Should an employer pay overtime for an employee's commute?

Case argues employee was 'working' when he took a company-provided bus

Should an employer pay overtime for an employee's commute?

The Western Australian Industrial Relations Commission (WAIRC) recently dealt with a case where an employee claimed he was entitled to overtime payments for time spent on an employer-provided bus commuting to a worksite.

Background of the case

According to the WAIRC, the employee was an electrician who held a contract with a company providing workers for a specific plant.

It said that the company established a transport depot in a car park 12km, or approximately 20 minutes, from the plant and noted that the latter was only accessible by bus from the said car park.

Thus, the Commission said that people working at the plant, including the employee, were compelled to commute to and from the car park by bus daily. 

According to the WAIRC, the employee claimed that he had a “contractual entitlement” to overtime payment and a site allowance for the time he spent on the bus because the term “work performed” under the clause of his employment contracts referring to overtime payment, should be read broadly to refer to “work completed whenever an employee is attending at a place and time that the employer required.”

The employee further said that even inside the company’s bus, he was still subjected to the company’s directions, such as seating arrangement under the COVID-19 safety measures, and he was still obliged to follow company policies and procedures relating to conduct and behaviour.

In its defence, the employer argued the words “work performed” were only limited to indicate the time when the employee was involved in trade discipline and that this claim was supported by looking at the whole context of the clauses within the employment contract.

The Commission’s decision

The WAIC dismissed the employee’s claim and said he was not eligible for overtime payments for the time spent on the bus.

It further said that while it found that the employee was obliged to take the bus, the employee was not “under work” at that time based on the terms and conditions of his contract.

The Commission said that the employment contract referred to work as starting and finishing at the work site, being the place “where he performs operational and productive work involving the application of trade skills, and functions associated with the application of trade skills.” It also defined “work performed” in the overtime clause as “activities including skills of the trade, productive work, or associated functions.”

Thus, the employee’s claim that his bus commute was under “work performed” solely because he acted based on the company’s instructions was “not sufficient evidence” for the WAIRC. 

The Commission said it was “not sufficiently proved” that the employee “engaged in activities including skills of his trade, productive work, or associated functions” during his bus commute.

“While he was directed to attend the carpark and be transported by bus, he was able to engage in entirely private activities while on the bus, and that he was not performing duties associated with his trade or job functions at that time,” the Commission said.       

WAIRC also said it was not within its jurisdiction to alternatively enable the employee to claim based on “unjust enrichment.”

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