Two Jobs, One Boss – What could go wrong?February 14, 2019
In a recent decision of the Federal Court, the court dismissed an appeal by a worker claiming overtime, rest relief penalties and meal allowances resulting from the worker’s two part-time jobs with the one employer.
In appealing a decision of the Federal Circuit Court, the worker claimed that the court had incorrectly interpreted provisions of the Fair Work Act relating to how an enterprise agreement should have applied to the worker’s employment in two roles, with a single employer, when both of those roles were covered by the same agreement.
In this case the worker had entered into two separate and distinct contracts of employment at different times, performing different work, at different places, with the same employer.
The worker claimed that the hours worked by himself in his two positions should have been considered as ‘cumulative’ for the purposes of his entitlements. The worker claimed that in refusing to do this, his employer had breached a number of overtime and penalty provisions of the relevant enterprise agreement and that, as a consequence, he was owed many thousands of dollars in underpaid entitlements. There was no dispute that both positions were covered by the terms and conditions of the enterprise agreement.
In her decision* the Honourable Justice Mortimer rejected the worker’s arguments and found that section 52(2) of the Fair Work Act worked to confine the circumstances in which an enterprise agreement will ‘apply’ to an employee (and therefore create entitlements for the employee) to those circumstances where the employee is occupying a particular position or a particular job. Her Honour said, “So long as there is only one enterprise agreement which applies to the employee at a given time…, in my opinion there is no prohibition in the F(air) W(ork) Act, or in the common law, to there being two separate contractual arrangements between an employee and an employer, and s 52(2) recognizes this by qualifying the way an enterprise agreement can “apply” to restrict its application to the “particular employment” of a worker.”
Without attempting to simplify her Honour’s detailed reasoning, or identifying the implications and/or limitations of adopting this decision as ‘gospel’, this case raises some important considerations for employers who are considering the issue of secondary employment.
Firstly, any request for secondary employment needs to be considered in the context of the Award or Agreement that covers the worker and /or workplace. This is because the issue of secondary employment may be regulated by that instrument.
The second issue is whether the secondary employment contract has been genuinely agreed to and has not been entered into as a ‘contrivance’ or device to avoid paying overtime or some other Award or Agreement entitlement. This reflects the legal principle that an employer and an employee do not have the ability to ‘contract out’ of the entitlements given to employees by industrial instruments.
However, as is usual with most employment related matters there are many factors which can turn an ‘arrangement’ on it’s head, or give rise to unwanted workplace risks. The issue of secondary employment is one of those.
For advice on the issue of secondary employment contact your Livingstones & SHR Group consultant on +61 7 3833 1200, who will be happy to assist you.
*Lacson v Australian Postal Corporation  FCA 51 (1 February 2019)
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