables in 5A and 5B were calculated using 29,196kms and the RACV rate of 66.46cents/km. Table 5A included the Dromkeen lunch with the motor vehicle component being $18,888.59 (29,196kms less 775kms = total of 28,421kms x 66.46cents/km). The total remuneration came to $84,138.59 ($1,261.40 below the threshold). [77] Table 5B did not include the Dromkeen lunch and resulted in a motor vehicle component of $18,981.64. Total remuneration came to $84,231.64 ($1,168.36 below the threshold). [78] Tables 6A and 6B were calculated using the RACV rate of 45.54cents/km. Table 6A included the Dromkeen lunch and resulted in a motor vehicle component of $12,942.92 (29,196kms - 775kms = 28,421kms x 45.54cents/km). Total remuneration came to $78,192.92 ($7,207.08 below the threshold). [79] Table 6B did not include the Dromkeen lunch so the motor vehicle component came to $13,006.67 (29,196kms - 635kms = 28,561kms x 45.54cents/km). Total remuneration was $78,256.67 ($7,143.33 below the threshold). [80] On this basis, it was submitted that the applicant's remuneration was below the statutory threshold and therefore within the jurisdiction of the Commission. CONCLUSIONS [81] The leading authority with respect to the calculation of an applicant's rate of remuneration is the Full Bench decision in Fewings. With respect to this matter, I adopt the method for calculating the value of the motor vehicle component of an applicant's remuneration contained therein. [82] The method is as follows: "1. Determine the annual distance travelled by the vehicle in question. 2. Determine the percentage of the annual distance travelled which was for the applicant's private purposes. 3. Multiply the figures from 1. and 2. This provides the annual distance travelled for private purposes. 4. Estimate the cost per kilometre for a vehicle of the type used. This information can be obtained from the RACV, NRMA or like motoring organisations. 5. Multiply the annual distance travelled for private purposes by the estimated cost per kilometre. The result is the value of the motor vehicle component of the applicant's remuneration." [Paragraph 5] [83] I propose to follow this method. 1. Determine the annual distance travelled [84] The closest mileage reading dates provided by the applicant were for 22 April 2003 and 24 April 2003. These reading dates provided for a distance of 29,196kms travelled during that period. This period represents one year and three days. [85] A further consideration is that it was not agreed between the parties as to the termination date of the applicant. The respondent's position was that it was 22 April 2004 whilst the applicant contended that the correct date was 30 April 2004. For the purposes of this calculation only, 22 April 2004 will be taken to be the termination date. [86] In light of the difficulty in ascertaining the exact number of kilometres driven in the 12 months preceding the applicant's termination, it was submitted by both parties that the distance travelled by the applicant could be ascertained by calculating the average kilometres travelled. I have considered this proposition but prefer to proceed on the basis of the "actual annual" kilometres travelled, as set out in Fewings. [87] The only available mileage data is from 22 April 2003 until 24 April 2004. It is acknowledged that the resultant figure of 29,196kms covers a period of one year and three days. However, for the purposes of the calculation, at least in the first instance, the figure of 29,196kms will be utilised. [88] Accordingly, the annual distance travelled by the applicant is determined to be 29,196kms. 2. Determine the percentage of the annual distance travelled for private purposes [89] The applicant's vehicle was supplied for her private use as part of her remuneration package and was fully maintained by the respondent. There was detailed argument between the parties regarding the number of business related kilometres travelled to be deducted from the total annual kilometres. It was accepted by the respondent that the applicant had travelled 290kms on business related matters. This consisted of: · Four work related trips between Camberwell and the City (80kms) · 14 attendances at a Leadership Course (154km) [Paragraph 6 of 16 August 2004] · Gurkha's Restaurant (7kms) · McPherson's Printing (31kms) · Koo Koo Restaurant (18kms) [Paragraph 3 of 16 August 2004] [90] It was not accepted by the respondent that the applicant's travel to attend the Literary lunch at Dromkeen on 26 July 2004 (140kms) was business related. There were comprehensive submissions made regarding whether attendance at the Literary lunch was business related travel, including an affidavit from Mr Sessions. I have considered all of the material before me and am satisfied that the applicant's attendance