Does 1 + 1 =Overtime? The Federal Court Says No

February 22, 2019
FCB Workplace Law

Industry Focus

Hospitality & Leisure

In the recent decision from the Federal Court of Australia Lacson v Australian Postal Corporation [2018] FCCA 511, the Court has confirmed that if an employee has two clearly distinct jobs with one employer, overtime or other penalty rates under an enterprise agreement are calculated separately on each job, not cumulatively on all hours worked for the one employer.

Mr Lacson held two separate jobs with Australian Postal Corporation (Australia Post).  Mr Lacson’s first job was as a part-time employee as a Postal Delivery Officer (PDO) at the Collingwood Post Office.  In this role Mr Lacson’s duties consisted of sorting mail.  In his second job, he was employed in a part-time role as a Postal Services Officer (PSO) at the Melbourne Parcel Facility.  In this role Mr Lacson’s duties consisted of sorting parcels some of which was performed by driving a forklift.  Importantly, each role (i.e. the PDO and PSO roles) were classified separately and attracted different hourly rates under the relevant enterprise agreement.  Ultimately, the Court made a finding that Mr Lacson had two contracts of employment with Australia Post – one for each role.

Mr Lacson performed work in these two jobs between 6am and 11.20pm each day.  He claimed that because he worked for one employer the total hours he worked should be assessed on a cumulative basis entitling him to overtime, rest relief and meal allowances under the relevant enterprise agreement.

The question for the Court was how the relevant enterprise agreement should apply to Mr Lacson’s employment with Australia Post.  The Court was required to assess how section 52 of the Fair Work Act 2009 (Act) should be interpreted.  Section 52 of the Act sets out when enterprise agreements apply to employees.  It prescribes that enterprise agreements apply to employees in relation to ‘particular employment’.

The Court had to decide whether ‘particular employment’ means that an enterprise agreement should be applied on a per job basis or to all the hours Mr Lacson worked on a cumulative basis.

The Court held that the phrase ‘particular employment’ is to enable identification with sufficient precision of what the job or position of an employee is at any given time, that is, what is the position description or classification given to the work they are performing, when determining whether an enterprise agreement applies to an employee’s employment.

The Court held that the phrase ‘particular employment’ should be confined to circumstances where the employee is occupying a particular position or particular job.  This means that an enterprise agreement applies to the employee while they occupy a particular job and therefore not on a general cumulative basis if an employee does happen to hold two or more jobs with one employer.

As such the Court found Mr Lacson was not entitled to the overtime, rest relief or meal allowances on a cumulative basis as he claimed.

Tips if you have employees performing two or more separate jobs for one employer

Ensure that the:

  1. employee has two separate employment agreements;
  2. employee receives separate payslips for each job; and
  3. duties of each job are separate and distinct from each other.

Point 3 is particularly important because if the jobs are not separate and distinct, the employer may be liable for overtime and other such payments as if the employee was in a singular role.