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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.