What’s the story with side hustles?

Planning to earn a bit on the side? We consider the question of other work, disclosure clauses and employer consent.

From time to time, members contact the union seeking advice regarding a term in their written contract requiring that they disclose any “secondary” employment or obtain permission from the employer or principal before engaging in such employment. A typical term can look something like this:

“You will not engage in other paid work, business or activities without the written consent of the Employer.”

While this type of contractual term is not unlawful, it does not provide an employer with an unqualified right to refuse permission to engage in outside work. For this reason, some contractual clauses properly acknowledge that “The Employer will not unreasonably withhold such consent”.

Fidelity and conflict of interest

All employment contracts, written and unwritten, contain implied duties of fidelity (good faith) and loyalty, that are owed by employees to their employer. Stemming from these are obligations to ensure an employee does not conduct themselves in a way that creates a conflict with such duties.

In general, industry conflicts arise when an employee engages in work with a direct competitor, or establishes and operates a business that itself directly competes with the employer. These types of conflicts don’t typically arise in relation to school-based education.

Using your own time

Those duties and obligations are necessarily balanced against an employee’s right to use their time outside of work productively and must also be considered in light of public policy (and legislation) that prohibits unreasonable restraints on trade.

A teacher managing the books in a family business, or conducting an online retail business, would rarely entitle an employer to withhold consent. What members in these situations need to be more careful about is ensuring they don’t conduct any outside work or business during their normal school work time.

A potential conflict might arise where a teacher takes outside employment with a tutoring company or sets up their own tutoring business. In such cases a school employer might stipulate that the teacher is not to take on clients who are students at the school (even where they may not be in the teacher’s classes). However, it would usually be unreasonable to prevent the teacher from providing paid tuition generally.

Casuals and part timers

The situation is more complicated now that a greater proportion of today’s workforce is engaged on a casual or part time basis, and questions arise as to who is the primary employer and who is secondary. It would be unreasonable for a school to prevent a part time or casual teacher from working for another school employer, unless there exists some clear and compelling argument that the other employment would create a real and tangible conflict of duty.

Members can be required to disclose outside employment or paid business engagements but should expect that their employer will not unreasonably withhold consent to such engagements. Members would be well advised to obtain any required consent or approval in writing, and the union can provide assistance in instances where consent is unreasonably withheld.