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  1. #1
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    Default Employment/contract question.... Any experts on here?

    We want to employ someone and their past employer is trying to prevent them being able to work for us. Long story. But are there any experts on this kind of 'employment contracts' area?


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    I would contact fair work australia, I'm not in law but my hubby has this clause in his contract. I think their enforcement is pretty limited and they have to show that the restriction is reasonable and would be in direct competition with their business to their detriment.

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    Ok thanks, was on hold to fairwork for abt 30mins today and got thru to noone ggrrrr. Will try them agn tmrw!

    It seems very airy fairy (I have a copy of his contract) in their wording

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    Definitely contact fairwork. We have contracts in place at work stating that you can't work for a rival company/project within 6 months of leaving us due to confidential information, depending on what group you work in.

    Having said that, I don't know how closely they monitor someone when they leave?! Also, I wonder how far the other company would be willing to take it?

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    Not sure about now but 15 years ago we employed a salesperson who had the 5k radius can't work for 2 years clause in his last employers contract, it went to court and he won as the judge said you can't restrict trade

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    Restraint of trade clauses can be (and have been) upheld in court, but the company enforcing them has to demonstrate that the clause is fair, and not too wide sweeping.

    Restraint of trade clauses are often 'cascading' so they specify that someone may not work within certain geographical locations/ distances from the prior employer, or in certain fields, or with certain clients, for set periods of time (e.g., 3, 6, 9 months). These cascading clauses 'hedge their bets' a bit, specifying a number of different conditions, and are more commonly upheld in court than standard clauses because a judge can choose which part to uphold. (E.g., "Well, a year is unreasonable, but 3 months seems fair.")

    Some restraint of trade clauses are seen as too restrictive and unreasonable, and these are often thrown out.

    So it all depends on the ins and outs of the contract, and I would recommend talking to a lawyer for more specific advice.

    I have personally seen restraint clauses upheld legally, because they have been drafted with legal advice so as to not be unreasonable.

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    Thanks ladies!!! This one is very loose (well I think so). One line, must be a typo, says something like... For 12 mths u can't work for any service or anywhere. (end of point, must have neglected to finish sentence on contract lol stupid!) then a few points further it says u can't work for anyone or any third party that u may have worked for while working for them for 12mths (it's labour hire so no commercial secrets!)

    So I don't think it'd stand up in court?!?

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    Hmmm tasha ftom memory the contract cant inhibit someone from gaining paid employment within their usual work area. It would not be reasonable. Most contracts would advise that you are unable to work with or poach contracts/customers but not stop you frim working with others.
    Unfortunately you will need to do the waiting game and speak to fair work.

    Sent from my GT-I9100 using BubHub

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    Quote Originally Posted by Girl X View Post
    Restraint of trade clauses can be (and have been) upheld in court, but the company enforcing them has to demonstrate that the clause is fair, and not too wide sweeping.

    Restraint of trade clauses are often 'cascading' so they specify that someone may not work within certain geographical locations/ distances from the prior employer, or in certain fields, or with certain clients, for set periods of time (e.g., 3, 6, 9 months). These cascading clauses 'hedge their bets' a bit, specifying a number of different conditions, and are more commonly upheld in court than standard clauses because a judge can choose which part to uphold. (E.g., "Well, a year is unreasonable, but 3 months seems fair.")

    Some restraint of trade clauses are seen as too restrictive and unreasonable, and these are often thrown out.

    So it all depends on the ins and outs of the contract, and I would recommend talking to a lawyer for more specific advice.

    I have personally seen restraint clauses upheld legally, because they have been drafted with legal advice so as to not be unreasonable.
    I agree.

    I doubt Fair Work will be of any particular assistance, but you can try. The proposed employee should see an employment lawyer for advice, as it's specialist advice and turns on the individual situation. It also turns on the previous employer's willingness to enforce the clause. some people take a pragmatic view that it costs too much, but some a more enthusiastic to commence proceedings.


 

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