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employment

Moonlighting: Can you have a second job?

Key Takeaway

Generally, New Zealand law does not prohibit having a second job unless the primary employment agreement or an employee's duty of good faith imposes restrictions. Employers can include clauses about conflicts of interest, confidentiality, or exclusivity in agreements. Health and safety duties also apply, requiring consideration of fatigue from multiple jobs.

This article provides information on the legal aspects of having a second job, often referred to as 'moonlighting,' in New Zealand. It covers the rules, rights, and obligations under relevant New Zealand legislation, including the Employment Relations Act 2000 and the Health and Safety at Work Act 2015.

Understanding Moonlighting in New Zealand Employment Law

'Moonlighting' refers to the practice of holding a second job in addition to one's primary employment. In New Zealand, there is no general legal prohibition against an employee having more than one job. However, specific conditions outlined in an employee's employment agreement or general legal duties can restrict this practice.

Employment Agreements and Contractual Obligations

Every employee in New Zealand must have a written employment agreement [Source: Employment Relations Act 2000, s 61]. These agreements are the primary source of an employee's contractual obligations and can contain clauses that address secondary employment.

Duty of Good Faith

Both employers and employees in New Zealand employment relationships must deal with each other in good faith [Source: Employment Relations Act 2000, s 4]. The duty of good faith means acting honestly, openly, and constructively towards each other. This general duty can require an employee to disclose a second job if it could potentially impact their primary employment or create a conflict of interest, even if the employment agreement does not explicitly state it.

Specific Clauses in Employment Agreements

Employment agreements may include specific clauses regarding secondary employment:

  • Conflict of Interest Clauses: These clauses typically prevent employees from engaging in activities that could put their personal interests at odds with their employer's interests. For example, working for a direct competitor could constitute a conflict of interest.
  • Confidentiality Clauses: These clauses prohibit employees from disclosing confidential information (non-public information obtained during employment) learned during their primary employment to third parties, including a secondary employer. A second job, especially in a related industry, might increase the risk of breaching such a clause.
  • Exclusivity Clauses: Some employment agreements may contain exclusivity clauses, which explicitly state that an employee may not work for another employer or engage in any other business activity during the term of their employment without the primary employer's consent. Such clauses must be reasonable in scope and duration to be enforceable.

Breach of Employment Agreement

If an employee breaches a term of their employment agreement related to moonlighting, or their duty of good faith, it could lead to disciplinary action, including dismissal. Any dismissal must be justified by the employer [Source: Employment Relations Act 2000, s 103A]. This means the employer must show that their actions were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

Health and Safety Considerations

Employers have a primary duty to ensure, so far as is reasonably practicable, the health and safety of their workers [Source: Health and Safety at Work Act 2015, s 36]. Employees also have duties to take reasonable care of their own health and safety, and to not adversely affect the health and safety of others [Source: Health and Safety at Work Act 2015, s 45].

Having a second job can lead to increased working hours and potential fatigue. Significant fatigue can pose a health and safety risk, impacting an employee's ability to perform their primary job safely and effectively. An employer might be concerned about an employee's capacity to safely perform their duties if a second job leads to excessive hours or insufficient rest.

Working Time and Rest Breaks

New Zealand law mandates minimum rest breaks and meal breaks for employees, depending on the length of their work period [Source: Employment Relations Act 2000, s 69C, s 69D]. While these provisions apply to each employment relationship separately, the combined effect of multiple jobs can impact an employee's overall rest and ability to perform their duties effectively and safely.

Public Service Employment

Employees in the New Zealand public service are typically subject to codes of conduct that address conflicts of interest, including secondary employment [Source: Public Service Act 2020, s 55]. These codes often require employees to seek approval before undertaking any outside employment that could conflict with their public service duties or bring their agency into disrepute.

When to Seek Independent Legal Advice

Individuals seeking to understand their specific rights and obligations regarding secondary employment should consider obtaining independent legal advice. This is particularly important if an employment agreement contains restrictive clauses, if there is a potential conflict of interest, or if disciplinary action related to moonlighting has occurred. Employees can contact Community Law Centres for free legal advice [https://communitylaw.org.nz/].

Key Resources