Alzheimer’s Australia WA Ltd

[2016] FWCA 4863

[2016] FWCA 4863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Alzheimer’s Australia WA Ltd
(AG2016/3404)

ALZHEIMER’S AUSTRALIA WA LTD. “STAFF” ENTERPRISE AGREEMENT 2016

Social, community, home care and disability services
COMMISSIONER SAUNDERS	NEWCASTLE, 20 JULY 2016

Application for approval of the Alzheimer’s Australia WA Ltd. “Staff” Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Alzheimer’s Australia WA Ltd. “Staff” Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Alzheimer’s Australia WA Ltd. The Agreement is a single enterprise agreement.

[2] During the approval process an issue was raised by an employee of Alzheimer’s Australia WA Ltd (AAWA) in relation to the travel allowance provisions of the Agreement. In particular, the employee submits that the Agreement does not pass the BOOT because the effect of the Agreement is that an employee is not entitled to receive a travel allowance for driving direct from the employee’s home to the residence of a client or from the residence of a client to the employee’s home, unless the distance exceeds 20km.

[3] The employee who objected to the approval of the Agreement on this basis is a Support Worker covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (SACS Award). The employee is required to use their car in order to drive to, and between, the residences of clients in order to provide services to the clients. The employee travels direct from their home to the residences of clients of AAWA, rather than first attending a central or other office of AAWA.

[4] Clause 20.5(a) of the SACS Award is in the following terms:

“Where an employee is required and authorised by their employer to use their motor vehicle in the course of their duties, the employee is entitled to be reimbursed at the rate of $0.78 per kilometre.”

[5] The relevant provisions of the Agreement are as follows:

“18.7 Where an employee is required and authorised to use their motor vehicle in the course of their duties, they shall be paid an allowance of not less than seventy eight (78) cents per kilometre.

18.8 An Employee commences their duties each day on arrival at the first place of work and finishes work on departure from the last place of work for the day.

18.9 Place of work or work place shall include locations at which the Employee attends rostered meetings, training or provides services to clients.

18.10 For the purposes of this sub-clause, use of a motor vehicle by respite Support Workers who work in the Community in the course of his/her duties includes:-

a) Travel from the Employee’s home to a client’s residence or from a client’s residence to the employee’s home, but only in respect of the distance in excess of twenty (20) kilometres travelled one way …”

[6] The effect of clause 20.5(a) of the SACS Award is essentially the same as clause 18.7 of the Agreement. That is, they both provide for a travel allowance of not less than $0.78 per kilometre to be paid to an employee when the employee is required and authorised to use their motor vehicle in the course of their duties.

[7] The SACS Award does not specify when an employee commences their duties, whereas the Agreement does. Clause 18.8 of the Agreement makes clear that an employee commences their duties each day on arrival at the first place of work and finishes work on departure from the last place of work for the day. For a Support Worker who travels to and between the residences of clients, the residences of the clients are the Support Worker’s places of work (clause 18.9 of the Agreement).

[8] Although the SACS Award does not expressly state when an employee commences their duties, if an employee made a claim under the SACS Award for the payment of a travel allowance in respect of their travel from their home to the residence of their first client for the day in circumstances where the employee’s usual practice was to travel from their home directly to the residence of a client, I am of the view that such a claim would not succeed. That is because an employee’s duties do not commence until they arrive at their workplace. For an employee who is engaged to provide services at the residences of clients, the employee’s places of work are the residences of their clients. Accordingly, the SACS Award would, in my view, be given the same interpretation as clauses 18.8 and 18.9 of the Agreement in the circumstances to which I have referred.

[9] Because the Agreement confers on a Support Worker an entitlement to the payment of a travel allowance insofar as the Support Worker is required to travel more than 20km from their home to the residence of a client whereas the SACS Award does not, the Agreement provides a benefit over and above the SACS Award. Accordingly, in my view, the motor vehicle allowances in the Agreement are more beneficial than the motor vehicle allowances in the SACS Award.

[10] Also relevant to my assessment of the BOOT is the fact that employees covered by the SACS Award are entitled to be paid remuneration under the Agreement which is at least 8% higher than they would receive under the SACS Award.

[11] Having regard to each of the terms of the Agreement and whether they are more or less beneficial than the terms of the SACS Award, my overall assessment is that all employees would be better off under the Agreement than under the SACS Award.

[12] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 July 2016. The nominal expiry date of the Agreement is 19 July 2019.

COMMISSIONER

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