An employee who already has a full-time or part-time job in your business may be keen to earn some extra income, so they apply for a casual job within the company. For example, the permanent job is a daytime office job, and the casual one is as a cleaner at weekends. What steps should you take next?

Would this scenario be considered a single employment contract, and therefore the hours worked combined to attract overtime and penalty rate payments? Or could there be two separate employment contracts? 
 

Issues to consider 

Industrial relations courts and tribunals have generally determined that it is possible to have two separate contracts of employment with the same employer and employee. However, several factors need to be considered by the employer in each circumstance. 

Factors that may be considered relevant to this issue are: 

  • Was the arrangement initiated at the employee’s request? If not, there is a risk of the perception that the employer pressured the employee to “agree” to take on the second job. 
  • Does the work performed under the second contract of employment interfere with the performance of work under the first contract of employment? This could be an issue, potentially, if the employee is directed to perform overtime work in relation to the permanent job. 
  • Are the duties being performed under the different contracts distinctly different in nature? In the example above, they are, but two clerical jobs might not be.  


Overtime issue 

The suspicion such an arrangement raises with a court or tribunal is that the employer is attempting to circumvent the overtime provisions of the applicable modern award or enterprise agreement. Hence, importance is placed on the employee voluntarily requesting the second job. 
 

Separate employment contracts needed 


There should also be a separate employment contract drafted that applies to the second casual job, referencing the relevant modern award (or a separate classification under the same modern award) that governs its duties.