Conduct and Compliance Procedure - Paid Outside Work

Parent policy

Preamble

The University fully encourages and supports the engagement of staff in a range of professional development and community activities provided that the undertaking of these activities is in accordance with this procedure.

This procedure seeks to achieve a balance between providing opportunities to staff to engage in outside professional development activities for remuneration and the University's need to minimise its exposure to legal, financial and operational risks that may arise. All Paid Outside Work (POW) gives rise to risks to the University, but these may be remote or acceptable. It is only unacceptable risks that will prevent the POW being done. This procedure provides a framework for the undertaking of University Practice and Private Practice (POW).

This procedure applies to all staff of the University except for conjoint appointees.

Definitions

Conjoint appointee: Usually a professor in the Faculty of Medicine who is also the Director of a clinical centre in a hospital, and who is actually employed and paid by the hospital on hospital employment conditions, but by virtue of his/her employment contract with Monash has the status of professor.

Conflict of interest: The term ‘conflict of interest’ refers to a situation where a conflict arises for an individual between two competing interests. These are often, but not exclusively, interests of public duty versus private interests. This refers to a reasonably perceived, potential or actual conflict of interest. Conflicts of interest can involve financial or non-financial interests of the staff member and the interests of a business partner or associate, family member, friend or person in, or has had a close personal relationship with the staff member.

Conflict of commitment: This occurs when one interest of a staff member, which may, or may not be a private interest or non-University interest may harm or interfere with the productivity or involvement of that staff member in aspects of University responsibilities. It may concern the staff member’s distribution of efforts between employment obligations to the University and to outside activities. Conflicts of commitment can occur in research where the staff member’s non-University activities harm or interferes with the staff member's research obligations.

Dean or Divisional Director:  Where the Dean or Divisional Director is mentioned in these procedures, it also refers to a delegate nominated by the Dean or Divisional Director. It should be noted, however, that a person to whom a responsibility has been delegated is unable to approve his or her own POW. This may only be approved by the Dean/Divisional Director.

External party: A company, association, person or organisation, other than Monash University and Monash-controlled entities.

Minor miscellaneous income: Income derived from work or an activity undertaken by a staff member which is connected with the work of the staff member and which might reasonably be construed as either University Practice or Private Practice. However the work or activity either:

• is a “one-off” activity which takes no more than one day; or
• in any given year:
• involves a total of no more than 40 hours of the staff member’s time; and
• generates remuneration for the staff member of no more than $10,000.

Private Practice: Paid Outside Work means work or professional development activities that a staff member of the University undertakes in his or her private capacity for remuneration, which is outside his or her normal duties (in this regard reference should be made to the employee’s engagement profile or position description), where the University is not a party to the contract under which the work or professional development is undertaken. By way of example, this might include a consultancy or the commission of a particular piece of work.

Risk: Exposure to the possibility of something happening that will have an impact on the University’s organisational objectives. The broad organisational objectives are best described in the document entitled 'Leading the Way: Monash 2020', the 'Excellence and Diversity: Strategic Framework', and the various strategic plans of the University. For the purposes of this procedure, “risk” includes, but is not limited to, risks to the University’s reputation, finances, delivery of quality services, people, security, organisational culture, operations and legal liability. An unacceptable risk refers to an activity that contravenes this procedure.

Royalties: Income derived by an employee of the University from his or her authorship or contribution to a written publication such as a textbook.

University Practice: Paid Outside Work means work or professional development activities that a staff member of the University undertakes as a staff member of the University for an external party which is outside his or her normal duties (in this regard reference should be made to the staff member’s engagement profile or position description), where the University is party to the contract under which the work or professional development is undertaken. There are three kinds of University Practice, namely: staff initiated, Monash University initiated and controlled entity initiated.

Relevant Enterprise Agreement: Monash University Enterprise Agreement (Academic and

General Staff) 2005, Monash University Enterprise Agreement (Trades and Services staff -Building and Metal Trades Staff and Grounds and Gardening staff) 2005, Monash University Enterprise Agreement  (Trades and Services Staff - Catering and Retail, Cleaning and Caretaking, and Miscellaneous services staff) 2005.

1. Approval required for paid outside work

If a staff member wishes to commence or continue any kind of Paid Outside Work, the staff member must do so in accordance with the provisions of this procedure.

All staff members are expected to devote their working time to the service of the University, in accordance with the terms and conditions of their appointment and their engagement profile or position description, as appropriate. Therefore, as this procedure outlines, prior written approval from the dean or divisional director is required before staff undertake Paid Outside Work.

