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Neues Recht auf Mehrfachbeschäftigung

In dieser Episode des Arbeitsrecht-Podcasts diskutieren Matthias Unterrieder und Magdalena Ziembicka die jüngsten Entwicklungen iZm der Umsetzung der EU-Richtlinie über transparente und vorhersehbare Arbeitsbedingungen in Österreich, mit besonderem Fokus auf das Recht auf Mehrfachbeschäftigung. Dieses Recht ist am 28. März 2024 in Kraft getreten und betrifft sowohl bestehende als auch neue Arbeitsverhältnisse. Matthias Unterrieder und Magdalena Ziembicka erörtern die rechtlichen Änderungen und weisen auf Fälle hin, die zu Diskussionen Anlass geben könnten.

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New right to parallel employment

Episode Summary

In this episode of the Arbeitsrecht podcast Matthias Unterrieder and Magdalena Ziembicka continue the discussion on the recent implementation of the EU Directive on Transparent and Predictable Working Conditions in Austria, focusing on the right to parallel employment. The right to parallel employment entered into force on 28 March 2024 and applies to both existing and new employment relationships. Matthias and Magdalena address the changes to the legal framework and indicate instances that could give rise to discussion.

According to the new law, employees who enter into a parallel employment relationship may not suffer any adverse treatment by their primary employer because of this. However, in individual cases, the employer can demand that the employee refrain from parallel employment, if it is incompatible with working time regulations, and if it is detrimental to the existing employment relationship.

Impact of the changes

The law now explicitly allows employees to engage in parallel employment unless such activities contravene working hour regulations or have a detrimental impact on their primary job. In contrast, it leaves the question of whether the same rules apply to self-employed business activities unanswered. Moreover, there may be doubts on whether a summary dismissal due to a detrimental secondary employment will be possible in the future under the same rules as in the past. Matthias and Magdalena argue that the conditions for summary dismissal have not changed.

Compliance with working time regulations

Parallel employment contravenes working hour regulations in cases where overall working time (times or all employment relationship aggregated) exceeds statutory maximum working hours. These are twelve hours per day and 60 hours per week, as well as 48 hours per week on average over a 17-week period. Notably, this rule does not include rest periods and daily breaks, focusing on actual working hours.

Detriment to the existing employment relationship

Secondary employment may be detrimental when it unreasonably impairs the obligations of the primary employment, such as when tasks from a secondary job are performed during the primary job’s hours, or when it results in direct competition. The Directive further identifies other detrimental scenarios: endangerment of employee health from additional workload, potential conflicts of interest, and risks to trade secrets. Specific examples include jeopardising health and safety by not adhering to required rest periods, or endangering patient safety in the case of healthcare professionals due to lack of rest.

Another example of negative implications of secondary employment may be damage to the reputation of the employer’s business: for example, a bank director, who at the same time works in a casino.

Relevant contractual clauses

Despite the new right to parallel employment, it is advisable to continue regulating secondary jobs contractually, ensuring they are enforceable under the new laws.

For instance, clauses that require employees to proactively report any secondary or multiple employments should be included in employment contracts. This reporting is crucial not only for maintaining legal compliance but also for enabling employers to effectively monitor and enforce working hour limits.

Assertion of employee rights

Under the new regulations, protection against dismissal due to proscribed motives has been expanded to include cases where employees are given notice on grounds of lawful parallel employment, enhancing employees’ right to challenge dismissals before court.

Justifications for dismissal

Where workers consider that they have been dismissed due to their parallel employment, they may require the employer to provide written justification for the dismissal. However, the law does not specify what must be included in these justifications. Regarding the legal consequences of failing to provide written justifications, the law states that such omissions do not affect the dismissal’s legal validity.

Unauthorised multiple employment

When employees engage in unlawful multiple employment (i.e., employment that contravenes working hour regulations or has a detrimental impact on the primary job), employers are legally entitled to demand that the employee cease said parallel employment. Importantly, this does not require a specific clause in the employment contract; it is a right that employers hold under the law.

In cases where secondary employment does not constitute grounds for immediate dismissal, employers would likely need to allow employees a reasonable period to terminate their parallel employment properly, respecting any applicable notice periods and termination dates.