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
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
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
However the Court noted that since Wilson was not actually
working for the 5.15 hours claimed, the casual loading did not
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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