In response to ongoing labour shortages, many employers are looking for innovative ways to fill vacant positions. One option to consider may be to appoint an employee to more than one position with the same employer (often referred to as dual employment).
Dual employment can be an attractive recruitment and retention tool when an employer is having difficulty recruiting and retaining staff for positions, particularly where existing staff who are already familiar with the organisation are seeking more hours of work and are willing to accept a second job with the same employer.
Dual employment may also reduce some overhead costs such as training and providing company property (e.g. computers, phones etc.).
Is dual employment allowed?
Dual employment is permitted under the Fair Work Act 2009 (Cth) (Act), provided:
- each role is separate and distinct from the other; and
- the applicable enterprise agreement or award, is capable of applying to each “particular employment” (i.e. each job) separately and does not otherwise prevent dual employment.
Dual employment arrangements can be complex, and employment contracts and payroll systems need to be set up to:
- ensure the two jobs are treated separately and can be easily distinguished;
- safeguard against potential underpayment claims (e.g. for unpaid overtime, rest breaks and meal allowances); and
- mitigate against potential future disagreements about the dual engagement arrangements.
The importance of appropriately documenting and setting-up dual employment arrangements on payroll systems was highlighted in two recent Federal Court cases discussed below.
Recent case law
In a case involving the Mornington Peninsula Shire Council [1] an employee was dually employed as a casual Fitness Instructor and part-time Customer Service Officer. The employee commenced legal action after their employment ended claiming that their casual and part-time positions had merged, and seeking nearly $120,000 in unpaid overtime on all hours worked across both jobs.
Similarly in another case involving Australia Post,[2] an employee was dually employed in two part-time positions (Postal Delivery Officer and Postal Sorting Officer). The roles were at separate locations and paid at different hourly rates. The employee also had two employee numbers on its payroll system, was provided separate payslips for each job and had significant breaks between performing the two jobs. The employee subsequently claimed both jobs should be treated as one and the hours of work across both jobs calculated cumulatively. The employee commenced court proceedings claiming nearly $200,000 in unpaid entitlements (overtime, rest break and meal allowances).
In both cases, the employers had taken steps to distinguish the dual employment arrangements and had provided supporting contractual documentation asserting this (including separate employment contracts and/or payslips).
As a result, the Federal Court considered both employees were engaged in separate employment when performing two roles, and dismissed the claims.
What does this mean for employers?
While it is permissible under the Act to have an individual engaged in dual employment, this is not without legal risk.
It is important that each role is separate and distinct from the other, both in a legal and practical sense. Careful consideration should be taken when implementing dual employment arrangements, including when drafting employment contracts, to safeguard against costly claims.
If dual employment arrangements are an option you would like to consider for your organisation, please get in touch with the HR Legal team.
[1] Kroeger v Mornington Peninsula Shire Council [2019] FCCA 2313
