Australia: Two good to be true? - if and when is a second job acceptable?

Running a digital application (app) side-business or working a second job, in addition to working a nine-to-five job, is becoming increasingly common.

However, workers holding down a second job can in some circumstances impact a primary employer's business, especially if the worker is fatigued and unable to work safely, or if the job directly competes with the employer's business.

In such situations, workers may find themselves in hot water, with employers potentially having the right to exercise performance management or terminate employment. This article looks at the rights of employers and workers, and the actions that can be taken when a second job may be negatively impacting the primary employment, with reference to important cases handed down by the Fair Work Commission (FWC).

Fitness for work – Jacob v WAN

In 2016, the FWC held that West Australian Newspapers Ltd (WAN) did not unfairly dismiss Mr Jacob, a night-shift press foreman, who worked a second job as an Uber driver.1

Mr Jacob's employment contract with WAN included an express term that he was not to engage in other work without WAN's permission, but that such permission would not be unreasonably held.2 WAN also had a fitness-for-work procedure in place, which required that employees attending work not be adversely affected for any reason, including fatigue.3

After hearing rumours that Mr Jacob may have had a second job, WAN became concerned that this was affecting his fitness for work on night shifts and was a cause behind performance issues and increased personal leave days.

WAN started an investigation and requested Mr Jacob to submit a formal request to hold a second job (noting the hours he expected to work as a driver), so WAN could determine if it was reasonable and safe. Mr Jacob failed to submit the request and repeatedly denied he was working as an Uber driver. Following a show-cause process, Mr Jacob was dismissed with pay in lieu of notice.

The FWC held that WAN had a valid reason for dismissing Mr Jacob as it had undertaken an investigation and given repeated warnings that he had to be open and honest about his Uber driving, as well as opportunities to respond. The dismissal was held not to be harsh, unjust or unreasonable in the circumstances.

What are the risks?

A worker with two jobs is not necessarily a cause for concern. Many workers, known or unbeknownst to their primary employer, successfully engage in additional work.

However, a second job can give rise to genuine problems or risks for businesses and workers, when:

  • safety is affected because a worker performing safety-critical work is fatigued or distracted
  • through fatigue or distraction there is a decline in performance or production and/or an increase in absenteeism or tardiness, or
  • conflicts of interest, breaches of confidentiality and the misuse of physical and intellectual property occur.

Can employers 'control' workers' external activities?

Courts, commissions and tribunals have historically been reluctant to allow an employer to unnecessarily intrude into a worker's private life outside of work hours.

In Hivac v Park Royal Scientific Instruments Ltd [1946] CH 1694 Lord Green MR said that the law would not look to impose an obligation on workers that would prevent them from making more income during their spare time.

With that said, there are some actions that a business can reasonably and legally take in circumstances in which a second job is creating a genuine safety risk or performance issues.

Health and safety

In circumstances such as those in Jacobs v WAN, when an employer becomes concerned about a worker's ability to perform their work safely, they have an obligation under work health and safety laws to manage this risk.

Under the Work Health and Safety Act 2011 (Qld) (WHS Act) a person conducting a business or undertaking (PCBU) has a duty to ensure, so far as reasonably practicable, that workers and other persons are not exposed to health and safety risks arising from the business or undertaking.5

Safe Work Australia advises that:

"The duty on the person conducting the business or undertaking is not removed by a worker's ... willingness to work extra hours or to come to work when fatigued. The person conducting the business or undertaking should adopt risk management strategies to manage the risks of fatigue in these circumstances".6

While a PCBU cannot necessarily or reasonably be expected to control what a worker does in their own time, when at work a PCBU cannot ignore the safety risk a fatigued or distracted worker may pose. The PCBU has an obligation to develop strategies, including policies and procedures, to identify risks and put in place controls to eliminate or minimise the likelihood of harm.

Workers also have a duty under the WHS Act to take reasonable care of their own health and safety, and not adversely affect the health and safety of others.7 This includes:

  • taking responsibility for their own fitness for work and, when affected, advising their employer and not undertaking safety-critical tasks
  • complying and cooperating with any reasonable instruction, policy or procedure, including those relating to fitness for work.

In practice, this means any business concerned about the risks arising from a worker undertaking two jobs can and should:

  • Implement strategies, such as fitness-for-duty policies and procedures, aimed at identifying and controlling the risk arising from a worker who is fatigued or unfit for work. In circumstances in which fatigue is a likely hazard, such as night-shift work, these policies should include a direct requirement to disclose and/or seek approval to perform other work.
  • Consult, investigate and take disciplinary action if a worker fails to follow these policies or procedures and/or attends work fatigued or unfit to perform their job.