In order to undertake any form of Paid Outside Work the staff member must:

• complete a Paid outside work disclosure and approval form;
• send the completed form to the head of department or school for approval;
• inform his or her dean or divisional director in writing of all Paid Outside Work that he or she intends to undertake prior to its commencement;
• discuss any potential or actual conflicts of interest, or conflict of commitment with the dean or divisional director of his or her faculty or division;
• obtain prior written approval from his or her relevant dean or divisional director (except for royalties and minor miscellaneous income, refer to Definitions);
• obtain permission to engage in continuing Paid Outside Work (such as a continuing consultancy) on an annual basis, at the same time as the staff member's performance review, including making a full disclosure of the proposed commitments for the coming year;
• not use his or her University title or position (for example, Professor) when seeking to attract, or when performing, work for an external entity in order to avoid any implication that may arise to the effect that the staff member is performing work on behalf of the University; *
• continue to comply with all of his or her obligations as an employee of the University, including obligations with respect to the University’s intellectual property, Conflict of Interest procedure and the confidentiality of the University’s information; and 
• comply with their obligations under Australian taxation law including any obligation to register for and pay Goods and Services Tax (GST) and/or Pay As You Go (PAYG) tax.

If an external party requests the University to undertake work, then any work performed by a staff member of the University is to be regarded as University Practice (Monash University initiated University Practice). The dean or divisional director must approve the work to be performed for the external party. The work must then be formally incorporated into a staff member's engagement profile or position description. The staff member must follow steps a) to h) above. 

If a Monash University controlled entity desires work to be performed by a University staff member, then the Monash controlled entity must reach agreement with the relevant dean or divisional director. The options available to the University and the controlled entity are as follows:

• the staff member may undertake the work as University Practice, in which case it must be included in his/her engagement profile or position description;
• the staff member may be seconded to the controlled entity for the duration of the project; and
• the University may allow the staff member to undertake the work as Private Practice provided that it meets the criteria set out in section 3.

A part-time staff member undertaking University Practice that is initiated by the staff, Monash University or a controlled entity may wish to discuss the possibility of an increase in his/her work fraction for the period of University Practice.

Staff members wishing to undertake Private Practice must, in addition to steps a) to h) above:

• obtain his or her own full professional indemnity insurance and any other appropriate insurance for Private Practice;
• not use University resources for Private Practice without obtaining written permission in advance and reimbursing the University for the use of those resources at the rate agreed;
• ensure that the external entity with which the staff member is performing Private Practice work, understands that it is contracting with an individual and not with Monash University;**
• understand and agree that the University is not responsible in any way for the work conducted by the staff member in Private Practice; and
• not use University accounts to receive or hold funds that are raised through Private Practice activities.

* If a staff member is engaged in Private Practice where the Private Practice involves an appointment of distinction and carries minimal risk for the University, the staff member may apply in writing to the Vice-Chancellor for approval to use his or her academic title while engaged in Private Practice. An example where approval would be given is where an academic staff member is requested to participate in a formal Board of Enquiry.

** When undertaking Private Practice it is the staff member's responsibility to make clear to the person or body requesting work that the staff member, and not the University, will undertake the work and that the University has no responsibility or liability for work undertaken. The staff member must sign a Declaration prior to undertaking private paid outside work form to this effect, have his or her external client sign that they have noted the declaration and return the signed document to the dean or divisional director when seeking prior approval to undertake Private Practice.

2. University practice

Paid Outside Work can only be included as part of University Practice where the University is party to the contract under which the work is undertaken. This is intended to ensure that there has been professional scrutiny by the University of the contractual arrangement, an assessment of the adequacy of the contractual payment and consideration of any possible liability of the University and other forms of risk for the University.

Prior to any contract being signed with an external party or Monash controlled entity, or prior to any work being performed, whichever is the earlier, a legal, financial and administrative risk assessment must be undertaken by the University. The dean or divisional director is required to sign the University practice paid outside work risk assessment certification by dean/divisional director form.

Following the risk assessment, a contract approved by the University Solicitor’s Office, or a Contractor Agreement C should be completed and signed by the contracting party and the dean or authorized delegate, prior to the commencement of work in accordance with the University’s legal requirements.

If there is agreement that the staff member will be paid for work completed, a Paid Outside Work Payment Request Form must also be completed by the staff member and sent to:

• the relevant dean for approval; and
• HR Operations, Human Resources Division to process the payment.

If the external party or Monash controlled entity does not wish to contract with the University directly, the dean or divisional director will consider whether it is possible, reasonable or desirable for the staff member to undertake the work as Private Practice.

3. Private practice

A staff member of the University may engage in Private Practice upon receiving the written permission, in a prescribed form, of the dean or divisional director, subject to the staff member’s continued compliance with this procedure.  This permission will not be given where:

• the Private Practice might reasonably be expected to impede the reasonable operations of the University or the discharge of the staff member's work, as recorded in the engagement profile or position description;
• the Private Practice might reasonably be expected to impede the general operations of the organisational unit, for example by disrupting teaching or research programs or unreasonably restricting access by students to the staff member;
• an unacceptable potential for or actual conflict of interest or commitment (as defined) arises;
• an unacceptable risk (as defined) is posed to the University;
• the staff member proposes to use University resources and an appropriate agreement about the use of the resources and the reimbursement to the University for those resources cannot reasonably be reached; and
• the work is derived from a controlled entity of the University, unless the University elects not to do this work.

This list is not exhaustive and there may be other reasons for the refusal to grant permission.

Permission to undertake Private Practice will not be unreasonably withheld.

A staff member must discuss any potential or actual conflicts of interest or conflict of interest with the dean or divisional director of his or her faculty or division as soon as the staff member becomes aware of them.

