Restraint Of Trade

Employment Contracts can contain Restraint of Trade clauses which affect the post-employment obligations of employees to their former employer.

Employees who are contemplating new employment in a similar area either for a competitor or related industry should first review the status of their post-employment obligations.

Often new employers require that an incoming employee warrant that they are not bound by any restraints.

When reviewing whether or not a restraint is valid the starting point is Section 4(1) of the Restraint of Trade Act 1976 which provides:

“A restraint of trade is valid to the extent to which it is not against public policy, whether it is several terms or not”.Read More

Domestic Violence Leave for Workers – Employers Take Note – George Hoddle

GRHRecently the Fair Work Commission during its four-yearly review of Modern Awards has ruled on Domestic Violence Leave.

In response to the submissions of Unions and the demands of the general public on the issue, the Fair Work Commission has sought to protect workers, noting “family and domestic violence is a community issue and requires a community response.”

The Fair Work Commission has released the final domestic violence leave model which will be inserted into all modern awards which will see Domestic Violence Leave being made available to workers from 1 August 2018.

The key elements of the incoming domestic violence leave are as follows;

  • The Leave will be unpaid;
  • The entitlement is up to 5 days leave annually;
  • It will apply to all employees including full time casuals and part-time employees;
  • The leave will not accumulate from year to year but will be available in full at beginning of each 12 month period;

The new provision will protect employees from any adverse action an employer may take against an employee for taking time off in accordance with the Domestic Violence Leave regime.… Read More

The Christmas Break – George Hoddle

GRHThe heat has arrived in the North West and the countdown to Christmas is here. This is an opportunity for employers to review how their business deals with one of the biggest liabilities that sits on their books. It is of course annual leave.

The January period in the region for many industries and sectors is often the quietest month which in turn may or may not require a fully staffed workplace.

Under the National Employment Standards (NES) workers in full time employment are guaranteed a minimum four weeks annual leave per year or for some shift workers 5 weeks. If those minimum weeks of annual leave are not taken during the calendar year the residual leave not taken accumulates.… Read More

Claims by adult children in contested Wills – George Hoddle

GRHAs a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.

There is an emerging predisposition on the part of Judges of the Supreme Court that adult children bringing a claim for further additional benefits from the Estate, which their claims may be dismissed entirely or otherwise the provision made for them will be made in a paltry amount.… Read More

Pro Rata Long Service – George Hoddle

GRHUpon the continuous service of 10 years a worker in most circumstances is able to qualify for long service leave. It is worth noting however, that in certain situations an employee may be able to qualify for long service leave on a pro rata basis before the expiry of obtaining 10 years continued service.

The Long Service Leave Act provides that an employer must pay an employee (with more than five years but less than 10 years’ service) their pro rata long service leave entitlements where the employee resigns from their employment “on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker.”… Read More

Family Provision Claims – Keeping the Farm Together – George Hoddle

GRHRecent decisions in the Supreme Court have reinforced the Courts preference for keeping family operated farms together in certain situations in circumstances where a Will is contested.

A recent case involving a grazing property near Wagga Wagga upheld the deceased’s wishes to keep together a farming operation that had been left to the son at the exclusion of a claim made by a city-based daughter of the deceased. Whilst the daughter had been able to establish need she was ultimately unsuccessful.

When determining need “the court also considers the nature, extent and character of the estate.” The character of the estate in an example of a rural estate with its major asset a working farm is a significant factor that a court will consider.… Read More

Twas the night before the Christmas Party… – George Hoddle

GRHThe Mercury has risen, Paul Kelly is making gravy, Christmas is just around the corner and the Christmas parties are now in full swing.

Christmas parties for employers and employees provide a welcome relief from the day-to-day stress of being in business. It is an opportunity for employers to show their appreciation for the year’s hard work to their employees.

Both employers and employees should be wary however, that a Christmas party even if it is outside of office hours and at a different venue than the normal workplace is still defined as “in the course of employment”.

A recent decision in the Fair Work Commission saw an employee whilst behaving in an otherwise inappropriate and offensive way, did not constitute grounds for dismissal.… Read More

Can employers become responsible for the criminal acts of their employees? – George Hoddle

GRHThrough the employment of staff an employer has exposure for the actions of an employee that bind the employer. This long established legal principle is referred to as Vicarious Liability.

Vicarious Liability is a liability imposed on one person for the wrongful act of another on the basis of a legal relationship existing between them. This extends to an employer being liable for the wrongful act of an employee.

An employer has long been found to be liable for the harmful acts of an employee if they are done within the course of their employment. A simple example of this would be an employers liability to pay damages in circumstances where an employee in the course of their employment has negligently caused harm to another person.… Read More

Restraint of Trade – George Hoddle

GRHOften, after the separation of employment both employees and employers are concerned about whether or not restraints will apply to the former employee as part of their post-employment obligations to their former employer.

In New South Wales a restraint is valid to the extent to which it is not against public policy bearing in mind an employer is not entitled to be protected against mere competition but is protecting its legitimate interests by enforcing the restraints. Such interests may include employer’s trade secrets, confidential information, the employer’s goodwill, including its connections with its customers.

It is also worth noting that there are statutory obligations under the Corporations Act that an employee cannot use information obtained to gain advantage for themselves or for someone else which may cause detriment to a corporation.… Read More

Consider Fixed Employment Term Contracts – George Hoddle

GRHWhat is a Fixed Term Employment Contract?

Sometimes it suits employers to hire people for short, fixed periods of time. For example, there may be a specific project with a defined period that requires specialised staff.

A fixed-term contract is an employment agreement which will continue until an agreed date. The term is fixed and it is clearly defined as having a start date and a finish date inserted into the employment contract.

The benefits for an employer of a fixed-term contract is that the employer can conclude the employment relationship upon the expiry date without the need to give reason for termination.… Read More