Dual Employment Gets Court OK

Having two jobs with the one employer has been a feature of a few enterprise agreements for decades, but it is largely unknown, and thought to be a bit risky. But a recent Federal Circuit Court decision has confirmed the legality of it, alleviating concerns about adopting the practice.

The case concerned a shire council employee who was originally engaged as a casual fitness instructor in 1994, then later, in 2004, as a part-time customer service officer as well. This dual employment arrangement continued for some time until the employee resigned in 2017. She then filed a claim for overtime and other relevant payments on the basis that she should have been paid as if she were working one job.

The employer argued that a full federal court case earlier in 2019 had well and truly established the legitimacy of dual employment and it had no case to answer. The employee countered that her case was different, especially since she worked back-to-back shifts, was at the same location and that some of the duties in the roles were identical, e.g. greeting customers. These key features distinguished her situation from the earlier case, and she argued the roles had merged.

But the court disagreed. While accepting there were differences between the two cases, there was clear evidence of two separate contracts of employment, two separate sets of duties, two different types of employment (one casual, one part-time permanent) and different pay rates and conditions.

In addition, when the employee commenced the part-time role, she was given a letter by the employer which explicitly said this was a “new employment position” and an “additional position”. As to the merging argument, the court said the relevant enterprise agreement contained both classifications listed separately. The actual duties that were the same were contemplated in those classifications and were peripheral to the core duties.

Multi-hire or dual employment is not new. It has several advantages for both employers and employees and is worthy of consideration in workplaces wherever there is a diversity of roles, especially those that don’t have onerous entry requirements. Wherever it has been included in agreements, it has been enthusiastically adopted by the parties, contributing to lower overall costs and enhanced incomes and job security.

Kroeger v Mornington Peninsula Shire Council [2019] FCCA 2313 (22 August 2019)