at the Literary lunch was business related. One of the applicant's responsibilities was the contracting of illustrators on behalf of the respondent. The lunch was entitled "Meet and Greet the Illustrators" and I accept that it provided the applicant with an opportunity to meet with illustrators and discuss their work. [91] Accordingly, I find that the 140kms travelled by the applicant to attend the Literary lunch on 26 July 2004 was business related and should be deducted from the total private mileage figure. [92] For the purposes of these calculations, in the first instance, I find that the Literary lunch (140kms), together with the 290kms agreed business travel, were the total business kilometres travelled by the applicant. This results in a total of 430kms of business related travel by the applicant. 3. Multiply the figures from 1 and 2 = the annual distance travelled for private purposes [93] In this matter, the calculation required to determine the annual distance travelled for private purposes is to deduct 430kms of business related travel from the annual distance travelled for private use, which was 29,196 kms. This results in a figure of 28,766kms, which represents the annual distance travelled for private purposes. 4. Estimate the cost per kilometres for a vehicle of the type used [94] The parties made detailed submissions regarding whether the RACV's private vehicle operating cost figure should be used or whether it should be the RACV's business vehicle operating cost figure. [95] Having considered all of the material before me, I find that the appropriate operating cost figure is that for a business vehicle, rather than for a private vehicle. It is noted that, in the discussion in Fewings, it was the business vehicle cost figure which was used. The Commission was also referred to the decision in Coen where, in following Fewings, Smith C specifically referred to the business vehicle rate. [Paragraph 20] [96] The applicant's vehicle was a Ford Fairmont Ghia (6 cylinder, automatic sedan). [97] The RACV's business vehicle operating costs schedule classifies motor vehicles as medium cars, large cars, prestige cars etc. The parties, in doing their calculations, have adopted the rate for a Ford Falcon XT 4 door automatic sedan. This car is classified as a large car by the RACV. The only other option provided by the RACV is the Ford Fairlane V8 4 door automatic sedan (prestige car). It was argued by the respondent that the Ford Falcon XT was a lesser model of motor vehicle when compared with Ford Fairmont Ghia. The respondent explained that the Ford Fairmont Ghia was placed in the Ford hierarchy between the Ford Fairmont (lower) and the Ford Fairlane (higher). It was contended, therefore, that the operating cost of a Ford Fairmont Ghia would fall at a point between the operating cost of a Ford Falcon XT and a Ford Fairmont V8 4 door sedan, which was higher. The Commission was asked to take note of the respondent's conservative approach, when determining this matter. [Paragraph 27 of the respondent's written submissions, dated 9 August 2004] [98] Having considered the RACV's business vehicle operating costs schedule, I find that the operating cost of a Ford Falcon XT is the most appropriate rate to be utilised in this case. The RACV provides two business rates for this type of motor vehicle - 15,000kms and 30,000kms. As the annual distance travelled was 29,196kms, the 30,000kms rate will be used. The RACV 30,000kms business vehicle operating cost i s 45 .54cents per km. 5. Multiply the annual distance travelled for private purposes by the estimated cost per kilometres [99] The annual distance travelled by the applicant for private purposes was 28,766kms. The estimated cost per kilometre wa s 45 .54cents. [100] The motor vehicle component of the applicant's remuneration is therefore 28,766kms x 45.54cents = $13,100.00. Total remuneration [101] The applicant's total remuneration is calculated as follows: Salary - $59,862.39 Superannuation - $5,387.61 Motor vehicle component - $13,100.00 Total = $78,350.00 [102] The statutory remuneration threshold is $85,400. Therefore, I find that the applicant's total remuneration is below the statutory threshold (by $7,050.00). [103] As the applicant's total remuneration is clearly below the statutory threshold, even taking into account the conservative approach, adopted by the respondent, to the operating cost per kilometres, it is not necessary to determine the disputed items of travel to ascertain whether each trip was for business related purposes or private purposes. [104] Accordingly, I find that the Commission has jurisdiction to hear the application. The application will be remitted for conciliation. BY THE COMMISSION: COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code C>