Right to multiple employment

According to previous supreme court case law, secondary employment is generally permissible if it does not violate the employment contract or legal provisions and does not impair the employee’s duties in the primary employment. In such cases, the employer cannot restrict secondary employment (OGH 17.03.1993, 9 ObA 15/93). This right is now explicitly enshrined in § 2i para. 1 of the Austrian AVRAG (Employment Contract Law Adjustment Act).

However, the employer may, in individual cases, require the employee to refrain from engaging in additional employment if:

it conflicts with statutory working time regulations, or
it is detrimental to the role in the existing employment relationship.

A conflict with working time regulations exists when the total working time across all employment contracts exceeds the maximum limits set by the Working Time Act.

Detrimental behavior is assumed if the new employment relationship has unreasonable negative effects on the operation of the first employer’s business. This may include cases where the employee can no longer properly fulfill the obligations of their primary job or if the new employment directly competes with the first employer in the same line of business.

It is important to note that § 7 para. 1 of the Austrian Salaried Employees Act (AngG) clearly states that the existing non-compete clause remains unaffected. The provisions of § 7 AngG and § 2i AVRAG apply independently of one another, and § 2i AVRAG does not interfere with the non-compete rules defined in the AngG.