News 12 September 2019

Consecutive shifts in different roles does not amount to overtime

The Federal Circuit Court (the Court) has rejected an employee’s claim to overtime allegedly accrued as a result of performing two jobs with the same employer. The employee argued working consecutive shifts in different jobs created an entitlement to overtime rates for the cumulative hours worked.

Overview of the facts

The employee had been engaged as a fitness instructor on a casual basis since 1994. In 2004, the employee also accepted a part-time role as a customer service officer. Each role was performed at a different work site.

One of the worksites closed in 2016. After the closure, the employee performed both roles at the same site. The employee claimed at this point the roles “merged”. The employee said it wasn’t unusual to complete a shift in one role and immediately commence the other, with only a short break, or no break between shifts.

The employee calculated that from 2011 the unpaid overtime owed amounted to $119.074.36.

The Decision

The judge considered the claim had not been made with “sufficient precision”, given the employee originally indicated overtime was owed from as early as 2011, but then revised the claim to overtime accrued from 2016 (being when the employee argued the roles “merged”). The judge also noted the employee originally sought to recover sums which extended beyond the six year statutory threshold for an underpayments claim.

The principal issue considered was whether the two roles were separate and distinct. In making its decision the judge took in to consideration: the employee had a separate contract of employment for each role; the employee’s initial engagement in the second role was described as an “additional position” in the letter of offer; and the positions were clearly classified as separate positions in the organisation’s enterprise agreements.

The judge also noted, despite the employee’s claim the roles merged, the employee rarely worked consecutive shifts. Further, when the employee did work consecutive shifts, it was clear the employee was “performing work within the scope of one job or the other”.

The judge was satisfied the jobs were separate and distinct and dismissed the claim. No overtime payments were owed to the employee.

Lessons for employers

While in this case the Court found in favour of the employer, businesses should be wary of the terms of employment for employees working in different roles, and ensure all positions are correctly classified according to the award or industrial instrument that covers them.

Employers also need to be mindful of the duty of care they owe to all employees when entering in to such arrangements or rostering employees to work.

How we can assist

If you would like to gain a better understanding of the wide and ever increasing range of laws relating to equal opportunity, industrial relations, worker’s compensation and occupational health and safety attend our Employment Law: A Practical Perspective course. This program will provide practical strategies and advice to help ensure your business meets its workplace responsibilities.

Written by Janet Watt, Graduate Workplace Relations Advice Line Advisor

[2019] FCCA 2313

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