Booney wrote:Basically it's Restraint of trade v's Non Compete.
From something I've used previously :
When assessing whether a restrictive employment contract is reasonable and valid, the court will take into account the duration of the restraints, the geographic area in which they apply, and the activities of the employee the restraints seek to control.
Post-employment restraints are presumed to be invalid and unenforceable unless it can be shown that they are genuinely necessary to protect commercial interests. The onus is on the employer to demonstrate that a clause imposes no greater restraint than is reasonably necessary to protect these interests.
Employers can’t use a restraint clause to protect themselves against the usual processes of competition in a sector or market. Generally, broad restrictions on competition won’t be deemed to be reasonable or enforceable.Legitimate interests that are commonly recognised as supporting a valid restraint include the employer’s confidential information or trade secrets, customers and clients of the business (business goodwill) and the employer’s staff. It should be noted that an employee’s knowledge of confidential information and trade secrets is, in the eyes of a court, different from the more general know-how and expertise they use to do their job.
A restraint clause typically upheld by an Australian court is one of between three and 12 months’ duration, restricted to a specific geographical area and reliant on a special need to restrain conduct (e.g. solicitation of clients the employee had contact with).
Restrictive clauses aren’t essential in employment contracts because there is an inherent protection regarding confidential information. That is, if a contract doesn’t have restrictive provisions, an employee can simply take and misuse confidential information.
If an employer needs restrictions beyond that – for example, against the solicitation of clients or employees – carefully worded and reasonable restrictive provisions are required.
Without giving away who we are, we have confidential information/trade secrets on how to do certain things which gain a much higher % positive gain than the other few in our industry within Australia that are effectively directly competing. Very good point Booney on the "in the eyes of the court" statement. The court systems are made to make lawyers copious amounts of money.
Will keep you posted Booney as it progresses. My HR is meant to be updating me this arvo.
JK, if I were to leave my current job, that is something I would definitely say to the potential new employer (if it was in the same industry). Would make it much easier to close the case.