The Federal Circuit Court handed down a recent decision that focussed on whether a living away from home allowance was payable to an employee, a bus driver.
Nowra Coaches employed the bus driver to work defined shifts during which he drove interstate and then returned a day later. Two of the shifts started before midnight and continued into the next day with the next shift not commencing from interstate until after midnight of the following day. The employee claimed that he had not been paid a living away from home allowance as provided for in the Passenger Vehicle Transportation Award 2010. The allowance provides that employees should be paid a minimum of eight hours for each day they can not conveniently return home, plus reasonable living costs (or be provided with accommodation and meals).
The issue was one of interpretation and what constituted a ‘day’ for the purposes of this clause in the Award. The employer argued that a day should be understood with reference to shifts, given the nature of the industry and other uses of the word in the Award and associated legislation. Judge Whelan held that for the most part the term ‘day’ as used in Awards means a 24 hour period that runs from midnight to the following midnight. The effect of the decision was that the employee was entitled to a living away from home allowance for the two days when he was interstate between shifts and could not conveniently return home. The employee’s claim for casual loading on the rates was rejected (because he was not actually working those hours) but he was awarded just over $13,000 to account for the unpaid allowance over the previous four years.
Lesson for employers
A number of Modern Awards have provision for Living Away from Home allowances, although the eligibility and details of the allowance can vary. If you have employees who regularly conduct work away from their usual place of residence you should consider whether they have an entitlement to an Award-based living away from home allowance - and ensure that it is being calculated correctly.
Wilson v Nowra Coaches Pty Ltd  FCCA 1916
Sarah Waterhouse, Solicitor, BlandsLaw
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