When working away from home, an employee can often be entitled to a living away from home allowance. The amount of the allowance, what it covers and when an employee will be eligible for it depends on the parameters set out in the appropriate industrial instrument covering the employee such as an Award or Enterprise Agreement.

Background:

In a recent case, a Victorian paramedic invoked the dispute resolution clause in the applicable Enterprise Agreement to bring his dispute before the Fair Work Commission. The paramedic alleged he was entitled to a living away from home allowance as provided for in the Enterprise Agreement after his employer argued he was ineligible for the payments.

The employee was based in the Warrnambool paramedics branch in Victoria. He has been taking part in a traineeship for mobile intensive care, which is an upskilling from his current role as an advanced life support paramedic. The program required him to attend Geelong three to four days per week to undertake an on-road component of study, between May 2023 and October 2023, and again from March 2024 onwards.

The Enterprise Agreement provided that employees who were required to live away from home in order to perform their role, would be entitled to receive travel allowances and an allowance to cover their cost of accommodation, among other allowances such as meal costs: essentially a living away from home allowance.

The paramedic argued that being selected for the program after applying was essentially the same as being promoted. He stated that as he was now employed as a MICA trainee, he was required under his new role by the employer to attend the training in Geelong, meaning that living away from home fell within the requirements of the role.

The employer argued that he was not entitled to the allowances for two reasons:

• The employer did not require the employee to undertake an upskilling, he had voluntarily entered into the trainee program. Therefore, the employer was not requiring him to live away from home at all during the course of his employment duties; and
• That during any times of training in Geelong, the employee’s base of operations was in fact the Geelong branch and not Warrnambool, meaning he was not living away from home at all.

The Commission’s findings:

The Commission agreed with the employer’s position that the employee was not living away from home at the requirement of the employer. The Commission held that a voluntary entry into the program, or an upskilling undertaken at the initiative of the employee, was not required by the employer, nor was the employee required to continue with the program, having the ability to withdraw and return to his previous role in Warrnambool.

Further, the Commission stated that the employee, upon voluntary entry into the program with knowledge it may require him to undertake training in other locations other than Warrnambool, was unable to then argue the employer was the one requiring him to live away from home. Adding to this, the Commission went one step further and said that the provision in the Enterprise Agreement was if the employer ‘required’ the employee to live away from home, not whether the employee ‘needed’ to.

The Commission also found that the employee was now employed as a trainee whilst undergoing the program and required to undertake his training at the Geelong branch, which made it his home branch over Warrnambool.

For these reasons, the Commission held even if Warrnambool was the employee’s home branch (which they did not believe it was), the employee would still be ineligible for the allowances as he was not required to live away from home in the course of his duties by the employer.

Takeaway for Employers:

The language of Enterprise Agreements and what the “triggers” are for an entitlement are important.  While it’s reaffirming for the Commission to endorse an employer’s understanding of whether it was ‘requiring’ an employee to undertake actions which it understood to be voluntary, it’s even better if the dispute can be avoided in the first place.  Being very clear with employees about what’s being offered in a program or arrangement (and what’s not), and the effect of the employee participating can often go a long way to avoiding the misunderstandings which later form the foundation for a dispute.

Woody Bucci v Ambulance Victoria [2024] FWC 1411

Isabelle Daley, Graduate Associate