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Workplace Relations Alert

Double trouble: Federal Circuit Court recognises that entitlements for two separate jobs worked by an employee within the same organisation must be calculated independently

| Published by Libby Pallot, Anthony Massaro, Abbey Burns, Ben Tallboys, Caitlin Walsh

The Federal Circuit Court has rejected a claim for unpaid overtime, rest relief and meal entitlements by an employee who worked in two separate part-time positions at Australia Post.

This decision, in Lacson v Australian Postal Corporation [2018] FCCA 511, provides clarity and guidance for employers who frequently employ people in more than one role within their organisation.

Background

In 2002, Mr Lacson was employed by Australia Post as a Postal Delivery Officer (‘PDO’) at the Collingwood Post Office.  In this role, Mr Lacson’s duties included sorting mail.  He worked mornings, from around 6:00 a.m. until 9:00 a.m.

In 2004, Mr Lacson took up further employment with Australia Post as a Postal Services Officer (‘PSO’) at its Melbourne Parcel Facility in Sunshine West.  In this role, Mr Lacson’s duties included loading and unloading bulk mail and parcels with a forklift, and other associated duties.  He worked afternoon/evening shifts, typically from 3:30 p.m. until 7:30 p.m.

In 2010, as a result of a new HR/payroll system, Australia Post assigned employees with multiple jobs a new personnel number for their second or third jobs.  Consequently, Mr Lacson was issued with a second personnel number for the PSO role.

Mr Lacson’s employment was covered by enterprise agreements which provided for a range of entitlements to employees who worked additional hours, including overtime payments, rest relief and meal allowances.  Mr Lacson claimed that in calculating his entitlements under the enterprise agreements, particularly in relation to overtime, Australia Post failed to take into account the hours that he worked across both his roles, as a whole.

Mr Lacson contended that as the enterprise agreement which covered his employment did not provide for a multi-hiring arrangement, his hours should have been calculated cumulatively for the purpose of determining overtime and other entitlements.  Multi‑hiring arrangements are mechanisms contained within certain enterprise agreements which expressly allow a full-time or part-time employee to also be engaged as a casual employee in the same establishment outside normal working hours.

Decision

Judge McNab held that Mr Lacson had two separate part-time positions.  The hours worked by Mr Lacson as a PDO in Collingwood were not to be calculated cumulatively with the hours he worked as a PSO in Sunshine West.  Therefore Australia Post had treated Mr Lacson’s distinct roles appropriately, and had not breached the applicable enterprise agreements.

In reaching his conclusion, McNab J gave close consideration to the distinction between the types of work performed by Mr Lacson in each position.  The employee’s duties were sufficiently distinct from one another and corresponded to different classifications under the relevant enterprise agreement.  His Honour also highlighted the different personnel numbers and different hourly wages for each position as further support for his conclusion.  The terms of Mr Lacson’s employment contracts were also relevant.

Lessons for employers

We commonly see employers engaging employees to work in multiple roles within their organisation. Employers should be mindful that if there is not sufficient separation between the multiple roles performed by the same employee, the employer may be liable to pay substantial penalties and allowances under an applicable award or enterprise agreement. 

To avoid confusion, employers should carefully monitor the work being undertaken and ensure that the employees’ written terms and conditions reflect the agreement reached.

For advice on modern awards, enterprise agreements and employment entitlements, please contact Russell Kennedy’s Workplace Relations, Employment and Safety Team.

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