Cullen and Department of Energy & Minerals [1995] IRCA 126

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI 1502 of 1994

B E T W E E N :

JOHN FREDERICK CULLEN Applicant

AND

DEPARTMENT OF ENERGY & MINERALS Respondent

Before: Judicial Registrar Chancellor

Place: Melbourne

Date: 31 March 1995

REASONS FOR DECISION

This is an application pursuant to Section 170EA of the Industrial Relations Act by John Cullen in respect of the termination of his employment by the Victorian Department of Energy and Minerals on 18 August 1994.

The evidence of the Department was that at the time of termination Mr Cullen was not an Award employee and was employed on a salary of $59,580.00. From that sum he made an employee contribution to the State Superannuation Fund and made a contribution toward the provision of a motor vehicle. The Department provided Mr Cullen with a motor vehicle and made a statutory contribution into the State Superannuation Fund on his behalf estimated at $13,143.00 per annum.

The Respondent argued that Mr Cullen's wages exceeded the $60,000.00 cap contained in section 170CD of the Act. In the case of Terry Shields ‑v‑ Chief Commissioner of Payroll Tax (1989) 98 ALR 559 Mr Justice Lee stated at pages 566 and 567:

"The provision of a car for private use is certainly not within the concept of wages as understood in this country."

In Ardino -v- Count Financial Group Pty Ltd (NI 517 of 1994) Chief Justice Wilcox stated at page 14:

"I do not think it ("relevant wages") includes payments made by an employer on behalf of an employee pursuant to a binding antecedent obligation, whether statutory or contractual."

Applying those tests it is my view that neither the provision of the motor vehicle or the compulsory employer contribution to the superannuation fund should be included as part of Mr Cullen's wages. This matter therefore falls within the jurisdiction of the Court.