FWC rejects employee claim for travelling time to be regarded as time worked

FWC rejects employee claim for travelling time to be regarded as time worked

FWC rejects employee claim for travelling time to be regarded as time worked

The Fair Work Commission has rejected an employee’s claim that travelling to and from company-provided accommodation to various sites should be regarded as part of his ordinary time, and therefore effecting payment of overtime, mandatory breaks etc.

The employee, ‘RH’, works for Stabilised Pavements of Australia Pty Ltd (SPA), which has an enterprise agreement covering the company and its road maintenance employees working in Western Australia. It is often common for SPA employees to work in remote and regional areas of the state.

Due to the location of their work, SPA usually arranges and pays for accommodation for the road repair crews, and due to the paucity of accommodation in some areas, employees may be spread out over a few different locations at any given time.

SPA’s traditional practice is to require employees to assemble at a daily pre-start meeting lasting approximately 5-10 minutes, with the location of the meeting being determined by the supervisor or foreman on the particular job. For practical reasons, the meeting is usually held at or near the place where the majority of employees are staying.

Traditionally, SPA has paid the driver of any vehicle to or from the accommodation as work time, but not passengers in the vehicle. The enterprise agreement does not provide travel time between job sites and accommodation.

In this case, RH submitted that all travel time should be considered as time worked for all employees, and on that basis, it should be paid as ordinary time or overtime, depending on the employee’s total hours of work.

The critical question to be determined, in the mind of Commissioner Leila McKinnon, is when work actually starts and finishes each day, which, as she noted, is ultimately a question of fact.

As the Commissioner noted,

“In my view, employees are working from the time of the pre-start meeting until at least the completion of work on the job site each day or shift. This includes while travelling from the pre-start meeting to the work site, during which time they are waiting to perform actual duties. When their shift ends, employees who are no longer required to perform duties in connection with that shift have no commensurate entitlement to payment. For those employees, work `finishes’ at the end of shift on the job site”.

Commissioner McKinnon provided a thorough guide canvassing relevant scenarios:

  1. Work ‘starts’ each day at the pre-start meeting. Time spent travelling from accommodation to the pre-start meeting does not count as time worked.
  2. Any time spent travelling from the pre-start meeting to the job site counts as time worked, whether the employee is driving a vehicle or being transported by another person.
  3. Any time spent driving plant, machinery or vehicles away from the job site at the end of a shift as required by SPA, including for the purpose of transporting employees to their accommodation, counts as time worked.
  4. Time spent travelling as a passenger in a vehicle while being driven ‘home’ at the end of a shift upon completion of duties does not count as time worked.

Consequently, the Commissioner rejected the application.

RH v Stabilised Pavements of Australia Pty Limited [2023] FWC 1027 (2 May 2023)

For queries about travelling, understanding awards or agreements, or any other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 357.0723

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