INTRODUCTION:
Dual employment is becoming more common as people look for different professional experiences or numerous sources of income in today’s competitive labour environment. Employees may benefit from this, but there are also legal and regulatory issues here, especially in a nation like India. . The increasing pursuit of diverse career pathways by professionals and the exploration of flexible organisational structures by organisations necessitate the comprehension of the intricate regulatory standards regarding dual employment.
Understanding Dual Employment:
Being employed by more than one employer at the same time is known as dual employment in India or the double employment rule. This indicates that a worker works a full-time job and gets paid by one business while working part-time for another company.
The ‘Moonlighting Clause’:
To better enforce this objective, many employers put a “Moonlighting Clause” in their agreements, offer letters, or employment contracts. As a “Negative Covenant,” the Moonlighting Clause forbids employees from moonlighting or taking on side work while doing their regular duties. This is a legally binding rule that is crucial to maintaining transparency and compliance in the workplace in India.
The Moonlighting Clause is typically explained to the employee during the onboarding process to ensure that both the employer and the employee agree to its conditions. It provides information to the employee about their obligations by describing the specific conditions and restrictions related to doing two jobs concurrently.
LEGAL FRAMEWORK:
Section 60 of the Factories Act lists several restrictions on dual work. It is quite clear that “unless there are specific circumstances that may be prescribed, no adult worker shall be required or allowed to work in any factory on any day on which he has already been working in any other factory.” Employing organisations that are not categorized as “factories,” as that term is defined in Section 2(m) of the Factories Act, are subject to the Shops and Establishments Act. This all-encompassing law governs employment and working conditions in a variety of settings, such as retail stores, offices, motels, restaurants, theatres, and public amusement areas. Schedule I B, Section 8 of the Industrial Employment (Standing Orders) Act, 1946 lays forth the terms of an order for “exclusive service.” The directive concentrates on the following: “A worker shall not, at any time, act against the interests of the industrial establishment in which he is employed, nor shall he accept employment outside of the establishment that could be detrimental to the interests of his employer.” The constitution’s Article 21 guarantees both the right to life and individual freedom.
In the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni, the Court held that “the right to livelihood” is a part of “the right to life” as guaranteed by Article 21. The Court interpreted this ruling liberally.
EMPLOYMENT CONTRACT (RULES AND REGULATIONS) AND PROCESS OF SEEKING PERMISSION FOR DUAL EMPLOYMENT:
Employment contracts, which are formal agreements between employers and employees, specify the terms and circumstances of a professional engagement. These include the duties and obligations of the parties, working hours, compensation, and any specific rules and regulations governing the employment relationship. Employees typically need authorization from their primary employers to work two jobs at once. This involves following a proper process in which individuals inform their primary employers of their intention to take on additional work and receive their permission. Understanding the proper channels and procedures for asking authorization is crucial to maintaining transparency and averting conflicts.
In the case of Manager, Pyarchand Kesarimal Ponwal Bidi Factory vs. Omkar Laxman Thange and Others, an employee was transferred from a factory to the head office. The Supreme Court noted that the general rule governing the relationship between a master and servant is that a service contract with one master precludes service with another master unless the contract expressly states otherwise or the master consents.
In a decision upheld by the Supreme Court, the Madras High Court held in the case of Tamil Nadu Racecourse General Employees Union v. Government of Tamil Nadu that “if the contract provides otherwise or the master consents, there may not be any prohibition to have dual employers.”
POTENTIAL LEGAL CONSEQUENCES FOR NON-COMPLIANCE:
Regulations prohibiting multiple works must be followed, or there may be dire repercussions. The possible legal repercussions, including contract termination, fines, and legal actions, would be described in this section. Employers and workers are encouraged to follow the rules because they are aware of the potential repercussions, which create a compliant and responsible work environment.
CHALLENGES AND SUGGESTIONS:
Conflict of Interest: Having two jobs can put you in a conflict of interest, particularly if they are in related or competing businesses. Employees should exercise caution when accepting dual employment offers that could compromise their primary position, as employers may insert clauses in employment contracts addressing such conflicts.
Performance and Commitment: Employers might be worried about how a person’s performance and dedication to their main work could be affected by having two jobs. It is imperative that employers and employees communicate openly in order to resolve any issues and set clear expectations for the amount of time and effort required.
Legal Consequences: There may be legal repercussions if employment contracts or applicable labour regulations are broken. If an employee works more than one job without permission, their employer may discipline them, perhaps terminate them. Workers have to operate in compliance with the relevant regulations and be conscious of the possible legal ramifications.
CONCLUSION:
Navigating India’s multiple employment rules requires a thorough understanding of the relevant labour laws and employment contracts. Employers and employees are both necessary to ensure compliance and address any difficulties. Maintaining the integrity of employment relationships while fostering a work environment that fulfills the evolving needs and goals of the workforce necessitates open communication, transparency, and compliance with regulatory requirements. As the nature of work continues to evolve, all stakeholders in the employment ecosystem need to be informed of how the law is evolving.
REFERENCES:
- https://www.linkedin.com/pulse/landscape-dual-employment-india-laws-regulations-khalid-khan?utm_source=share&utm_medium=member_android&utm_campaign=share_via
- “Dual Employment Or Moonlighting In India” by : Natasha Mahajan , Nivedita Udupa and George E. Cyriac, Available At: https://www.mondaq.com/india/contract-of-employment/1304076/dual-employment-or-moonlighting-in-india
- https://www.legalserviceindia.com/legal/article-9591-moonlighting-dual-employment-in-indian-law.html
- Government of Tamil Nadu vs. Tamil Nadu Racecourse General Employees Union(1993 ILLJ 977 Mad)
- Pyarchand Kesarimal Ponwal Bidi Factory vs. Omkar Laxman Thange and Others (AIR 1970 SC 823)
- Bombay v. Dilipkumar Raghavendranath Nandkarni (1983) 1 SCC 124
BY: Komal Goswami
