NSW 457 Visa - Can't have Another Job for Six Months?

[Ambra]

Hi,
I have a 457 Visa and I work as sous chef in a restaurant. Recently I had another job (and sponsor) offer that I'd like to take. In this new position I would work in a different role, making pizza preparations (dough) and not in a restaurant.

In my current employment contract it is said: "By accepting this letter of offer you acknowledge and agree that you will not work for a competitor or establish a business in competition to the services provided by (name of the company) for a period of six months upon termination of employment."

Does that means that I can't accept the new job even if it is in a different position? Since this is my job, this extract looks like it would debar me from working for that period, and the immigration stability that I would need to find a new sponsor in 90 days upon the termination of my actual employment.

Best regards.

 

[Ivy]

Hi Ambra,

Your employer has put a restraint of trade clause in your contract. This means that your employer may try to sue you if you go to work for a competitor (based on the clause you have given).

However, this does not mean that they will be able to enforce that clause against you. Restraint of trade clauses are limited in their application.

The law is that a restraint of trade clause is invalid unless:
1) There is a legitimate business interest that needs protection
2) The clause is reasonable in the interest of the parties (that is, the business does no more than is reasonably necessary to protect their business interest)
3) The clause is reasonable in the interest of the public.

The business has to show the first two elements. And you would have to show that the clause isn't reasonable in the interest of the public.

The business may be able to stop you from starting a competing business for 6 months after you finish working there. This is because, for example, they may be able to show that they have a business interest that needs protecting and the clause only operates for 6 months.

However I suggest that it would be harder for the business to enforce a clause that stopped you from working for a competitor point blank. The more broad the clause, the less likely it is to be enforceable.

However can you please notify whether your current employer is also a pizza service?

Also, is there someone you can (or have been) talk(ing) to about your visa? A migration agent for example?

 

[Ambra]

Hi Ivy,
Thank you for your reply, no the restaurant where i work doesn't produce any pizza, it's a contemporary australian's cousine.
I will consult a migration agent as soon as possible.
Thanks for your help

 

[Ivy]

Hi again Ambra,

If the restaurant where you're currently working serves a different cuisine, then I suggest that your current employer would have difficulty showing that by working for a restaurant that serves pizza that you are working for a competitor. Personally I think you should be fine.