Can you work for another employer while on leave?
If an employee is on annual leave and long service leave, are they permitted to work for another employer during this time?
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Q One of our employees is on four weeks’ annual leave and four weeks’ long service leave. It has come to our attention they are performing work for another employer, although it is not an employer who operates in the same industry. It is our view the employee should be taking paid leave to provide a respite from work and enable them to renew their energies for work. Performing work for another employer during paid leave would seem to devoid this purpose. Can we direct the employee to cease work for another employer during a period of paid annual leave or paid long service leave? The employee is employed in Victoria.
A The conditions relating to annual leave and long service leave are regulated by two separate pieces of legislation ‚ ¨ the Fair Work Act (FW Act) with respect to annual leave, and the Long Service Leave Act 1992 [Vic] in the case of long service leave.
Annual leave ‚ ¨ National Employment Standard (NES)
In the absence of a specific provision in the FWAct on this issue, an employee is able to work for another employer while on a period of annual leave, provided the work performed with the second employer does not conflict in any way with the business interests of the first employer. The NES does not imply any control by the first employer over the activities of an employee while on annual leave.
Long Service leave Act ‚ ¨ Victoria
Under the Victorian legislation (s78), it is an offence to work while on long service leave or to employ someone who is on long service leave. However, where an employee has more than one job (for example, two part-time jobs), the situation may differ. If such an employee takes long service leave from one of their part-time jobs (Job A), they may continue to work in the other part-time job (Job B). However, while they are on long service leave from Job A, they must not work for Job B during the hours for which they would otherwise work for Job A and for which they are being paid long service leave by Job B.
Other jurisdictions ‚ ¨ long service leave
Preventing an employee from working for another employer during an absence on long service leave will depend on the relevant state or territory long service leave legislation. The following statutes prohibit an employee from working for another employer during a period of long service leave:
Long Service Leave Act (s16) [NT]
Long Service Leave Act 1987 (s14) [SA]
Long Service Leave Act 1958 (s27) [WA]
The following statutes do NOT prohibit an employee from working for another employer during a period of long service leave:
Long Service Leave Act 1976 [ ACT]
Long Service Leave Act 1955 [NSW]
Industrial Relations Act 1999 ‚ ¨ Part 3 [Qld]