This Paid Outside Work procedure is in addition to and does not operate to detract in any way from, the University’s Conflict of Interest procedure.

3.1 Private practice for part-time staff members

Part-time staff members are able to engage in Private Practice, provided that the Private Practice is not an excluded category as set out in 3 (a - f) above. While part-time staff are not required to seek permission to perform Private Practice, part-time staff are required to inform their dean or divisional director of the nature and extent of the Private Practice and to confirm that it is acceptable as set out in 3 (a - f) above.

4. Minor miscellaneous income

The staff member may receive minor miscellaneous income without prior permission and retain the income derived from that activity. The only exceptions are listed under point 3 a – f of these procedures.

In cases of doubt, a staff member should seek specific permission from the dean or divisional director. Conversely, the dean or divisional director may come to the view that the aggregate amount of the staff member’s minor miscellaneous income is such that a limit needs to be discussed in the interests of the organisational unit, or that the staff member’s activity can no longer be properly categorised as minor miscellaneous income.

5. Insurance

Private Practice is not covered by University insurance and is always engaged in entirely at the staff member's own risk.

University insurance for professional liability, WorkCover and public risk does not cover this form of activity. The University does not take any responsibility for, warrant or indemnify in any way the activities of staff members involved in Private Practice, even where University resources have been used with permission.

Staff members should obtain their own legal and financial advice with respect to obtaining their own insurance to cover all Private Practice.

6. University accounts

Staff members undertaking work as part of University Practice should adhere to the following principles for the operation of consulting funds/external accounts for University Practice.

• Only funds from University Practice can be held in the University’s financial system. The University’s financial system cannot be used to hold or receive funds generated from private practice activities.
• Funds generated from consulting activities held in the University’s financial system are presumptively owned and controlled by the University.
• Consulting fund/external earnings accounts can only be opened on the approval of the relevant dean or divisional director and are to be maintained and monitored by the faculty office.
• The transfer of funds from these accounts is at the sole discretion of the relevant dean or divisional director and any requests for the transfer of funds to another institution must be approved by those officers.
• All expenditure from consulting funds/external earnings accounts must comply with relevant University policies and be capable of satisfying the PAYE and FBT requirements of the Australian Tax Office and meet both internal and external audit requirements.
• All items of equipment purchased from external earnings accounts remain the property of the University.

7. Disciplinary issues

A staff member may be subject to disciplinary action if the staff member:

• represents (actively or passively) an external party that work is being conducted under the auspices of the University when it is not (i.e. it is Private Practice or POW that has not been approved by the University);
• is performing work which places the staff member in a position where there is an unacceptable actual or potential conflict of interest or commitment with his or her University responsibilities;
• competes commercially with the University in circumstances where there is an actual or potential conflict of interest or commitment (refer 3 c);
• undertakes Private Practice that interferes with the proper execution of the staff member's work, without prior approved alternative arrangements having been made to cover these;
• makes use of University resources to Private Practice, for which prior approval has not been given and/or where no appropriate arrangements for reimbursement to the University have been made;
• is employed by or contracted to another educational institution for activities that would otherwise have been undertaken by inter-institutional arrangements;
• receives payment for private tuition of students of the University;
• undertakes Private Practice that was introduced through the University, and that should be contracted to the staff member's work unit;
• undertakes POW of any kind without appropriate approval;
• breaches any provision of this procedure; or
• colludes with another staff member to bypass or breach the provisions contained in this procedure.

8. Grievance procedures

Any staff member who is aggrieved by the application of this procedure may utilise the University's normal grievance processes as specified in the relevant Enterprise Agreement (as defined) or where applicable, the provisions of the relevant AWA.

9. Policy variations

The Vice-Chancellor may establish associated regulations and administrative procedures to enable appropriate administration of this procedure. This procedure will be regularly reviewed by the Human Resources Division.

Responsibility

Deans and divisional directors are responsible for monitoring compliance with this procedure and reporting information about the number of staff involved in Private Practice and University Practice Paid Outside Work, the value of University Practice to the University, the resource implications for the University of POW and the recouping of any resource costs.

Members of staff involved in either form of POW [“or in Minor Miscellaneous Income” see comment above] will report their activities during the performance development process and the supervisor will report on POW activities to the dean or divisional director. A register of POW activity within a faculty or division must be recorded and maintained.

Where there is any doubt as to whether an activity falls under this procedure, clarification should be sought in the first instance from the dean or divisional director.

Related Procedures

• Conduct and Compliance Procedure – Conflict of Interest (including Conflict of Interest in Research)

Related Enterprise Agreement Clauses

• Monash University Enterprise Agreement (Academic and General Staff) 2005, Part H  

Related Documents

• Agreements – University Solicitor’s Office
• Commercialisation Guidelines
• Intellectual Property and Copyright
• Guidelines for Use of Contractor Agreements
• Pricing – Goods and Services Tax

Related Forms

• Paid Outside Work Disclosure and Approval Form
• University practice paid outside work risk assessment certification by dean/divisional director
• Contractor Agreement C
• Declaration Prior to Undertaking Private Paid Outside Work
• Paid Outside Work Payment Request