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The Federal Circuit Court has recently issued a decision that may change your current multi-hiring practices.

In March 2018, the Federal Circuit Court issued a decision which provided a useful analysis on the ability to multi-hire a single employee working in two different jobs under the same industrial instrument (such as an award or an enterprise agreement).  If your organisation is using multi-hire practices, you should seek advice about whether this decision affects you.

In Lacson v Australian Postal Corporation,1 McNab J held that the definition of ‘particular employment’ in section 52(2) of the Fair Work Act 2009 (Cth) should be read synonymously with ‘job’.  In this case His Honour found that an employee could be employed in two separate and distinct part-time jobs under the same enterprise agreement, providing there was a separate written contractual agreement for each, as they each constituted a separate ‘job’.

When considering the interaction between both part-time contracts, the court found that each should be treated separately. For example, the ordinary hours worked under each contract were not combined to determine entitlements to overtime.

It is important to note that in this case the employee’s two contracts were in two completely different job types, were to be worked at different locations, and were agreed approximately a year apart.  The ability to employ a single employee in two separate jobs should always be considered on a case-by-case basis.

Consideration must be given to both the nature of the work, the type of employment and the specific terms of the award/agreement that applies to the work.  Employers are encouraged to seek advice before making multi-hiring arrangements with employees to ensure that the arrangement does not create inadvertent consequences such as an underpayment or a breach of the award/enterprise agreement.

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1 [2018] FCCA 511

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