WRITTEN BY John Wilson & Kieran Pender
In the modern workplace, the idea of having one employer and a single role is increasingly unusual. The gig economy, the cost of living and the rise of workers wanting to pursue external hobbies has seen the proliferation of side hustles – employees pursuing additional work, whether motivated by pay or passion.
Side hustles come with employment law obligations. Following a recent Fair Work Commission decision, it is timely to consider how the law regulates employees pursuing additional employment or external professional obligations. This article will set out the legal context, before considering the additional complexities that arise for lawyers and public servants pursuing additional employment.
Context
The common law imposes on all employees a duty of loyalty and fidelity to their employer.[1] This has contractual underpinnings, as an implied term in the contract of employment, and, in certain circumstances, may also have an equity basis where employees owe a fiduciary duty to their employer. This duty prevents an employee acting contrary to their employer’s interests. However, the extent of the duty, particularly outside work hours, will vary depending on the nature of the role.
This tension, between protecting an employer’s interests and safeguarding the private lives of employees, was aptly summarised by Lord Greene MR in Hivac Limited v Park Royal Scientific Instruments Limited:
It has been said on many occasions that an employee owes a duty of fidelity to his employer. As a general proposition, that is indisputable. The practical difficulty in any given case is to find exactly how far that rather vague duty of fidelity extends. Prima facie it seems to me on considering the authorities and the arguments that it must be a question on the facts of each particular case. I can very well understand that the obligation of fidelity, which is an implied term of the contract, may extend very much further in the case of one class of employee than it does in others. For instance, when you are dealing, as we are dealing here, with mere manual workers whose job is to work five and a half days for their employer at a specific type of work and stop their work when the hour strikes, the obligation of fidelity may be one the operation of which will have a comparatively limited scope.
The law would, I think, be jealous of attempting to impose on a manual worker restrictions, the real effect of which would be to prevent him utilizing his spare time. He is paid for five and a half days in the week, the rest of the week is his own, and to impose upon man, in relation to the rest of the week, some kind of obligation which really would unreasonably tie his hands and prevent him adding to his weekly money during that time would, I think, be very undesirable. On the other hand, if one has employees of a different character, one may very well find that the obligation is of a different nature.[2]
Fortunately, the world of work has evolved beyond five-and-a-half-day work weeks. But this balancing act remains. Some employers deal with it through explicit contractual provisions, seeking to regulate secondary employment. Typically these require disclosure and approval, and limit secondary work where it causes a conflict of interest or health and safety risk to the employee. Even where an explicit secondary employment clause is missing, an employer could still rely on a general conflict of interest clause (commonplace as they are), or the implied duty.
But an employer’s contractual reach has limits. In the private sector, particularly, an employer’s ability to regulate out of hours is limited by the extent of its legitimate interest, as Lord Greene recognised. As Australian case law has famously recognised, ‘[a]n employee is entitled to a private life.’[3]
Recent Case Law
While the legal principles are well-settled, their application are very much case dependent. It is instructive, then, to look at a recent Fair Work Commission decision to see how these issues play out in practice.
In McGregor v The Trustee For The Eagle Twin Trust,[4] the Commission considered an unfair dismissal application made after the employee was dismissed for, the employer contended, the employee’s external business activities: ‘starting and operating a life coaching and counselling business, creating a website and various social media pages, as well as publishing an e-book on life coaching topics.’
Relevantly, Mr McGregor’s employment contract included performance standards requiring that he serve the employer ‘efficiently, faithfully and diligently’ and ‘[d]evote the whole of his time, attention and abilities exclusively to the business’.[5] It also contained a relatively standard conflict of interest clause, which prohibited ‘undertaking any other business or profession which competes with [the employer] or where the employee’s involvement would create a conflict of interest, either actual or potential.’ However, Mr McGregor contended that he had disclosed his external activities, such that they could be said to be ‘condoned’ by the employer.
This argument was rejected by the Commission, which found that the extent of Mr McGregor’s secondary business activities – which verged on activity in competition with his employer – had not been fully known or approved by the employer. Instead, the Commission accepted that the nature and extent of the activities constituted a breach of contract, giving a valid reason for dismissal.
This was particularly so given Mr McGregor was a relatively senior employee, at one point in his employment supervising 12 employees. Additionally, the specific contractual obligations were central to the Commission’s analysis. ‘It is at least arguable the exclusive attention obligation extended beyond normal business hours, particularly for a management employee,’ the Commission held. ‘The obligation to give the whole of his time, attention and abilities exclusively to Anteo would not require him to work 24 hours a day for Anteo. It would require that he not be distracted from giving his whole-time attention and abilities exclusively to Anteo by activities which he undertook outside normal working hours.’[6]
In McGregor the need for explicit disclosure, rather than passing mention, was also underscored. The employee sought to rely on the fact he had mentioned his external work in team meetings, and shared an e-book he had authored with his boss. While reading the book ‘may have implied the secondary career’, Commissioner Mark Perica held, that it ‘falls short of clear evidence’. This was particularly so when the employee’s covering email attaching the e-book had explicitly said ‘[t]here is no expectation of any sort e.g. reading it at all’; the Commission noted the email thereby ‘essentially said that [the supervisor] did not have to read it.’
