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
If your business need skilled workers that are in short supply, a good option for your business is to employ skilled migrants who are already in Australia on a skilled visa such as subclasses 189, 190 or 489/491. Many skilled migrants have high-level qualifications and years of work experience. You may find them valuable to the operation and development of your business.
In regional areas, the most common skilled visa held by migrants is 489 visa (to be replaced by 491 visa as from 16 November 2019). The 489 visa is also called Skilled Regional (Provisional) visa. Typically, under the invited pathway of 489 visa a skilled worker is nominated by an Australian state/territory or sponsored by an eligible relative and is then invited to apply for the visa.… Read More
Are you an Employer? If so, are you aware of each of your employee’s termination notice period entitlements are?
Many employers do not take the time to understand their employment contracts and the effects of the National Employment Standards (NES). This can lead to harsh financial implications when terminating employees or, for example, selling your business, due to the requirement to provide the minimum period of notice or payment in lieu of notice.
If the notice period in the employment contract is greater than the minimum provisions under the NES, then the employment contract will apply. However, if the notice period in the employment contract is less than in the NES, the NES will prevail.… Read More
On 16 August 2018 the Federal Court handed down a significant judgment in the matter of Workpac Pty Ltd v Skene relating to the classification of casual employment. The case involved a dump truck driver, Mr Skene who applied for a “fly in, fly out” position with Workpac at a coal mine operated by Rio Tinto in Central Queensland. Mr Skene was informed the work would be 12 hours per shift, 7 days on, and 7 days off, on a continuous roster arrangement. Mr Skene was successful in obtaining the position and was provided a “Notice of Offer of Casual Employment”, his employment was also governed by an industrial agreement.… Read More
Recently 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
Upon 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
The Australian Institute of Company Directors released its Director Sentiment Index for the second half of the year on 1 December 2016. One of the headline findings is that, despite greater global uncertainty, 34% of directors expect their business to increase both levels of staffing and investment. Business confidence among directors has increased by ten index points and is at its highest since 2013.
When a business increases its staffing levels, it also adjusts all manner of systems and processes. The risks to the business associated with its employees increase. At Everingham Solomons, we hold a comprehensive database of employment documents that can be tailored to the needs of your business to assist you to manage risks around the employer/employee relationship.… Read More
Through 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
As a general rule, a small business employer is not required to pay redundancy pay, as set out in the National Employment Standards however there are some circumstances where you may be legally required to make these payments.
A “small business employer” is defined under the Fair Work Act as an employer who employs fewer than 15 employees at the time of the redundancy. This includes all employees you employee, the employee who is being dismissed, and any other employee who is being dismissed or terminated.
A casual employee is not to be counted unless they are employed on a regular and systematic basis.… Read More
Often, 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