Desk for Working

By Alexander Millman and Lindsay Carroll, NRA Legal

The Federal Circuit Court has rejected an Australia Post employee’s claim for almost $200,000 of unpaid entitlements, which he alleged he had accrued by working two jobs for his employer at the same time.

Judge McNab held that the two jobs were separate and distinct.

Lacson v Australian Postal Corporation [2018] FCCA 511 (8 March 2018)

The claim

In 2002, the Applicant, Mr Robert Lacson, was an employee of the Australian Postal Corporation (AusPost), commencing as a Postal Delivery Officer (PDO) at the Collingwood Post Office and working for three hours each morning.

In 2004, Mr Lacson started working as a Postal Services Officer (PSO) at AusPost’s Melbourne Parcel Facility in Sunshine West for four hours in the evening. He worked this job as well as his job as PDO.

Starting in 2010, Mr Lacson obtained more hours in his role as PDO, so that he was engaged in the two jobs on a daily basis:

  1. as PDO at Collingwood Post Office for 3-hours in the morning; and
  2. as PSO at Sunshine West Post Office for an evening shift extending 8 hours and 21 minutes.

When Mr Lacson performed the PDO work in the morning it did not typically attract any extra loadings.

When Mr Lacson worked hours in excess of his rostered hours in the PSO job at Sunshine West, he was paid the appropriate overtime rates and other penalties and loadings.

Mr Lacson claimed that his two jobs ought to be treated as one and that AusPost was required to calculate overtime based on the combined hours Mr Lacson worked across the two positions, PDO and PSO, in both locations (Collingwood and Sunshine West).

Thus creating an entitlement to overtime that would not otherwise exist, Mr Lacson claimed that AusPost owed him $197,322.32 in unpaid overtime and other entitlements.

The issue

Because Mr Lacsons’ two jobs were covered by the Enterprise Agreement, the Court had to determine whether either:

  1. there were two separate contracts of employment (i.e. 2 separate jobs); or
  2. both of Mr Lacson’s jobs were simply different sets of duties under the same contract of employment (i.e. one job).

The outcome

Judge McNab sided with the employer on the basis that Mr Lacson’s jobs were:

  1. physically separated by a distance of 16 kilometres;
  2. on opposite sides of the Melbourne CBD;
  3. constituted distinctly different duties described in the relevant Agreement; and
  4. the employer had, for an extended time, paid Mr Lacson for each job on separate pay slips and under separate employee numbers.

Mr Lacson’s hours of work in one job were completely independent of his hours of work in the other.

As such, Mr Lacson was not entitled to join the two jobs together to calculate his monetary entitlements.

What this means for you

This case clarifies that if an employee requests to work across more than one position within the business, or you are inclined to offer a high-performing employee more hours across multiple positions in order to retain them or reduce your training costs, it is possible to manage the risk of an underpayment claim.

Where previously the risk of employees claiming additional overtime and other entitlements was too great, this case sets a precedent for employers to engage the same employee in multiple roles under different contracts of employment.

Notwithstanding this, it is important for employers to consider each scenario on a case-by-case basis so please contact NRA Legal on 1800 RETAIL (738 245) for tailored advice.