On 1 February 2019, Mortimer J of the Federal Court of Australia was required to consider a relatively novel question: can two jobs with the same employer count as one for the purpose of a claim for entitlements under an enterprise agreement?
What were the facts of the case?
In 2001, Robert Lacson began employment on a fixed-term, casual basis with the Australian Postal Corporation ("Australia Post"), working as a Postal Delivery Officer at the Collingwood Post Office. Later that year, Lacson also obtained a separate, permanent, part-time position with Australia Post as a Postal Sorting Officer (later a Postal Services Officer), working out of the Port Melbourne Business Centre, which was located approximately 7km from the Collingwood Post Office.
In the following year, Lacson's employment as a Postal Delivery Officer was changed from a fixed-term, casual position, to a permanent, part-time position. Therefore, with effect from February 2002, Lacson held two separate, permanent, part-time roles with Australia Post. He would often work for three hours as a Postal Delivery Officer in the morning, before going home and returning to work as a Postal Services Officer in the evening.
Lacson had entered into two separate employment agreements with Australia Post regarding his employment as a Postal Delivery Officer and a Postal Services Officer, and his hourly rate of pay differed between both agreements. Initially, his pay for both roles was recorded on a single payslip and he was identified under a single personnel number. This changed in 2010, when Lacson was given a separate payslip and different personnel number for his "second job".
In 2010, the Australia Post Fair Work Agreement 2010 ("2010 Agreement") commenced, which was later superseded by the Australia Post Fair Work Agreement 2013 ("2013 Agreement"). It was clear that Lacson generally fell within the coverage of both Agreements.
Lacson claimed entitlements to overtime, rest relief and meal allowances in a four-year period between October 2010 and October 2014 under both the 2010 Agreement and the 2013 Agreement. He claimed that, in calculating his overtime entitlements for his role as a Postal Services Officer, Australia Post failed to take into consideration the 3 hours which he usually worked as a Postal Delivery Officer in the morning. Australia Post denied Lacson's claims and he commenced proceedings in the Federal Circuit Court. Judge McNab in the Federal Circuit Court eventually ruled in favour of Australia Post. Lacson appealed the decision.
What was the issue in question?
Subsection 52(2) of the Fair Work Act 2009 (Cth) ("Act") provides that a "reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to "particular employment""' (emphasis added).
The main issue in these proceedings concerned the meaning of "particular employment". If both of Lacson's roles as a Postal Delivery Officer and a Postal Services Officer could be treated together as one "particular employment", then he would be entitled to the overtime which he sought. If, however, "particular employment" in subsection 52(2) of the Act referred to each individual role which Lacson performed, then he would not be entitled to any additional overtime payments under the 2010 or 2013 Agreements.
What was decided?
Mortimer J dismissed Lacson's appeal, finding in favour of the employer, Australia Post. Her Honour found that "particular employment" in this context referred to each individual role which Lacson held with Australia Post and not his employment with Australia Post taken as a whole.
Of relevance to Mortimer J was the fact that the two roles performed by Lacson were distinct, and the separation of the two roles involved no conscious attempt by Australia Post to avoid obligations under an enterprise agreement. To this effect, Mortimer J provided the following summary:
"That the appellant found himself performing two different jobs, at two different locations, with two different kinds of work, for one employer, was a function of choices he had made. It does not appear he made those choices believing, or having it represented to him, that they would be treated as one job and he should secure the considerable additional sums of money he is now seeking. Rather, he appears to have made those choices on the basis… that he had two separate employment arrangements with Australia Post, each one regulated separately by the enterprise agreements".
Her Honour further highlighted that Lacson had been "offered and accepted two, genuine, part-time jobs: there was no contrivance about the circumstances, nor any evidence Australia Post [had] sought to avoid or minimise its obligations under the 2010 and 2013 enterprise agreements. … [T]here was no conduct that could be described as Australia Post attempting to contract out of its obligations".
What are the takeaways from this case?
The main takeaway from this case is that an employee who is employed under two separate agreements with the same company can be treated as having two separate jobs for the purposes of an enterprise agreement and subsection 52(2) of the Act. However, it is important to examine the specific facts of each case.
What is of paramount importance in this case is that the employee had two separate jobs under two separate agreements with the same employer, and the employer never represented to the employee that he only had one combined job with Australia Post. Employers should take care, where they have employees performing more than one role, to examine the facts and ensure that they do not treat clearly separate roles as one combined role.
Conversely, an employer cannot avoid the payment of overtime, or otherwise reduce its obligations under an enterprise agreement, by splitting what would otherwise be one role into two roles. If there had been evidence of this type of contrivance in this case, it is likely that the decision would have been in favour of the employee.
Also of importance is that the fact that, while the employee in this case was given a "combined" payslip, and for an extended period only had a single personnel number, this did not automatically mean that the two roles constituted a single employment for the purposes of the enterprise agreements and subsection 52(2) of the Fair Work Act.