The FWC doesn’t often get a chance to consider a high profile case around the interaction of common law duties with the FWA statutory regime. But in Bertos v Northern NSW Football (Northern) that just that occurred. Mr Bertos was appointed by Northern as a full-time Technical Advisor and then subsequently accepted a role as the Head Coach of Weston, a team that played in Northern’s elite competition. His role at Northern involved developing talent in the Northern League and his role at Weston, included developing Weston’s talent and making him not available at key times for Northern.

Courts have always jealously protected employees rights to secure secondary employment where it does not breach a duty or impact on their performance of the primary role. We saw this problem (work impact upon work, in the OHS space) during late summer where employers, particularly in the North started to get an abundance of soft tissue injuries arising from employees secondary role of hay carting and attending work sore, tired, physically fatigued and susceptible to injuring themselves at work.

In this case the duty of fidelity obligations were clearly broken. Mr Bertos could not do his role of a technical advisor without an obvious conflict around Weston players, could not give his full time to Northern and therefore placed Northern at risk and what was an obvious and stunning conflict, undertook a whole of competition supervisory role around talent whilst coaching one of the elite sides in the competition. What surprises me most is that this case made to hearing, given the flagrant breaches. Not surprisingly, Mr Bertos lost his claim.

Lessons

• All Contracts of employment should require employees to disclose secondary employment or the desire to accept secondary employment and seek approval
• In this case, the contract for Mr Bertos was in dispute, it should have been updated. Always remember to update contracts when roles change and insert clear job descriptions and
• Incorporate within your contracts a clear statement of the common law duties and when inducting people and explain what it means.

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