What if workers want to drive an Uber or post to OnlyFans in their downtime?

WRITTEN BY John Wilson & Kieran Pender

A British judge once observed that the law should be wary to impose restrictions on workers outside the hours of their employment, “the real effect of which would be to prevent him utilising his spare time.”

A worker, the judge Lord Wilfred Greene mused, “is paid for 5.5 days in the week. The rest of the week is his own.”

In the subsequent decades, the workplace landscape has changed – thankfully, the ordinary work week is now only five days.

But the concern animating Greene, of employers imposing burdens on employees in their private time, has not dissipated. Indeed, in the current era of rising costs of living, the observation is particularly salient.

Many employees are responding to inflation and slow wage growth by seeking secondary employment, raising the important question: to what extent can their primary employee prohibit or limit remunerated outside activity?

The issue is particularly acute in the public sector context, where external employment and perceived conflicts of interest are highly regulated.

So if public servants are contemplating picking up shifts as Uber drivers, supermarket shelf-stackers or even undertaking voluntary work, they would be well-advised to first consider the issues addressed in this article.

At a federal level, the starting point is the APS Code of Conduct in the Public Service Act. This requires public servants to “act with care and diligence” and “take reasonable steps to avoid any conflict of interest”, among other obligations.

The Australian Public Service Commission recommends that agencies develop specific conflict of interest and secondary employment policies, which many departments have done – typically requiring express permission.

In other public services, there is even stricter regulation; NSW prohibits external paid work without permission, as does the ACT (for senior public servants).

Absent an express policy, it is arguable that secondary employment with absolutely no nexus to the primary employment might not require permission.

It is hard to see any conflict of interest in an APS4 at the Treasury working as an Uber driver on the weekend.

But we would always recommend seeking permission rather than forgiveness; the APS Code of Conduct process is not anyone’s idea of fun. If in doubt, seek permission or declare on a conflict of interest form.

The Merit Protection Commissioner’s guidance notes that conflicts often arise when employees undertake “other employment which may compromise perceptions of the employee’s impartiality or otherwise create a risk to the agency’s reputation.”

The relevant test, the commissioner stresses, is “not whether the employee considers they have a conflict of interest but whether a reasonable observer would consider it likely that the employee’s judgement would be affected by their personal interest.”

The latest State of the Service report indicated that 36 public servants had been investigated for breaches of the code relating to conflict of interests in the prior 12 months, with 31 found to have breached the obligation.

A case study from the commissioner is instructive. The relevant agency had a policy permitting secondary employment in certain circumstances, but for a particular employee it was alleged a conflict had arisen due to the overlap between the agency’s work and the external work.

A subsequent audit revealed that the employee had sent and received over 2,000 emails relating to the secondary employment on their APS computer, and used printing and other Commonwealth resources. The employee had also undertaken their secondary employment during APS work hours, including while on sick leave, notwithstanding an “abundance” of agency work to complete.

The employee was sanctioned, and the sanction was upheld on review by the commissioner.

That example may be somewhat obvious – it probably goes without saying that undertaking external work on an APS laptop during work hours is inappropriate. But less problematic cases may still give rise to employment concerns, particularly where not disclosed.

Although not a public sector case, a 2016 Fair Work Commission decision, Jacob v West Australian Newspapers, provides an interesting example.

The applicant, a newspaper production operator, had been dismissed after it came to light that he had been moonlighting as an Uber driver (somewhat unfortunately, Mr Jacob had picked up a company manager while working for the rideshare app).

Mr Jacob had not sought permission for secondary employment, despite an explicit clause in his contract (motivated, so the clause said, by “health and safety concerns holding a second job may cause”), and was dishonest during the investigation process. The Fair Work Commission held that the dismissal was not unfair.

Jacob is an unusual case, in that Mr Jacob was uncooperative and defensive during the investigation process, and rejected his employer’s overtures to “regularise” the situation by applying for permission to continue secondary employment.

s the commission noted, “Mr Jacob in this case was very much the architect of his own demise.” But it also highlights the wider difficulties at stake: what is the difference between Mr Jacob driving for Uber in his own time, playing rugby or going rock climbing?

Why, if “health and safety” is the prime motivator, should an employer be able to regulate the former but not the latter activities?

As the British judge warned many decades ago, the law and the courts should guard against undue employer encroachment on employee’s private lives.

Where employers have a legitimate interest, some regulation may be necessary: it would be highly inappropriate for a public sector procurement officer to moonlight as a consultant for companies seek to sell services to the government.

But where there is no nexus, controlling an employee’s activities in their private life raises real concerns.

A recent case in NSW offers another example, with the nursing regulatory body warning nurses against using the content-subscription platform OnlyFans – a site often used for uploading adult images.

In our view, if an employee wants to drive an Uber or sell their risqué selfies online, in their own time, in most circumstances the law should not allow their employer to prevent it (the situation might be different for senior management, say).

However, there is a difference between what the law should (and potentially might) be and how APS managers could choose to enforce it through code-of-conduct proceedings.

This is particularly so, given the predilection of such managers to use the catch-all code requirement that a public servant “at all times behave in a way that upholds the APS values and employment principles, and the integrity and good reputation of the employee’s agency and the APS”.

Whatever form of secondary employment a public servant seeks to undertake, we would recommend they seek permission first. And if an agency wants to prevent public servant from secondary work (be it Uber or OnlyFans), we await the test case to consider whether they have the power to do so

The above article was written for and published in the Canberra Times.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

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