No overtime for employee working two jobs

Industry Focus

Health & Aged Care

In a decision that could have significant implications for employers in the aged care industry, the Federal Circuit Court of Australia has recently determined that a part-time employee working two jobs for the one employer was not entitled to overtime based on the employee’s combined hours of work in both roles.

In reaching this decision, Justice McNab of the Court considered the “separate and distinct” nature of the two roles (and the contracts of employment applying to those roles) the employee performed for Australia Post, including in particular that:

• the employee was employed to perform work in two different jobs from two different Australia Post locations;
• the jobs were obtained at different times;
• the employee had been issued with separate employee ID or personnel numbers for each of the jobs;
• the employee performed different duties in each position; and
• the employee was paid differing rates of pay depending on the job that was being performed at the time in question.

This decision has the potential to have significant implications for employers in the aged care industry where staff may often be employed to work in several different roles within a facility or across different facilities. For example, care service employees who also perform administration, maintenance and/or kitchen duties on weekends or lifestyle/recreation officers who also perform work as a care service employee. Employers will therefore need to consider whether their staff are working in positions that are separate and distinct and, if this is the case, whether the employee should receive overtime and other entitlements based on their aggregated hours of work.

However, where the above factors are not present, the position may become less clear and employers should seek professional advice as to whether the roles would satisfy the criteria and be considered different jobs.

If this alert raises questions about your overtime arrangements or you would like further advice, contact our Aged Care Industry Leader, Megan Bowe (Partner FCB Workplace Law) on (02) 9922 5188.