Entitlement to two jobs is not cumulative

The Fair Work Commission (the Commission) has recently rejected a postal worker’s (the Applicant) claim for over $200,000 in alleged underpayments relating to overtime, rest relief and meal allowances (the Entitlements) throughout the course of his employment with Australia Post (the Respondent). The Applicant worked as both a Postal Delivery Officer (PDO) and Postal Services Officer (PSO) for the Respondent (the Roles). The issue before the court was whether the Respondent correctly treated the two roles as separate when calculating the Entitlements owed to the Applicant.

In its submission, the Applicant argued that the Roles should be combined and the Entitlements calculated cumulatively as neither agreement provided for multi-hiring arrangements. The Respondent contended that the Roles were distinct, with separate agreements under separate employment contracts which therefore warrants separate treatment of the Entitlements.

Court’s decision on multi-hiring

In its decision the Commission relied upon ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53 (ALDI Foods Pty Limited) in which the High Court’s analysis of Section 52(2) of the Fair Work Act 2009 (Cth) (FW Act) led to the interpretation that enterprise agreements apply to an employee’s “particular employment” under a particular enterprise agreement.

This interpretation was supported by the explanatory memorandum of the Fair Work Bill 2009 which reads:

“[i]f a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on the employees’ entitlements in relation to each job.”

Adopting this construction of “particular employment” the Commission found that the Applicant had two separate and distinct part-time positions with the Respondent. The Respondent was found to have correctly calculated the Entitlements on the basis that there were two distinct employments, which is authorised by section 52(2) of the FW Act.

Subsequently, Judge McNab concluded:

The respondent is not in breach of the enterprise agreement in failing to aggregate the hours worked in each position occupied by the applicant. Accordingly, I dismiss the application.”

This case offers an important distinction for employers when calculating entitlements for employees who are engaged in multiple and/or separate roles. Misclassification in this instance would have cost the employer over $200,000 in overpayment. If you have any questions relating to multi-hiring arrangements, please contact Nick Stevens or Isabella Paganin.

Share Button