QLD Contractor - Can I Start My Own Independent Business?

Discussion in 'Employment Law Forum' started by Joanie, 5 April 2018.

  1. Joanie

    Joanie Member

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    I work in the Real Estate game as an Independent Contractor. As a result of recent changes (2nd April 2018), the company directors must now pay a minimum wages.

    1. Can they terminate my contract? (Orginial contract says either party can terminate with 30 days notice). If so, must they pay me?

    2. I have not been asked to leave, however, I am now under considerable pressure to make sales (which I wasn't before). Can I start my own independent business (even though there is a non-compete), so that I am not subjected to this pressure?

    3. Should I ask them to make the contract null and void to relieve them of any obligation to pay me/release me from the non-compete clause? (This is perhaps the most desirable outcome)
     
  2. Rod

    Rod Lawyer
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    You ask questions that are difficult to answer without a lot more facts.

    Without having the necessary information my best guesses are:

    1. Quite likely. They have to pay you during the notice period. NB: not reading the full contract is a serious handicap.

    2. Possibly. It is hard to stop you competing with them. However this does not mean you can use any client information from their business. Using any client information would likely result in a win for them if the matter went to court.

    3. Why? See answer to point 2. Even if you got a release you'd still likely be unable to poach their clients unless it was an extremely well written release (ie prepared by your lawyer). The chances of them agreeing to such a release would likely be small once they read and understood the intent of the release.
     
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  3. Joanie

    Joanie Member

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    Thanks Rod. I just notified them that I wished to terminate the agreement. I was asked to state in writing that I wished it to take immediate effect. I guess this releases them from paying me during the notice period. I am OK with that. As it is a sales job, their clients are the ones with which they have an agreement. Until that point they are fair game. Is this correct? So people on my data base, who I rang as cold leads (but I rang saying I was from such and such realty) are these people now able to be contacted by me?
     
  4. Rod

    Rod Lawyer
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    No.

    Define 'my database'. Who created the database? who sourced the client information that was entered into the database? Were you working for the real estate business either as contractor or employee when gathering the client data?

    Depends on the answers above. If the real estate business paid for the collection of the client database, I suspect the answer is no. You are not on firm legal grounds approaching clients of the real estate business. There may not be any barriers to starting your own business (needs confirming) but poaching is generally a 'no-no'. Any poaching is done at your own risk and remedies against you can include damages and stripping of profits.

    It is different if a client approaches you. The agreement the client has with the real estate business and any action the real estate business can undertake is against the client not you and the type of action depends on the wording of the agreement.

    Of course you can go hell for leather and poach as much as you like and hope they take no action against you. Depends on your tolerance for risk.
     
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  5. Joanie

    Joanie Member

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    Awesome Rod. No I was a contractor. Own phone, own car, own time. No money. Thank you so much for your help.
     
  6. Tim W

    Tim W Lawyer
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    I note this page, and I now wonder about the OP's frankness with us.
     
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