What is “employment shaping”?
Employment shaping is the intentional insertion into a work relationship of “points of discontinuity” in order to bring about legally separate employment relationships.
Points of discontinuity may be introduced with respect to:
- the identity of the employer
Example: related entities might enter into two separate employment contracts with the same employee to do essentially the same type of work.
- the contractual relationship
Example: an employer might attempt to terminate and re-engage on a succession of “roll-over” employment contracts.
- the type of work being done
Example: A worker might have a regular job as a receptionist at a hotel but occasionally do casual shifts as a waiter in the dining room.
- the work status of the worker
Example: A worker might sometimes be working as an employee, sometimes as a volunteer, and sometimes as an independent contractor for the one organisation. For example a doctor might be employed by a hospital in Accident & Emergency; be engaged on a sessional basis as an independent contractor in surgery; and volunteer to conduct clinical training or research.
In each of these examples the point of discontinuity gives shape to a separately definable work relationship or “job”.
How can it work?
Employment shaping can work because the employment relationship is contractual and mostly exists only between one employer and one employee. Changes in the contractual relationship, or the introduction of a new employer party might be used to create a point of discontinuity. Also, in cases where different types of work are governed by different Awards and industrial instruments, it might make sense to create separate employment relationships in respect of the work even though the parties to those relationships are the same.
Are there any other names for it?
“Concurrent employment” can be a form of employment shaping. That is where one employee works in two separate employment relationships at once.
“Multiple-hiring” is an expression that is sometimes used when the same employee is employed in separate jobs for the same employer.
Is it common?
It is common in some settings where workers and employers have the flexibility to shape patterns of work in this way. It is well recognised in tertiary academic employment, where appointments are often for short periods or courses and where appointments may be in different faculties or schools within the same tertiary institution. It may be common in some labour-hire settings, where a labour-hire worker may undertake numerous short assignments of different types with many different clients.
What issues arise?
Issues arise about hours and overtime payments such as whether hours spent in one “job” should be added to hours spent in another “job” with the same employer when counting the number of hours worked within any given period and the amount of any relevant overtime payment.
Issues often arise around service based entitlements such as leave, redundancy pay,and termination notice such as whether service in one “job” should be aggregated with service in another to establish length of continuity.
Where the employer is the same person, issues may arise about whether misconduct in one employment carries over into another employment.
Sometimes issues arise about the status of the worker between jobs.
When a worker is injured in one job, issues sometimes arise about whether the employer in respect of that job has to compensate the worker for wages lost in a job held concurrently – sometimes even with another employer.
Is it legal?
It can be, if done properly; but it is likely to be illegal if it is an attempt to evade employment obligations. There would be a significant risk in trying to create separate employment relationships, where there are only two parties involved and all the work is governed by only one Award. In that situation, an inference might be drawn that the “shaping” was an attempt to avoid paying entitlements that would be due if there were one continuous employment.
How is it managed?
It is most usually managed by being clear in the contract about when an employment relationship is created; when it begins; when it ends and whether any job held concurrently is part of the same employment.
As an example, a clause might say:
“Each occasion that you accept an offer to work on an Assignment will be a separate contract of employment, which ceases at the end of the employment to which the contract relates.”
Sometimes, “master” or “standing offer” agreements with labour-hire workers provide that their employment does not cease at the end of an assignment. They may thus continue to be employed concurrently with other employment even though they are not doing any actual work in one or the other of the employments in which they are engaged.
What should an advisor do in case of a potential employment shaping scenario?
Where aspects of employment suggest that there has been some degree of shaping, it is important to be aware of the types of issues that it is likely to produce.
Check to see how it is documented. What is in the employment contract/s? Do they provide an accurate reflection of the true work relationship?
Check to see what employment entitlements would arise if the work relationship were treated as one continuous employment. How do they compare with the entitlements that the worker is receiving under the “shaped” scenario? If there is a shortfall, what is the rationale or justification for it? Is the rationale or justification maintainable? If not, you may need to reconfigure the work relationship to allow for proper entitlements.
Andrew C. Wood