OGH: Is It a Business Trip?

Apr 5, 2024 Benn-Ibler Rechtsanwälte

A per diem allowance is a lump sum payment intended to cover the financial expenses incurred by employees as a result of having to spend the day away from home.

The plaintiff was employed by the defendant as a fitter. On Mondays, the plaintiff worked at the defendant’s office where he regularly attended meetings and collected materials. On other working days, he drove his company car directly from his home to customers to install and service air conditioning systems.

The following provision is included in the collective agreement for commercial workers: ‘A business trip is when the employee leaves the employer’s workplace to carry out a task assigned.’

In the case at hand, the plaintiff sued for his per diem. The defendant argued that the plaintiff was not travelling on business as he was able to return home every day and was therefore not entitled to a daily allowance.

The claim was upheld by the lower courts.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) upheld the court of appeal’s decision, adding:

The employer’s business location, not the employee’s place of work is the basis for the collective agreement for commercial employees. If the employee leaves the employer’s business location to carry out an assignment, it is considered a business trip. This is not changed by the fact that the plaintiff drove directly from home to his customers. A travel time of more than three hours is a precondition, however. This precondition was fulfilled in the case at hand.

It is therefore irrelevant whether the plaintiff was able to return to his home every day or whether he had to spend the night away from home.

OGH 8 ObA 86/23i (15 February 2024)