FWA and income threshold + allowances

Mr Lee C v CLS Pty Ltd (U2009/10839)

The employer applied to dismiss the application on the basis the income threshold was exceeded, some $833 above the high income threshold of $108,300 per annum. The employee was paid $109,133 per annum, which included $26,100 in living away from home allowance (LAFHA)) and $4,133 per annum in health insurance being a benefit.

Senior Deputy President (SDP) Acton concluded the living away allowance was in the nature of compensation and was not earnings within section 322 of the Act:

[16] In my view, however, it is relevant that an allowance paid to an employee by an employer is regarded as LAFHA where it is reasonable to conclude from all the surrounding circumstances that some or all of the allowance is in the nature of compensation to an employee for additional expenses incurred because the employee is required to live away from their usual place of residence in order to perform their duties of employment.  It is also relevant that so much of the allowance as it is reasonable to conclude is in the nature of compensation for additional expenses on accommodation that the employee could reasonably be expected to incur is tax exempt.

[22] I think it unlikely the Parliament intended that tax exempt amounts paid by an employer to an employee by way of LAFHA as compensation for additional accommodation expenses reasonably expected to be incurred because the employee is required to live away from their usual place of residence in order to perform their duties of employment should be regarded as earnings, whereas tax exempt reimbursements by the employer of the employee’s actual accommodation expenses are not to be regarded as earnings. It is unlikely the Parliament intended the method of payment by an employer of such an expense should determine whether or not the payment is regarded as part of an employee’s earnings.

Brisbane Barrister – David Cormack

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