Moon­light­ing employ­ees it can be dif­fi­cult to stop

In Brief

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 work. 

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.