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The Full Court of the Federal Court recently handed down a decision entitling an employee to a vehicle allowance for split shift travel where the employer did not expressly ‘require’ her to use her own vehicle.

The Facts
The Employee worked for Goulburn Valley Health at three different sites in the towns of Nathalia, Tatura and Shepparton in Victoria. On Monday, Wednesday and Friday, she worked at Nathalia. On Tuesday she worked at Tatura. On Thursdays, she worked a four-hour shift at Tatura finishing at noon, and a second four-hour shift at Shepparton, commencing at 1 pm. The Employee travelled between her residence and workplace on any given day using her personal vehicle. She also used that vehicle to travel the 22 km between Tatura and Shepparton on Thursdays.

The relevant enterprise agreement provided for a vehicle allowance where the Employee ‘is required’ to use her own private vehicle in connection with her duties. The Employee claimed she was entitled to the vehicle allowance for her travel between home and work, and for her travel between Shepparton and Tatura.

The Employer contended that it had not given any express direction, either verbally or in writing, to the Employee that she use her personal vehicle to drive between her home and work, or between sites, and that therefore she was not ‘required’ to use her car. In the first instance, the Federal Circuit Court found in favour of the Employer.1

The Decision
On appeal,2 the Full Court of the Federal Court allowed the appeal in part only. While the Court confirmed that the Employer was not responsible for how the Employee travelled between home and work each day, it took a different view for the travel between Tatura and Shepparton. The Court found that, by fixing the starting time at 1pm in Shepparton, the Employer effectively required the Employee to complete her journey in one hour to be available to perform her duties at the time it required. The Court found that in the absence of any evidence of timely or available public transport between the towns, there was an ‘implied direction’ that the Employee use her personal vehicle to travel between the two towns and was therefore entitled to the allowance.

Lessons for Employers
While this decision relates to a specific enterprise agreement, Employers should take note of the potential impact for Employees who may travel for work purposes frequently or on an ad hoc basis. This is common in many industries, such as sales and professional services, or the social, community, home care and disability services industry. If your business employs such persons, take the time to review any applicable entitlements relating to travel in the relevant award, enterprise agreement, or contract of employment. It may be helpful to review or implement guidelines or policy containing the parties’ expectations in respect to any approved work-related travel.

Require further information/assistance?
If you require further information or advice, please contact your local Consultant at either our Adelaide or Melbourne offices.

1 Tyndall v Goulburn Valley Health [2015] FCCA 3384 (18 December 2015).
2 Tyndall v Goulburn Valley Health [2016] FCAFC 139 (14 October 2016).

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