A recent case in the Federal Circuit Court of Australia found an employee working in two positions for the same employer could not combine the hours of the two positions to determine overtime and other entitlements.
In a recent case, Lacson v Australian Postal Corporation, the Federal Circuit Court of Australia found the overtime, rest relief and meal allowance entitlements of an employee hired by the same employer for multiple positions were not to be calculated cumulatively, but rather separately for each position.
The employee, Mr Lacson, was employed by Australian Postal Corporation (Australia Post) on a casual basis at the Collingwood Post Shop on around 26 February 2001. On around 2 April 2001, Mr Lacson was employed by Australia Post as a Postal Sorting Officer (PSO) at Port Melbourne. On around 18 February 2002, Mr Lacson was employed by Australia Post as a Postal Delivery Officer (PDO) at Collingwood Post Shop. In late 2004, Mr Lacson’s role as a PSO at Port Melbourne was transferred to Sunshine. His position as a PSO and PDO were pursuant to the Australia Post Fair Work Agreement 2010 and the Australia Post Fair Work Agreement 2013.
The enterprise agreements entitled Mr Lacson to certain penalty rates, rest relief and meal allowances for work performed after certain hours or exceeding a total number of hours. Mr Lacson claimed he was not paid these entitlements, as Australia Post failed to consider the hours of his multiple roles cumulatively in determining these entitlements. He claimed that neither of the enterprise agreements allowed for multi-hiring arrangements and their proper construction would support the duties being assessed cumulatively.
He sought almost $200,000 in loss and damages.
The Federal Circuit Court found Australia Post did not breach the enterprise agreements in failing to aggregate the hours worked by Mr Lacson in his two roles. There were “separate and distinct contracts of employment” for each role and they contained different rates of pay and different personnel numbers.
The entitlements and hours of each role were thus separate and Australia Post was right to not consider them in tandem.
Key issues for employers
It is not uncommon for employers to hire employees to perform duties that may fall under more than one defined role within their business. Whilst it was held in this case that the “separate and distinct” roles each had different entitlements and were not cumulative, much will depend in each circumstance on the applicable modern award and enterprise agreement.
As such, it is imperative for employers to be familiar with the terms of the applicable modern award or enterprise agreement. Some modern awards and enterprise agreements require an employee to be classified (and thus paid) at the highest level of duties they perform, whilst others require that employees be paid at the higher rate only for the time they are working at that level. If employers are unsure of how to manage a multi-role employee, they should seek legal advice.