The online gig economy (think Uber, OnlyFans, general influencing on social media) is gaining traction and popularity for its inherently flexible nature. In a 2023 case the Fair Work Commission determined that a firefighter was not unfairly dismissed for posting explicit content to a Facebook group and OnlyFans during work hours. It seems from the judgment that this conduct would not have been a grounds for dismissal had it been engaged in outside of work hours, with the Commission finding that the worker’s ‘out of hours conduct’ was ‘not related or relevant to’ his employer.

So, what does it mean for your primary job when you start a side hustle? Do you need your employer’s consent? Can you be sacked if you start a particular kind of side hustle?

Contract 101 (again)

The relationship between an employer and employee is fundamentally governed by contract law. That means that the answer to the question of whether you can have a side hustle is largely dependent on the terms of your contract. While technically there is no overarching legal requirement to seek the consent of your employer to have a side hustle (unless your side hustle competes with your employer’s business, or affects your ability to perform your regular job), your contract might require you to do so.

Your relationship with your employer is characterised by fidelity (essentially, loyalty), any additional employment must not detract from your fitness to carry out your primary job. However the duty of fidelity only applies during employment. This led to the development of what became known as ‘restraint of trade’ clauses – these terms aim to balance an employer’s business interests against an employee’s freedom to work and, importantly, choose their work.

Restraint of trade

‘Restraint of trade’ clauses terms are typically used to restrict what you can do if you leave your employer (for example, not working for a competitor for a period of time) – their focus is not normally on simultaneous employment. A restraint of trade clause is unenforceable unless the employer can show that it only goes as far as is necessary to protect the employer’s legitimate interests. Such terms need to be tightly worded – clauses that seek to restrict you from carrying out any other work would likely be invalid.

Unfair dismissal

The other aspect of this discussion is to what extent employers can dismiss you for your conduct outside of work hours. The test for unfair dismissal on this basis comes from a 1998 case heard by the then-Australian Industrial Relations Commission. To warrant dismissal, the must either:

• be likely to cause serious damage to the relationship of trust and confidence between an employee and their employer;
• damage the employer’s legitimate interests (including their reputation); or
• be incompatible with the employee’s duty as an employee.

There have since been a number of cases brought by employees who were dismissed for expressing certain political or problematic views online. When it comes to something like OnlyFans, the main consideration would be whether it damages the employer’s interests. This could depend on the type of job you have – for example, it might be damaging to a university’s reputation if one of its academics produced explicit content. In other employment contexts, that might not be the case.

Some states have introduced ‘profession, trade, or occupation’ as a protected attribute in their discrimination and equal opportunity legislation, meaning that that sex workers cannot be discriminated against based on the nature of their work. While we don’t yet know how broadly this will be interpreted and applied, employers should ensure that their decisions about hiring and firing are based on the employer’s legitimate interests and the requirements of the role.

Other considerations

If you are considering taking up a side hustle you should also ensure you are complying with your tax obligations, including reporting any income to the Australian Tax Office (ATO). Whilst some people might not realise it, any income earned through content creation (including on OnlyFans) is taxable income which must be declared. The ATO provides some helpful guides for budding social media influencers (and side hustle enthusiasts more generally).

Conclusion

It’s important to check the terms of your contract, particularly for any terms that require you to obtain consent from your primary employer to engage in a side hustle. In deciding whether to pick up a side hustle (let’s say you’d like to walk dogs on the weekend or sell your pottery at a market stall) it’s important to consider whether it impacts your employer’s interests and your ability to perform in your regular role.

Post-publication author’s note: Just one day after we published this article, the Australian Government announced that they would ‘ban non-compete [ie, restraint of trade] clauses for nearly 3 million workers’. This announcement is an election pledge and is not law until (and only becomes law if) it is legislated.

Note that the content of this blog does not apply in all jurisdictions, does not constitute legal advice, and should not be relied upon. You should seek legal advice in relation to any particular matters you may have. All opinions expressed are our own, not necessarily those of any organisations with which we are connected.