A guy, two part-time jobs and an overtime claim: Federal Circuit Court dismisses claim for cumulative overtime

It is increasingly common for workers, particularly those employed on a part-time basis, to hold multiple jobs. Usually the positions will be with different employers and are worked at different days and times.

In Lacson v Australian Postal Corporation [2018] FCCA 511, the Federal Circuit Court of Australia heard an underpayment application by an employee who claimed that the Australian Postal Corporation (Australia Post) did not pay his overtime, rest relief and meal allowances for the work he performed across two part-time positions between October 2010 and October 2014.

Australia Post initially employed the employee in 2001 as a Postal Sorting Officer (PSO). From 2004, he performed the duties of this position from 3pm to 7:30pm. Australia Post also employed him from 2002 as a Postal Delivery Officer (PDO) which he performed between 6am to 9am at another location.

The employee claimed that Australia Post should have added the hours he performed in the morning as a PDO with the work he performed as a PSO for the purpose of calculating his entitlements to overtime, rest relief and meal allowances. The employee submitted that his work in both roles should have been combined because:

• they were both covered by the same enterprise agreements;
• the relevant enterprise agreements did not provide for multi-hiring arrangements; and
• the proper construction of each enterprise agreement supported this approach.

The employee submitted that the roles could only be treated as separate arrangements where the roles were covered by different industrial instruments or where an enterprise agreement included a multi-hiring clause.

Australia Post argued that, for the purpose of calculating entitlements, the PDO role and the PSO role were two separate and distinct positions – they were separate engagements under separate employment contracts. It relied upon subsection 52(2) of the Fair Work Act 2009 (Cth) (FW Act) which states:

(2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.

The Court noted that the relevant issue was whether the employee’s employment in the PDO role was correctly treated as separate and distinct from his employment in the PSO role.

The Court noted that the employee had two separate and distinct part-time roles which he commenced at different times and which were classified differently under the enterprise agreement.

In the Court’s view, subsection 52(2) permitted an enterprise agreement to apply to each separate employment with the same employer. It referred to the Fair Work Bill explanatory memorandum which provided that in relation so subsection 52(2):

… if a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on the employee’s entitlements in relation to each job.

The Court dismissed the employee’s claim, finding that the employee’s hours should not be calculated together and that Australia Post did not breach the enterprise agreement for treating the positions as separate engagements.

Lessons for employers

Multi-hire arrangements are a popular way for employees to supplement their income and to have flexibility. To minimise any potential claims that such arrangements should be bundled together, employers should carefully prepare separate contracts of employment for each position, with separate job descriptions and separate employee numbers and require the employee to complete separate timesheets for each position.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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