TERMINATION OF EMPLOYMENT – high income threshold – s.394 Fair Work Act 2009 – jurisdictional objections raised on basis applicant not covered by modern award and applicant’s annual rate of earnings exceeds high income threshold – applicant claimed covered by Professional Employees Award 2010 in performing professional engineering duties – whether applicant covered by the Award in performing professional engineering duties as defined by the Award – whether applicant falls within classifications in relevant schedule – to fall within definition of ‘professional engineering duties’ the adequate discharge of duties must require qualifications as/equal to a graduate member of Engineers Australia [Whelan v BMD] – that applicant’s job description requires engineering degree countered by fact that other employees performing similar functions do so without engineering degrees – duties do not require an engineering degree to be adequately performed – duties largely contractual and administrative – engineering qualifications desirable but not essential – principle purpose test applied – applicant not employed to perform work within classification definitions of the Award – held applicant not covered by the Award – whether applicant’s annual rate of earnings less than high income threshold ($136,700) – paid base salary $135,000 p/a plus car allowance of $12,000 and fuel card with expenditure of $8,474.36 – fuel card to be used in calculating earnings – as also in receipt of car allowance must deduct relevant business travel from either fuel card expenditure or car allowance – relevant test to apportion earnings when car allowance provided set out and distinguished from test to determine value of provision of motor vehicle – examination of personal use as opposed to business use appropriate way to determine value of allowance – private usage of car allowance at least $2,807.50 which in combination with applicant’s salary exceeds high income threshold – therefore no need to consider value of fuel card usage – held applicant not protected from unfair dismissal – application dismissed. Sariman v BMD Constructions P/L
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