In McGregor, then, the seniority of the employee, and the closeness of the external activity with the operations of the business, and the uncertain nature of attempted disclosure were all salient factors. These circumstances might instructively be contrasted with a hypothetical.
BAL Lawyers employs a number of excellent paralegals on a casual or part-time basis. Say one of those paralegals worked as a yoga instructor on the weekend, or a football referee. Provided that work was done out of hours, and did not cause health and safety risk (ie the work hours were not so substantial that, cumulatively with their employment with BAL Lawyers, they were overworked), it could hardly be said that BAL could seek to prevent that secondary employment. It might be reasonable for BAL to require disclosure, to manage workplace health and safety and conflict of interest risks – for example, to avoid the possibility that the yoga studio is a client of the firm. But absent such factors, BAL is unlikely to have the lawful authority to direct a paralegal not to referee or teach yoga on the weekend.
The above example hints at the additional nuance in the legal profession. Where the employee undertaking additional employment is a lawyer, there will be an extra gloss at play by virtue of the nature of legal practice. This gloss is at least threefold.
First, a solicitor wanting to pursue a side hustle must meet the conditions of their practising certificate. Different categories of certificates come with different conditions (which vary across jurisdictions); an in-house lawyer might not automatically be able to pick up some extra cash consulting in private practice, for example. Of particular salience in Canberra, some government solicitors do not have practising certificates but are deemed to be able to practice pursuant to federal legislation – that entitlement would no longer apply if they were freelancing in the private sector.
Second, and more substantively, a solicitor’s professional obligations of confidentiality and to avoid conflicts of interest may be engaged in the event of secondary employment. Where the side hustle intersects with a solicitor’s practice – say a property lawyer decides to moonlight as a real estate agent, or an employment lawyer starts a recruitment firm – there will be heightened risk of a conflict of interest.
Finally, all solicitors must remember that, above all, they are officers of the court. This has implications even when not acting in a legal capacity. As the NSW Law Society’s Professional Support Unit observed last year:
Whether you are acting in your capacity as a solicitor or as the founder of a new line of stationery products, you must not do anything that is likely, to a material degree, to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute, or that would demonstrate that you are not a fit and proper person to practise law.[7]
Federal public servants, whether lawyers or not, have additional obligations when it comes to secondary employment, by virtue of the APS Code of Conduct in the Public Service Act 1999 (Cth). This requires public servants to ‘act with care and diligence’ and ‘take reasonable steps to avoid any conflict of interest’, among other obligations.
Most federal agencies have developed specific conflict of interest policies, which typically deal with secondary employment. These usually require disclosure, and, if necessary, the development of a conflict of interest management plan. Other jurisdictions are even stricter: the NSW public sector prohibits external paid work without permission, as does the ACT (for senior public servants).
The rise of the side hustle is unlikely to go away. For some, it is an important source of additional income – all the more important in this time of rising fuel prices. For others, it is part of expanding their horizons, whether within the law (both authors of this column have taught law, in addition to their practice), or beyond. But secondary employment or entrepreneurial activity comes with risk.
Those risks are heightened for lawyers, given their professional obligations, and public servants, in light of the statutory context. As much was made clear by a recent article in the Canberra Times, which reported on a post on an online forum. ‘I recently joined the public sector and I am wondering how me doing stand up comedy (which I also post clips on my social media, along with skits) affects my employment,’ the anonymous public servant said. The individual expressed concern about whether they needed to advise their manager. ‘The only thing I can think of is that the comedy may be perceived as not acting professionally?’[8]
The public servant is right to be concerned – secondary employment is no laughing matter. The law has sought to balance the interests of employers with workers’ private to have a private life, and be a comedian, an Uber driver or a law tutor on the side. But our guidance is to always err on the side of caution – better to disclose, and manage risks with your employer, than spot your startled boss in the audience when you begin your stand-up set.
[1] Robb v Green [1895] 2 QB 315.
[2] [1946] All ER 350.
[3] Rose v Telstra Corporation Ltd [1998] AIRC 1592.
[4] [2026] FWC 345 (4 February 2026).
[5] Ibid [16].
[6] Ibid [130].
[7] Katherine Lau, ‘Can a solicitor have two jobs?’ Law Society Journal (24 February 2025, online) <https://lsj.com.au/articles/can-a-solicitor-have-two-jobs/>.
[8] Ray Athwal, and Dana Daniel, ‘“Prefer not to tell”: APS newbie’s anxious plea as side gig sparks code of conduct fear’ Canberra Times (30 March 2026, online) <https://www.canberratimes.com.au/story/9207260/public-eye-is-stand-up-comedy-a-breach-of-the-aps-code/>.
First published 9 September in the ACT Law Society Ethos Journal (Spring Edition) – “Ethos Journal – Issue 277 (Spring 2026)“.