Can an employee work elsewhere, in a second job, when they are on a period of leave with us?
This is a question that some employers may be asking themselves, especially around the Christmas-New Year period when many employees take annual leave from their full-time jobs. This time of year, often results in an increase in spending and general household costs from buying Christmas gifts, going on trips and attending or hosting Christmas and other end of year celebrations.
Living in one of the most expensive countries in the world, it is not surprising that employees are increasingly working multiple jobs to make ends meet.
The answer to this question requires consideration of different factors including any relevant contractual terms, potential conflicts of interest, relevant legislation, and work health and safety obligations.
Generally, an employer cannot regulate an employee’s time outside of working hours. Having said this, it is possible that an employee’s second job can impact on the employment relationship with their employer in a manner which would allow involvement by their employer.
Situations which may permit an employer to become involved are commonly where the employee’s second job genuinely impacts on their employer’s business, either because working a second job poses a risk to health and safety of the employee in their primary workplace or the second job is a conflict of interest with the employee’s employment obligations to their employer.
An issue that may arise from working a second job relates to potential breaches of an employee’s implied duties of fidelity and confidentiality. These breaches only occur where the nature of the second job and the way it is undertaken is such that the employee’s service in that second job could be seen as damaging the primary employer’s business to a sufficient extent.
An example of such a breach would be where the employee is working for a direct competitor, doing the same or similar work.
On the other hand, if the employee’s primary job is as an office administration worker, but the employee obtains casual retail assistant work during the Christmas holidays, it is unlikely to be considered a breach of contract or conflict of interest with the employee’s obligations to their employer.
Another common issue that arises from working a second job is fatigue. Employers have a positive obligation to ensure the health and safety of their employees, and employees have an obligation to ensure that they are fit for work.
If an employee chooses to work a second job while they are on a period of leave, it could mean that they are not getting time to rest and re-charge, or spend valuable time doing things they enjoy doing in their spare time.
Managers should be proactive and speak to employees that they observe may be suffering from fatigue or are “burnt out” and come up with solutions that will suit both parties.
The purpose of annual leave is to allow employees to rest and have time for recreation away from work. However, there is no rule in the National Employment Standards (NES) preventing an employee for working for another business while there are on annual leave.
Whether an employer can prevent an employee from working for another business while on annual leave will depend on the conflict of interest and work health and safety considerations set out above.
The answer to the above question varies between the states and territories.
Victoria, South Australia, the Northern Territory and Western Australia prohibit employment during long service leave and penalties may apply. In addition, employees in Western Australia who are found in breach forfeit their right to the remaining period of leave.
New South Wales, Queensland and the Australian Capital Territory do not specifically deal with this issue.
Tasmania is the only state which does not expressly prohibit an employee from working for another employer while on leave. Having said this, the employer should still consider contractual terms and the nature of employment for the second job.
Employees whose long service leave entitlement is derived from a pre-modern federal award may not be permitted to work for other employers during a period of long service leave.For example, employees who derive their long service leave entitlement from Part IV of the Metal, Engineering and Associated Industries Award 1998are not permitted to work for other employers who are also bound by Part IV of that Award.
While it is not usual, it is possible for an employee to be unfit for work with one employer but remain fit for work with another employer.
These circumstances would be complex and dependent on the relevant medical information. For further assistance in these situations, members should contact the Ai Group Workplace Advice Line on 1300 55 66 77.
Generally, leave without pay is a discretionary matter agreed between an employer and employee.It is possible, therefore, to limit other employment activities of an employee during a period of leave without pay.
Note, some forms of leave without pay, such as some unpaid personal/carer’s leave and community service leave, are employee entitlements under the NES.These types of leave without pay may permit an employee to engage in other work (for example, as a defence reservist or a participant in a voluntary emergency management activity such as firefighting).
As stated above, generally an employer cannot regulate an employee’s time outside of working hours.If there is a genuine impact on the primary employer’s business (either because working a second job poses a risk to health and safety or a conflict of interest with the employee’s employment obligations to the primary employer), there are some management strategies that can be used.An employer can:
Our workplace advisers are standing by and ready to answer questions from our members. For further advice or assistance on this topic, or any workplace relations matter, please call the Ai Group Workplace Advice Line on 1300 55 66 77.
