Engaging the same worker for multiple roles across an organisation has undeniable benefits for the employer, including benefiting from the worker’s pre-existing knowledge and experience in the organisation, and familiarity with their work ethic and skills. However, employers should be mindful of the risks where these arrangements are not executed carefully.
The number and prevalence of people working multiple jobs has increased steadily since the onset of the COVID-19 pandemic. Between 1995 and 2019, the multiple job-holding rate was between 5.0% and 6.0%, and following the large decline during COVID, rose to 6.7% at March 2024.1 Workers in the community and personal service industry as well as the administrative and support service industry are the most likely to be multiple job-holders.2 It also appears common for multiple job-holders’ second job to be in the same industry as their main job. For example, most female multiple job-holders whose main job is in health care and social assistance also have their second job in Health care and social assistance.3
Where a worker’s second job is with the same employer, this can have more onerous and complex implications for the employer. The question arises as to whether the employer needs to consider both jobs together when making decisions around rostering, maximum hours of work, overtime payments and other employee entitlements, or whether each job can be considered in isolation. This question was considered in the Federal Court decision of Lacson v Australian Postal Corporation (AusPost),4 discussed below, with the principles reaffirmed in Kroeger v Mornington Peninsula Shire Council.5
Case summary: Applying the words “particular employment”
In Lacson v AusPost, the Court considered the question of whether the work performed by Lacson for AusPost at two different locations, at two different times, and in the performance of two different sets of duties should, for the purposes of the relevant enterprise agreement, be seen as a single employment for the purposes of section 52(2) of the Fair Work Act (Act).6 Section 52(2) states that “a reference… to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.”
Lacson worked three hours per day until 9:00am in his Postal Delivery Officer role. He would then commence his Postal Services Officer role from 3.00pm until 7.30pm. In or around 2010, Lacson obtained further hours in his Postal Services Officer role such that he continued working from 7.30pm until 11.21pm. He would then start his Postal Delivery Officer role the next morning at 6.00am.
Lacson’s claims included that:
- because he received less than 10 hours’ rest between shifts, he should have been paid penalty rates in accordance with the enterprise agreement; and
- that the calculation of overtime on the Postal Services Officer shifts should have accounted for the three hours worked in the morning in the Postal Delivery Officer role.
There was no dispute between the parties that both roles fell within the relevant AusPost enterprise agreement (albeit under separate classifications and pay rates). Another relevant factor included that pay for both roles was initially recorded on a single payslip, however in August 2010, AusPost changed its payroll system and Lacson subsequently received separate payslips for his Postal Delivery Officer and Postal Services Officer roles.
The issue in question
The main issue for decision by the Court was the application of the words “particular employment” within section 52(2) of the Act. If both of Lacson’s roles together formed one “particular employment”, then he would be entitled to the overtime and penalty rates sought. However, if each role referred to a separate instance of employment, then he would not be entitled to these payments as each role would be siloed for the purposes of the enterprise agreement.
Notably, the Court was satisfied that the word “employment” referred to the act of contracting to employ a person, whereas “particular employment” referred to the job the person performs because of that contract.
The decision
The Court found in favour of AusPost, holding that each role held by Lacson was a separate and distinct employment, and therefore the entitlements under the enterprise agreement applied separately to each role. As a result, AusPost were not required to make the additional payments for overtime and penalty rates requested by Lacson. The Court’s rationale included that:
- Performing two different jobs with the same employer was a decision made by Lacson, and not a conscious attempt by AusPost to avoid its obligations under the enterprise agreement.
- AusPost did not represent to Lacson that the jobs would be treated as one, or that he would secure the considerable additional sums of money that he was seeking.
- Lacson had been offered, and accepted, two separate and distinct employment contracts, for each role. Each contract outlined the terms and conditions of the distinct role.
- From 2010, Lacson received two separate payslips, for each role.
- Each role was distinct in the sense that they were at different locations and involved different duties and responsibilities.
What this means for employers who have employees with multiple roles
It is open to employers to engage employees in different roles in the employer’s enterprise; this is not new. However, employers may also be able to treat each engagement separately for the purposes of entitlements under an applicable enterprise agreement (or modern award).7 Where each role is clearly separate and distinct, employers will not need to consider both roles together when calculating entitlements such as overtime, rest break penalties and meal allowances (unless an applicable enterprise agreement or modern award provides otherwise).
However, employers should remain mindful of their OH&S obligations to employees, employees’ physical and mental wellbeing, as well as how rostering may impact productivity and efficiency.
Steps that employers can follow to maintain separation and distinction between roles include:
- Providing the employee with a separate employment agreement for each role, ensuring that the duties and responsibilities under each role are materially different.
- Communicating to employees that each role will be treated as a distinct engagement, for the purposes of the relevant enterprise agreement or modern award.
- Providing employees with separate payslips for each role.
- Maintaining different employee numbers for each role.
- Taking care not to roster each role with overlaps in shift times.
By taking the steps above, employers can successfully manage multiple-job holders, while mitigating against issues relating to underpayments, termination of engagements and other employment considerations.
Below are some examples of employees with multiple roles and how an employer should manage their employment.
Example 1: The school teacher and football coach
Sherrin Secondary School employs Sarah as an English and Health Teacher. The School knows that Sarah was an amateur football player, and asks her if she would like to take on an additional role as the School’s Football Coach. Sarah is provided with a separate contract of employment outlining her duties as Coach which include organising training sessions, selecting and managing the team, and ensuring the safety of students during training and games. She is rostered to perform her Coach role after school hours and on weekends, and she is provided with a separate payslip for her hours worked. Sarah’s roles would likely be viewed as distinct and separate, for the purposes of entitlements under the applicable enterprise agreement that covers both roles.
Example 2: The disability support worker and driver
Greenway Care Services employs John as a disability support worker. However, he is sometimes asked to also act as a driver, driving patients to appointments. He has only received one employment agreement for the disability support worker role, however his enterprise agreement also covers drivers.
Whether he is required to drive patient transport depends on the availability of other drivers on the day. Because of this, Greenway does not roster him separately for each role. John is not provided with separate payslips, however his hours and payments for each role are set out in the payslip. It is unlikely that John’s roles as a disability support worker and driver would be viewed as sufficiently distinct and separate, and so Greenway should be treating both roles as one for the purposes of his entitlements.
How we can help
Our Workplace Relations team can provide you with practical advice and guidance on lawfully engaging employees under multiple jobs within your organisation, to ensure you are meeting your obligations under the Fair Work Act and relevant industrial instruments, and mitigating against the risk of underpayment claims. We can assist with reviewing and drafting employment contracts and position descriptions, as well as providing advice on your obligations under industrial instruments, including any specific requirements where an employee performs multiple jobs within the organisation.
Contact us
Please contact us for more detailed and tailored help.
Subscribe to our email updates and receive our articles directly in your inbox.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
1Australian Bureau of Statistics, Multiple job-holders, ABS website (accessed 22 July 2024) https://www.abs.gov.au/statistics/labour/jobs/multiple-job-holders/mar-2024
2Ibid.
3Ibid.
4[2019] FCA 51.
5[2019] FCCA 2313.
6Fair Work Act 2009 (Cth) s 52(2).
7Section 48 of the Fair Work Act contains a similar provision to section 52(2) regarding the terms of a modern award applying to each “particular employment”.