Employees have recently been granted the legal right to take up employment with other employers. This is regulated by § 2i Abs 1 AVRAG, which came into force on March 28, 2024, as part of the implementation of the EU Transparency Directive 2019/1152. This directive has also brought changes to employment contracts and written statements (Dienstzettel), which we have discussed in our blog post on the implementation of the EU Transparency Directive in Austria (Part 1).
Previous Contractual Practice
Previously, secondary employment was regularly subject to reporting and approval obligations or was completely prohibited in employment contracts. However, such a general prohibition of secondary employment was problematic even under the old legal situation, considering the constitutionally protected fundamental right to pursue any occupation (Art 6 StGG) and the relevant case law of the Supreme Court of Justice (OGH).
Under the new § 2i Abs 1 AVRAG, employees have a statutory right to multiple employment and must not be disadvantaged for exercising this right.
When can a secondary employment be prohibited?
Employers can still prohibit specific additional employment under certain conditions (§ 2i Abs 2 AVRAG):
- Incompatibility with working time regulations
To protect the employee from excessive workload due to additional employment, secondary employment can be prohibited if it leads to exceeding the maximum working hours (48 hours on average over 17 weeks). In this context, it is argued that additional employment can generally be prohibited in the case of an all-in salary. However, it remains to be seen whether the courts will take the same view.
- Impacts on the current employment relationship
Secondary employment that affects the employee’s performance in the existing job can be prohibited. This includes employment with competing companies, potential conflicts of interest (e.g., employment with a business partner), or risk of reputational damage.
Guidance for Future Employment Contracts
Companies should include references to the statutory grounds for prohibition in future employment contracts and require employees to notify them before taking up secondary employment. This allows the employer to assess whether there are grounds for prohibition in the specific case. For self-employed activities, a reservation of consent can be included in the employment contract, as the new regulation seems to apply only to additional employment relationships.
A future blog post will address the implementation of the EU Transparency Directive in Austria regarding training costs.
Disclaimer: This blogpost is for general information and guidance only and does not constitute legal or professional advice. For legal advice, please contact Eva Krichmayr (krichmayr@labourlaw.at) or Andreas Tinhofer (tinhofer@labourlaw.at) or send an email to office@labourlaw.at.