Performance

If a second job does not present a safety risk, fatigue or distraction may still affect a worker's performance or productivity.

If an employer suspects that performance is suffering as a result of a second job, the best course of action is to develop and implement performance management processes that include allowing the worker an opportunity to respond to allegations and improve, before taking disciplinary action or proceeding to termination.

Conflict of interest

In circumstances in which a worker's second job is for a direct competitor or within the same industry, it would be reasonable for an employer to be concerned about a conflict of interest.

However, if an employer wishes to address this issue through direction or termination, generally it must either establish a breach of an express clause of the employment agreement or a breach of an implied duty to act in good faith.

Implied duty

Whether a duty of good faith can be implied in an employment contract will depend on the specific facts and circumstances of each case.8 In considering whether having a second job breaches a worker's implied duty of good faith, it is not sufficient to merely establish that a worker is engaged in employment by a competitor.

The worker must be "guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer",9 and "an actual repugnance between his acts and his relationship must be found".10

In Bril v Rex Australia Ltd [2015] FWC 884,11 transport driver Mr Bril was forced to resign after his employer discovered he was working as a driver for another transport company during his annual leave. The FWC noted there was no actual conflict of interest arising from Mr Bril's work with a competitor, finding his dismissal was harsh, unjust and unreasonable. It said:

"Undertaking secondary employment which does not encroach on the primary employer's field of business does not contravene the implied contractual term of fidelity and good faith. Nor does the implied term impose any duty upon the employee to disclose secondary employment of this nature."

Express restraint clauses

A well-drafted non-compete clause in an employment agreement can be an effective way to prevent a worker from undertaking other work in direct competition with the employer's business.

In Pedley v IPMS Pty Ltd [2013] FWC 4282,12 Mr Pedley's contract of employment contained several express restraint clauses, including clauses preventing him from undertaking work, or providing advice or services to anybody that resulted in him competing with his primary employer (PVH). With the knowledge and consent of PVH, Mr Pedley was running his own business on the side, undertaking very similar work but on smaller projects (and not within the scope of PVH's business).

As part of advertising the expansion of his business to a full-time practice working on larger projects, he sent an email to a list of contacts, including some clients of PVH. Mr Pedley was immediately dismissed as a result of the email.

He subsequently commenced unfair dismissal proceedings in the FWC. The FWC upheld Mr Pedley's dismissal, stating he had breached the express terms of his employment contract, resulting in PVH losing confidence that he would promote their interests above his own.

It's about balance and communication

One of the best ways to balance business interests with the rights of workers is to ensure that everyone understands "if and when" a second job is acceptable. The most effective way to do this is through express contractual terms, policies and procedures tailored to the specific business and risk, and through ongoing consultation and disclosure between the worker and the business.

Strictly prohibiting secondary work is not always necessary and in some cases unlawful, so it is important to have risk management strategies in place that are appropriate to the business and its potential risks. Failure to identify and control risks that arise from fatigue or distraction (caused by a second job) can have catastrophic safety ramifications in high-risk workplaces. Strategies that encourage a worker to disclose when they are not fit for work—and provide controls, like rest areas— can be key in managing such consequences.

Footnotes

1 Jacob v West Australian Newspapers Ltd [2016] FWC 5382 (8 August 2016)

2Ibid at [8]

3Ibid at at [11]

4Hivac Limited v Park Royal Scientific Instruments limited [1946] CH 169 as cited by the Full Bench of the Fair Work Commission in Adidem Pty Ltd T/A The Body Shop v Nicole Suckling [2014] FWCFB 3611

5 WHS Act s19

6 Safe Work Australia, Guide for managing the risk of fatigue at work, page 3

7 WHS Act s28

8The question of whether a duty of good faith is generally implied by law into employment contracts is yet to be resolved. See Commonwealth Bank of Australia v Barker [2014] HCA 32 at [42]. See also Gramotnev v Queensland University of Technology [2015] QCA 127 and State of New South Wales v Shaw [2015] NSWCA 97 at [128-130]

9 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Starke and Evatt JJ at 74, as cited by the Full Bench of the Fair Work Commission in Adidem Pty Ltd T/A The Body Shop v Nicole Suckling [2014] FWCFB 3611 at [44]

10Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Dixon and McTiernan JJ at 81-82, as cited by the Full Bench of the Fair Work Commission in Adidem Pty Ltd T/A The Body Shop v Nicole Suckling [2014] FWCFB 3611 at [44]

11 Jim Bril v Rex Australia Limited t/a K&K Glass [2015] FWC 884 at [56]

12 Bradford Pedley v IPMS Pty Ltd T/A Peckvonhartel [2013] FWC 4282

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.