Unpaid or underpaid employees

Posted on.
By Tiana Daly.

The recent matter of Wilson v Nowra Coaches Pty Ltd highlights the difficulty employees and employers face when determining an employee’s minimum employment entitlements.

Wilson commenced a small claim action against his employer, Nowra Coaches, in the Federal Circuit Court, alleging that he had been underpaid $16,189.41. This amount consisted of 5.25 hours pay per trip with respect to 137 trips which he claimed he was entitled to be paid under the Passenger Vehicle Transportation Award (Modern Award).
The issues in dispute between the parties were:

whether Wilson was covered by the Modern Award; and
the application of clause 15.2 of the Modern Award, which provided a living away from home allowance on the following terms:
An employee whose employment necessitates absence from home and who is unable to conveniently return home will be paid a minimum of 8 hours per day Monday to Friday and a minimum of 8 hours per day on Saturdays and Sundays plus penalty rates for actual time worked on any such day in accordance with clause 23.

Wilson was employed by Nowra Coaches as a casual coach driver, driving from Melbourne, Victoria to Eden, New South Wales. The nature of the work meant that Wilson would have to spend a couple of nights a week in Eden in between shifts.

Application of the Modern Award
Nowra Coaches contended that since Wilson was a casual employee, he was not covered by the Modern Award.

The Court rejected this argument and noted that clause 10.5 of the Modern Award makes specific provision for casual employees to be employed under the Modern Award and provides a weekly wage rate that casual employees should be paid.

Accordingly, the Court found that there was nothing in the Modern Award that suggested it was the intention to exclude casual employees from coverage under the Modern Award.

Living away from home allowance
Wilson contended that the words “paid a minimum of 8 hours per day” in clause 15.2, referred to 8 hours per ‘calendar day’. Accordingly, on shifts where Wilson was unable to return home, he was entitled to a further 5.25 hours pay at his ordinary rate.

Nowra Coaches argued that the words “8 hours per day” should be interpreted as referring to the ‘shift/day’. Accordingly since Wilson had been paid for over 9 hours work, he was not entitled to any further pay.

The Court rejected Nowra Coaches’ argument and held that clause 15.2 should be interpreted as referring to a ‘calendar day’ and Wilson was entitled to a further 5.15 hours for the 137 trips.

However the Court noted that since Wilson was not actually working for the 5.15 hours claimed, the casual loading did not apply.

Nowra Coaches was ordered to pay Wilson $13,219.24.

How can Watkins Tapsell help you?
To avoid the costs, time and stress of having to go to Court to determine the minimum employment entitlements owed, it is important to understand what documents will apply to your employment contracts and how these documents should be interpreted.

If you are an employee or employer and are unsure whether the correct minimum employment entitlements are being paid, or if you would like further information on how to make a claim for your correct employment entitlements, please contact our Employment Law Team.

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