Employees working a second job

When can an employer stop an employee from working a second job?

Having a second job is not automatically prohibited. Generally, an employer is not allowed to regulate an employee’s time outside of working hours.

However, if a second job negatively affects an employee’s primary employment, the employer may be able to intervene.

Situations where a second job could adversely affect primary employment include:

• the second job creates a risk to work health and safety (WHS) in the primary employment because the employee is fatigued from working the second job,

• there is a conflict of interest; for example, where the employee runs a rival business or works for a competitor of the primary employer.

Work health and safety risks

Employers are required to ensure the health and safety of their employees, and employees have a concurrent obligation to ensure that they are fit when they attend for work.

If an employee is not fit for work because they are too tired from working their second job, it may be reasonable for the primary employer to intervene.

Employers should be proactive and speak to employees who appear to be suffering from fatigue or burnout and attempt to find a solution that will suit both parties.

Failing that, it may be reasonable in some cases for the employer to direct the employee to stop working the second job.

Conflict of interest

A conflict of interest can occur where the nature of the second job or the way it is undertaken could damage the primary employer’s business.

For example, an employee may work for a direct competitor of their primary employer. In this situation, the conflict could arise from:

• the employee causing detriment to their primary employer by helping their second employer compete with the primary employer

• breaches of confidentiality if the employee uses confidential information gained from their primary employer for the benefit of the second employer.

Not all second jobs will create a conflict of interest. For example, if an employee’s primary job is as an office administration worker for an employer in the construction industry, and they obtain a second job as a casual retail assistant with a toy store during the Christmas period, the second job is unlikely to create a conflict of interest with their primary employment.

Can an employee work a second job while on leave?

Annual leave

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 from working for another business while they are on annual leave.

Long service leave

Whether an employee can work in another job while on long service leave varies between the states and territories.

Long service leave laws in Victoria, South Australia, the Northern Territory and Western Australia prohibit employment during long service leave.

The laws in New South Wales, Queensland, Tasmania and the Australian Capital Territory do not specifically deal with this issue.

In some cases, other long service leave rules will apply instead of state and territory legislation.

Employers and employees should ensure they understand the long service leave requirements that apply to their circumstances.

Personal/carer’s leave

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 situations are usually complex, and their resolution will depend on the relevant medical evidence. Employers should seek specialist legal advice before deciding what steps to take.

Leave without pay

Generally, leave without pay is a discretionary arrangement between an employer and employee. It is therefore possible for an employer to limit other employment activities of an employee during a period of leave without pay.

There are some forms of leave without pay, such as some unpaid personal/carer’s leave and community service leave, that 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).

Conflict of interest and WHS considerations still apply during leave

Even if there is no specific prohibition on an employee working a second job during leave, the conflict of interest and work health and safety considerations may still mean a second job is not permissible.

Managing secondary employment

If there is a genuine WHS or conflict of interest impact on the primary employer’s business from an employee working a second job, an employer can:

• implement a policy on second jobs, setting out when and how an employee should seek permission to take on a second job, and/or

• include a clause in employment contracts about employee obligations in relation to second jobs.

Employees should ensure any second job complies with their employment contract and workplace policies.

Key takeaways

• Having a second job is not automatically prohibited. However, an employer may be able to intervene where the second job creates a genuine work health and safety risk or a conflict of interest.

• Employees can often work a second job while on leave, but the rules vary depending on the type of leave. In particular, some long service leave laws prohibit employees from working elsewhere while on long service leave.

• Clear contracts and workplace policies can help manage secondary employment. Employers should ensure expectations around second jobs are documented and communicated to employees.