Two different awards — same employer

Q&A

Two different awards — same employer

Can an employee be employed in two different jobs under two different awards with the same employer, thus avoiding overtime penalties?

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Can an employee be employed in two different jobs under two different awards with the same employer, thus avoiding overtime penalties?

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Q  Our company recently advertised internally a cleaner’s position, for working in the buildings in our administrative area. An employee in our production area has applied for the position, as he is engaged to be married and wants the extra wages to help cover the wedding expenses. The company is quite amenable to his request; however, we would not employ him if it meant the payment of overtime penalties, because the employee would have already worked a 38-hour week in our production area. The cleaning duties would also be covered under a different modern award from his work in the production area.
 
A  Where an employee is employed outside his/her ordinary hours and that work is covered by a different award from that which covers his/her normal employment, the important factor is whether the employee was instructed by the employer to perform this after-hours work or, in this case, whether such work was undertaken voluntarily by the employee as a new and separate engagement.
 
Where the after-hours work is entered into by the employee voluntarily, such arrangement is regarded as a new engagement and would be entitled to payment at the ordinary rate under the award covering such work, unless the award required payment of the overtime rate by reason of the times at which the work was performed, irrespective of whether the total hours worked by the employee exceed the total ordinary hours (38) for the week. See: Queensland Independent Education Union v Morton Bay College [2002] QIRComm 175.

These principles do not apply in the case of work performed under different awards during the employee’s ordinary working hours. In that circumstance, the principle to be applied relates to the so-called ‘principal purpose test’ during the period of engagement. This means an employee cannot be employed under two separate modern awards concurrently with respect to their ordinary hours of work — the award covering the major and substantial function of the employee will apply.
 


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