VIC Contractor - Does Agency Clause Prevent Me from Taking New Role?

[Jason Rivera]

Hi all,

My initial contract via agency for 'Role A' has ended. A week later, the client offered me a new different role/position, with different responsibilities - 'Role B'.

Does the agency clause below prevent me from engageing directly with Client, regardless of role Department, etc?

Can this be challenged based on the above? If it was the same or similar role, I can see the justification.

"The Contractor must not during the Contract Term and for a period of twelve (12) months
thereafter solicit, procure, canvas, enter into an employment relationship or an independent
contract for services with, or otherwise retain business from:

(a) the Client or any subsidiary or Related Body Corporate of the Client; or
(b) any customer of the Client, or any other third party who was introduced to the Contractor in connection with performing the Services; without the prior written consent

 

[Rod]

It seems Clause (a) is clear, no wriggle room for you.
Clause (b) depends on the definition of 'Services'.

Clauses are separated by an inclusive disjunction (or) meaning only one needs to be true for you to bound by the contract term.

Can the agency enforce the term? - maybe. You have a chance to win if it goes to court, but then so do they. There are competing legal principles and the strength of each argument is in the detail and circumstances.

If I was in this position and it meant being in work or being out of work, I know what I'd do. But then I have a high tolerance for risk. You have to decide what is best for you, there is no straight answer here, other than get legal advice from an employment lawyer if it's important to you.

 

[Jason Rivera]

Thanks for the reply, Rod.

Personally, I think it's a very limiting clause. I tried to neg on these clauses before I signed but they wouldn't budge. I saw that California has a law against such clauses in contracts...but that's 'Merica.

Fortunately, in this case I was able to work something out with the agent.

I did have a further conversation on the topic with my agent and she said that if the new position was under a different department And different role, her senior managers would most likely let it slide.
If not, then I would have looked elsewhere, maintained my contact with the client advising the issue about the clause, but keeping the door open.