WorkCover and multiple jobs

Can you work another job while receiving WorkCover compensation?

Not your original job – the job related to which your injury relates. But another, alternative job.

Say, for example, that you aren’t able to do your primary job but you could perhaps work another job which is easier for you to manage because it doesn’t require any heavy lifting.

The answer to this simple query is however pretty complicated because we have to look at both what the WorkCover laws say as well as what the law surrounding employment says.

Employment law

Firstly, if you have a contract of employment with your employer, you will need to check whether there is any clause around having other employment.

If there is, you will need to look carefully at it.

Some contracts prohibit or restrict a worker’s right to have other employment

It might say that you cannot have secondary employment.

It might say that you need the employer’s permission to work another job. It could also say that you can work another job as long as it isn’t with a competitor in your industry.

Even if you don’t have a written contract, or your contract doesn’t cover the issue, you should consider whether it is a good idea and whether it would be best to tell your employer about it. You have a “common law” duty of good faith to your employer.

A common law duty is one that comes out of law made by the Courts rather than by Parliament.

The duty of good faith to your employer means that in a broad sense you shouldn’t be taking actions that harm your employers interests.

If the second job is for a competitor to your employer, or working the second job would interfere with your ability to do the first job, you might be breaching your duty to your employer.

If you did breach a written term of your employment contract, or the duty of good faith, you may face disciplinary action or termination of your employment.

Could this effect your WorkCover entitlements?

Only if you were terminated, and only if the termination was based on your behaviour and it was characterised as serious and wilful misconduct.

Even if this was the case, it does not mean that there would definitely be any changes to your WorkCover entitlements.

WorkCover legislation

In relation to WorkCover, there is no prohibition on you taking an additional job.

Your benefits don’t stop because you take on additional employment.

If you are in receipt of weekly payments, then the amount you receive will be reduced by the amount you earn in the new job.

If you do start a second job and are working, you would need to declare it in your WorkCover certificate of capacity.

Section 7 – worker declaration, requires you to tick whether you have or have not performed any work (whether you were paid for the work or not).

You must make sure to declare the other work you do – it is very important that you are accurate when it comes to declaring any work you perform.

The other consideration is that your current employer will be provided with a copy of the certificate of capacity and would find out about the second job if you hadn’t told them already.

Other considerations

This might be obvious, but the first thing to consider is whether you can safely perform the new job without restrictions.

If you are asked whether you have a pre-existing injury you should answer honestly.

If you do not, and this later comes out, the employer would have a basis to terminate your employment.

If you are not asked about it, you will also need to consider whether you declare your injury to the prospective employer anyway.

The reasons for doing this would be:

1. so they know of your restrictions before you start and can plan around them.

2. to avoid confusion, embarrassment or (unfair) criticism from not disclosing the injury

3. if there is a written request to confirm whether you have a pre-existing injury and you do not answer truthfully, the new employer can argue they do not have to cover you if you aggravated the injury.

You should also speak to your lawyer if you have one, before taking a second job to see whether it may cause any issues relating to your specific circumstances and claim.

Conclusion

The WorkCover laws in Victoria don’t stop you from working another job, but you must declare it on your WorkCover certificates of capacity or you may be in breach of the law.

Despite the above, your employment contract, or common law (unwritten) duty of good faith to your employer may prevent you from working a second job. You need to give careful consideration about what you should do, and if necessary get legal advice.

Issues like this one, which on the surface look like just a simple question about WorkCover, show the benefit of having lawyers that work in both the WorkCover and employment law areas.