Most public servants know their ability to undertake external work while employed in the APS is constrained. The Public Service Commission advises that "agencies should develop policies about outside employment", and indicates that departments can require staff to seek permission before working outside the APS. Many departments have followed the commission's guidance, and forms titled "request for outside employment" or similar abound.
Yet the ability of the Commonwealth – or any employer – to intrude into employees' private lives is limited. How, then, can the Australian Public Service seek to restrict public servants' ability to work second jobs in their own time?
Public service employment at the federal level is governed predominantly by the Public Service Act and Public Service Regulations. Neither contains any express provision about outside employment. Instead, the Public Service Commission points to two relevant clauses of the code of conduct: an employee must, in connection with APS employment:
- act with care and diligence; and
- take reasonable steps to avoid any conflict of interest.
These, it is said, impose certain obligations on public servants regarding outside employment. While the starting point may be that employees can do as they please out of hours, the code limits that freedom if there is a sufficient nexus with public service employment. The commission summarises: "APS employees are able to work outside the APS if it does not conflict with or adversely affect the performance of their official duties."
The scope of what might be covered by "work outside the APS" is broad. As well as ordinary paid work (whether as an employee or running a business), the commission also references directorships and even unpaid voluntary work as areas where a conflict might arise. The cautionary approach, then, would be for public servants considering any form of external work to flag it with their supervisor, lest an overzealous code of conduct official become involved.
The position in other jurisdictions is more straightforward, with explicit regulatory restrictions. In NSW, the Government Sector Employment Regulations specify that a public servant "is not to undertake any other paid work", while the ACT's Public Sector Management Act bans senior managers from paid jobs outside the service. In both cases, though, permission can be sought to undertake external work. A territory public servant seeking to engage in outside employment while on long-service leave must also seek approval.
This issue of an employee's ability to undertake secondary employment gained attention early last month when the Fair Work Commission rejected an unfair dismissal application in the case of Jacob v West Australian Newspapers. A newspaper machinist was working as an Uber driver in his spare time, and this came to his employer's attention when he picked up a company manager through the ride service.
Mervyn Jacob's contract contained a clause saying he could "not engage in other work without the company's written consent, provided such permission shall not be unreasonably withheld". Motivated by Jacob's failure to seek such approval and the possible "health and safety concerns holding a second job may cause", the newspaper publisher held an investigation before ultimately dismissing him.
Commissioner Bruce Williams held that Jacob's external employment, contrary to the contractual requirement, was a valid reason for dismissal and, in the absence of any countervailing factors, thereby rejected the claim. In addition, it was found that Jacob's conduct during the investigation process – he misled his employer on several occasions and swore at a manager – also constituted a valid reason for dismissal.
There are, of course, legitimate employer interests at stake in this arena. The government is no doubt eager to avoid potential conflicts of interest that may arise from outside work. To offer an illustrative extreme, it would be highly improper for a procurement officer to provide consultancy services to potential bidders in his or her own time. Similarly, private sector employers rightly want to prevent staff from moonlighting for competitors or otherwise harming the employer's interests through secondary employment. But Justice Paul Finn's oft-cited Federal Court exhortation continues to ring true: extensions to the control an employer is permitted over their employee's private activities must be "carefully contained and fully justified".
The Jacob case is a cause for concern because it foreshadows a far greater intrusion. The employer's unchallenged reliance on health and safety issues, including fatigue, goes beyond legitimate conflict of interest or conflict of duties motivations upheld by courts in the past. While an employer does have legislatively imposed work health and safety obligations, these should generally be managed within the workplace, not by seeking to intrude into an employee's out-of-hours activities.
Jacob failed to address how an employee driving for Uber at night is any different from, say, playing contact sport or spending considerable out-of-work time caring for an elderly relative. Suggesting that an employer can regulate what an employee does in their own time on the basis of nebulous concerns about fatigue and well-being, as Jacob does, is a slippery slope indeed.
Although the accessibility of secondary jobs may have increased in the internet age, the dilemmas raised in this context are hardly novel. In 1946, British judge Lord Wilfred Greene observed: "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 utilising his spare time. He is paid for 5½ days in the week. The rest of the week is his own." While the 5½-day work week may have been consigned to history for most, Greene's reasoning remains sound. In this area and others, APS decision-makers should think carefully before intruding into public servants' private lives.