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Workplace Relations Alert

Driving up the cost of split shifts? Federal Court awards travel allowance to employee

Generally, employees are not entitled to be paid travel allowances or reimbursement when travelling to and from work. However, what happens when an employee drives between two parts of a split or broken shift?

In the recent decision of Tyndall v Goulburn Valley Health the Federal Court considered this issue, and found that the employee in question was entitled to be paid a travel allowance.

The employee worked for Goulburn Valley Health. On Thursdays, she worked a shift at a clinic in Tatura which finished at midday. She then worked a shift from 1 pm at a different clinic in Shepparton.

The enterprise agreement included a travel allowance for employees “required” to provide their own transport in connection with their duties. Goulburn Valley Health determined that she was not entitled to a travel allowance for driving to her shift in Shepparton, as she was not “required” to use her car for her duties. Instead, the travel was no different from her driving to work in the morning, or driving home at the end of the day.

The employee’s claim was first heard by the Federal Circuit Court. The primary judge agreed with Goulburn Valley Health’s position, and the employee appealed to the Federal Court.

The Federal Court considered the language of the enterprise agreement carefully, and decided in favour of the employee. The Court considered that Goulburn Health did not need to give the employee a specific direction to travel using her own car between Tatura and Shepparton for the allowance to be payable.  By giving the employee such a short period of time to travel between regular shifts, the employer was implicitly directing her to use her vehicle for the travel. Therefore, the allowance was payable.

Goulburn Valley Health now faces a further hearing on the compensation payable to the employee, and penalties for breaching its enterprise agreement.

Lessons for employers

While the decision was specific to the facts and the terms enterprise agreement, the Court’s approach indicates that a number of other organisations in the health and community services sector may be required to pay travel allowances.

Employees in the health and community services sector are commonly required to travel between their places of work, and/or work split shifts (or broken shifts).  Employers must carefully consider the language of their enterprise agreement or award before deciding whether or not to offer employees a travel allowance.

Where the enterprise agreement is ambiguous, or requires a ‘direction’ in order for the travel allowance to be payable, it may be necessary to establish documentation or policies that clarify the employer’s position.

If you have any questions about managing allowances or split shifts for employees, please contact the Russell Kennedy Workplace Relations Employment and Safety Team