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WA Will Restraint of Trade Prevent Me from Finding Employment?

Discussion in 'Employment Law Forum' started by OXY, 16 October 2016.

  1. OXY

    OXY Member

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    Hi,

    I'm a full time employee of a contracting firm and contracted to a mining firm supervising their outload operations. Recently, the mining firm offered a permenant position directly with them. Immediately knowing this, my employer requested to sign a new employment contract with retraint of trade mentioning I can't work for any of the companies my employer is conducting business with, which I had to sign.

    Will this restrict me from finding a employment if I left my employer? And will this stop me from working to another miner but entirely a diferent workscope?
     
    #1 OXY, 16 October 2016
    Last edited by a moderator: 17 October 2016
  2. Rod

    Rod Well-Known Member

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    What sort of what work do you perform?

    If it doesn't involve trade secrets, or a senior role, or paying 2-3 times standard rates, then it is unlikely it can be enforced. But individual circumstances can change the answer to yes and I've just mentioned some of these circumstances.
     
    OXY likes this.
  3. Matthew Lynch

    Matthew Lynch Lawyer

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    Hi

    Be very careful about signing a restraint of trade if you intend to break the restraint.

    The starting point is that a contract represents the intentions of the parties. If you sign a contract which states that you agree not to work for companies your employer conducts business with then that will be upheld at face value.

    Whether you are senior or paid more than market rates is not relevant.
     
  4. Tim W

    Tim W Lawyer

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    I strongly agree with @MatthewL above.

    I would add however that if your employer made you sign the new contract
    under some kind of duress (eg something in the realm of "You have to sign this, and I'll sack you if you don't"),
    then you may find that it will not be upheld anyway.
     
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  5. Rod

    Rod Well-Known Member

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    I still disagree.

    The contract is the starting point, but the employer is not supposed to use the restraint clause as a way of protecting itself from competition.

    The employer needs to be protecting its legitimate business interests for the restraint clause to be effective and protecting itself from competition doesn't fit into this category. And the onus is on the party wanting to enforce the clause to prove this. If they do, onus shifts to employee to prove it is in the public interest to avoid the clause. Public interest is not served by going onto the dole if that is the alternative and so clause will not be supported by a court.

    Think Heydon J wrote a book or paper about this subject.

    And seniority and wages can be a factor although unlikely to apply here.
     
  6. OXY

    OXY Member

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    Thanks guys for your valuable help.

    Well, the job I'm performing is not an executive role or involved in management but supervising a small team and with a little knowledge of clints and employer's works.

    The skill set for the job is entirely learnt by me and no training or guidance provided by the employer.

    Further to the above, the contract clause is *** commence employment with any of the company's clients, including but not limited to "company A" and " B ", but can I start working for entirely different firm and not mentioned in my contract but our company is doing business with?

    And further to that, after making us sign the contract, they are reducing the workforce and increasing the workload. Can they do that?
     
  7. Rod

    Rod Well-Known Member

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    Another grey area.

    A lot of contracts have the clause 'other duties as directed'. Workload though needs to roughly align with the hours mentioned in the contract and unfortunately it is a buyers market (employer) at the moment in most areas. It is a judgement call as to how far either party pushes the limits on hours. Depends on many factors as to where either party draws the line. If both parties have the line in the same ball park you can negotiate a limit on the hours, or increased pay, or time off in lieu. If the parties expectations are too far apart, look for another job.
     

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