Narangoda Amayuru Paranahewa (Applicant) submitted an application to the Fair Work Commission (FWC) under section 158 of the Fair Work Act (Cth) 2009 (FW Act), seeking to amend the terms of the Real Estate Industry Award 2022 (Real Estate Award). Specifically, the proposed changes related to circumstances where real estate employees are required to start and/or finish work at locations other than their employer’s office, often necessitating excess travel.
In his decision dated 28 February 2024, Vice President Asbury (Ashbury VC), referred to his provisional decision of 2 January 2024,[1] stating at paragraph [1] that:
[1] “Application by Mr Narangoda Amayuru Paranahewa” (AM2022/32) [2024] FWC 8.
“…I expressed the provisional view that the Real Estate Industry Award 2020 (Award) should be varied to ensure that it is clear when employees are considered to be working and to clarify the circumstances in which they are entitled to be paid motor vehicle allowances. The variations proposed do not extend the operation of the Award, but simply clarify the relevant existing provisions.“ |
The Applicant proposed that clauses 17.11(a) and 17.11(b) of the Real Estate Award should be moved to clause “13—Ordinary hours of work”. In reaching a determination Ashbury VC, outlined the relevant consideration at paragraph [6], stating:
“…As no submissions were made in substantive opposition to the draft determination, I confirm my provisional view. I am not persuaded to move clauses 17.11(a) and 17.11(b) as proposed by the Applicant. The clauses are conceptually connected and removing some of them and placing them in a separate clause will likely cause confusion and impact the ability of parties to understand the way the clauses operate. I am satisfied that the variation proposed is necessary taking into account the considerations in s. 134 of the FW Act. The variation will ensure that the Award provides a fair and relevant minimum safety net of terms and conditions, by making it clear when employees are working and the circumstances in which they are entitled to be paid motor vehicle allowances.“ |
A final determination was issued, in which Ashbury VC again referred to the views that were expressed in the provisional decision, namely that the amendments do no more than clarify existing Real Estate Award provisions, and on this basis, it was decided that the determination (and corresponding changes) will be operative from 1 March 2024.
Importantly, the FWC also noted that “the variations simply clarify provisions of the Award that employers should already be applying….and covers only excess travel and associated expenses rather than all travel”.
The Real Estate Award variation decision we have explored above inserted the following new clause at 17.11 of the Real Estate Award:
“17.11 Excess Travel (a) If the employer requires the employee to start or finish work at a location other than the employer’s business or office premises, the employee must be paid for time reasonably spent by the employee travelling to or from the location which is in excess of the time normally spent by the employee in travelling between the employee’s usual residence and the employer’s business or office premises, on each occasion such excess travel is undertaken. (b) Such excess time is to be treated as working time under clause 13 – Ordinary hours of work and rostering, or clause 19 – Overtime and is counted for the purposes of the minimum engagement for casual employees in clause 11.1, and paid at the ordinary rates prescribed in clause 14 or the overtime rates in clause 19, as appropriate. (c) In addition to the payment for excess time spent travelling as provided in clause 17.11(a), if the employer requires the employee to use the employee’s own motor vehicle in the course of employment, the employee will be paid the applicable motor vehicle allowance in accordance with clause 17.2(b), 17.2(c) or clause 17.3 as agreed between the employer and the employee.” |
For further clarity, Clause 17.2(a) of the Real Estate Award was also varied, by inserting the underlined words, as follows:
(a) If the employer requires the employee to use the employee’s own motor vehicle in the course of their employment, including to undertake excess travelling as described in clause 17.11, the employee must be reimbursed for the use of their motor vehicle in accordance with clause 17.2(b), 17.2(c) or clause 17.3. Clause 17.2 does not apply to the use of a motor scooter or motor-cycle. |
The impact of the decision outlined above can be summarised as providing clarification relating to when employees are entitled to be paid for excess travel time under the Award. The new provisions took effect from 1 March 2024 and in short, will mean (but not be limited to) the following for employers:
As the variations apply exclusively to excess travel time, it’s relevant to consider what is meant by this term. Excess travelling relates to the time and expenses that an employee may incur when they are required by the employer to start or finish work at a location other than the employer’s business premises.
See Also:
Written By Michael Franzone – Associate, Workplace Relations
CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.
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