VIC Restraint Clause

[Mrs Claus]

Hello,

So I left a job 3 months ago. Long story short I was in a sham contract (set up as my own company but treated as an employee).

There is a 12 month restraint clause as well as 5km restraint. I have also been told to remove all my work I have done off my social media as its owned by them.

Well I am needing to go to work to earn an income, can they stop me from working that long? Do I have to work further out than the 5km? which is a struggle atm as not many places renting a room. I have found some where 4km away. Do I need to delete all my photos of treatments I have done? I have removed clients I have treated previously from my account and not contacted anyone I am leaving, but what happens when they contact me?

Does a sham contract mean the whole contract is invalid?

i dont want to do the wrong thing; but I need to earn an income again and being a time thats hard to get work, I cant just change careers.

hope you can help

thank you

 

[Atticus]

More learned folk may come along to correct/add to my comments, but generally they can't unreasonably restrict your trade or ability to trade..

Do I need to delete all my photos of treatments I have done? I have removed clients I have treated previously from my account and not contacted anyone I am leaving, but what happens when they contact me?

You don't have to refuse previous customers that come from unsolicited contact with you, however the treatment/product that you are providing may still be a problem .... With that in mind, it would help a lot if you could tell us the nature of work/tretaments that you are offering? .... Is it a treatment that is unique to the previous employer for EG, or just a common treatment?

Does a sham contract mean the whole contract is invalid?

A clause in a contract that is 'invalid' will not necessarily mean the entire contract is

 

[Mrs Claus]

Thank you for you response. I was hired as a subcontractor (made to set up as my own company prior to starting) as a cosmetic injector for a company that provides laser hair removal and “sub contracts” nurses to provide injectables.

 

[Rod]

I'd need to see your contract before I can properly comment.

Your situation sounds like sham contracting but without more detail I cannot be certain. And there are protections from unfair contracts if no sham contracting has been found.

As for restraints, you need to be careful about accepting work from previous clients, otherwise you are likely free to start work as an employee with no other restraints.

As to who owns the IP, that is likely covered in the contract. If you are claiming you are an employee, the employer likely owns the IP. Much depends on whether you are merely show casing your skills, or doing something more.

You don't have to refuse previous customers that come from unsolicited contact with you,

Not necessarily true. Need to see the contract to know.

 

[Mrs Claus]

Great, thank you for your response. I havent started yet; but ill make sure im not treating previous clients. Would working within a 5km be an issue? The photos are on my own page i set up and are show casing my skills eg lips i injected.