The recent Federal Court decision of Lacson v Australian Postal Corporation [2019] FCA 51 has reaffirmed the position than an employer is not liable for cumulative overtime and allowances where their employee performs different duties at two different locations and two different times. Justice Mortimer dismissed an appeal by an employee of Australia Post, who argued he was entitled to overtime, rest relief and meal allowances over a 4 year period while he worked two jobs for the same employer.

Facts

The employee commenced working for Australia Post in 2001 on a fixed term contract on a casual basis in the position of Postal Delivery Officer at the Collingwood Post Office. Also in 2001, the employee commenced a second position as a permanent part-time Postal Sorting Officer at the Melbourne Parcel Facility (MPF), later promoted to Postal Services Officer.

In the first position, the employee worked 3 hours a day, Monday to Friday between 6:00 am to 9:00 am, before going home to start his shift at the MPF from 3:00 pm to 7:00 pm. In 2010 the employee requested, and was given, additional hours at the MPF and was paid overtime for those hours.

The two part-time jobs had very different duties: the first job involved working at a suburban post office sorting mail and performing associated duties; the second job involved operating a forklift and loading bulk mail and parcels. The employee was also paid different rates of pay. Whilst the pay for both positions had originally been recorded on a single pay slip with only one employee personnel number, from 2010 the employee received two pay slips and was issued a second personnel number.

Under the enterprise agreement that covered the employee, he was entitled to penalty rates, rest relief and meal allowances when working overtime. The employee argued that, in calculating his overtime entitlements, both jobs were “particular employment” so the hours worked accrued cumulatively and Australia Post should have combined his 3 hour shift at the Collingwood Post Office with his 4 hour shift at the MPF. Australia Post argued the two roles were separate and distinct, so the hours did not accumulate.

Decision: no attempt to contract out

The Federal Court affirmed the decision of the Federal Circuit Court, finding that Australia Post had not breached its obligations under the enterprise agreement and was not liable to make any additional payments. In reaching his decision, Justice Mortimer rejected the employee’s contention that Australia Post was seeking to avoid an obligation to make overtime payments, instead agreeing with Australia Post that:

it had been the employee’s “choice to apply, at different times, for two different jobs and Australia Post had elected to offer him an employment contract on two different bases: thus, there was no conduct that could be described as Australia Post attempting to contract out of its obligations”.

Lessons for employers

Whilst the case turns on its particular facts (the distinct nature of the locations, hours of work and duties), where an employer engages an employee to perform more than one role within its business, if there is insufficient separation between the roles, the employer may be at risk of breaching the applicable enterprise agreement or award, and potentially liable for significant back pay and penalties.

To avoid this outcome, the employer should clearly distinguish the two roles and the working arrangements for each role and ensure the employee understands one role is not a continuation of the other. This could be done by:

  • engaging the employee under separate contracts of employment;
  • providing a clear and separate position description for each role;
  • assigning the employee a separate personnel number for each position; and
  • issuing separate pay slips for each position.

While this may seem like unnecessary ‘paperwork’, particularly if it is the employee who requested the working arrangements, such measures will minimise the risk of the employer failing to comply with its pay-related obligations.

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