There can be a number of particularly important reasons why
employers need to know whether an employee is working elsewhere and
also the nature of that work.
In a recent decision of the Fair Work Commission (Bril -v-
Rex Australia Limited), Vice President Hatcher found that the
implied duty of fidelity and good faith on the employee does not
extend to them disclosing to the employer what other secondary work
they are doing in their own time.
In this case, the employee took a week of annual leave to work
for a client as a driver. Notably, this was not the case of an
employee doing work for a competitor, nor was it the case where
there was a suspicion that confidential information would
necessarily be disclosed by that employee. Finally, there was no
evidence put to the FWC by the employer proving that - by the
employee working for a client for this week - it meant lost job
opportunity for the employee's primary employer.
There has always been a real risk with employees (particularly
undertaking manual work) carrying out secondary employment. When an
injury arises it is often very hard to identify on which of the
jobs it occurred. Often, employees for fear of having to expose
their other work – wherein they may being paid cash - will
make a claim on the primary employer.
Also, who wants staff members turning up at work at 7am after
they have been working until 1am in a nightclub or – worse
– all night as a security guard.
Significantly, in this case there was no clause in the contract
to say that the employee could not work elsewhere whilst he was
working for this particular company. Whether that clause would have
been enforceable is not clear but it would have put the employer in
a better position to terminate the worker or require him to cease
the other role. The clause could have been contrived on the basis
of protecting the employee's safety (i.e. a good night's
sleep, proper breaks etc – read: work health and safety)
making it more attractive to the FWC to enforce.
Interestingly, the FWC found – in this case - that the
employee did not have an obligation to divulge to the employer when
they were undertaking secondary work and the nature of that
Again, as it is so often the case when trying to curry favour
with the FWC, incorporate the requirement to disclose as part of
your work health and safety system. In our experience, the FWC (and
courts generally) are loathe to interfere with requirements imposed
by employers when they are cast as a (relatively legitimate) work
health and safety issue.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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