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NSW Work Holiday Visa Ending - Work for New Employer?

Discussion in 'Commercial Law Forum' started by camille, 22 October 2014.

  1. camille

    camille Member

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    Hello,

    To start, sorry for my English, which is not very good.

    To start from the beginning, I'm french and I came in Australia as a second Working Holiday Visa.

    Before to came, I found a job as a crepe maker in a creperie in Sydney for 6 month because we are not allowed to work more than 6 month in the same company. I just finished this 6 months in this company, and I just found another creperie in Sydney as well which is ok to give a sponsorship, and because I was looking for a sponsorship, it's a good opportunity for me.


    The problem is, the first company doesn't want me working for the new one because they said it's a competitor and when I came for work in the first company, its was right in my contract.

    "During your employment with the company or with any other affiliated entities or body corporate, and during for 3 years after the termination of your employment, you must not directly or indirectly be employed, contract, hold a directorship or a shareholding in any business competing directly or indirectly with the company. This clause is limited to states of NSW,VIC, WA."


    Could I have some problem with the first company if I'm going to work for the second one. The second one told me, they can't refuse me my employee rights to work for other company, as crepe maker is my job.


    Can you help me with the employment law please?


    Regards
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi,

    There are usually standard non-compete clauses in contracts. However, a non-compete term of 3 years is unreasonable and will unlikely be enforceable. A non-compete term of 3 months is more appropriate. And even then, such terms are usually reserved for highly-skilled, highly-secretive positions such as IT or directorship or executive/management. It is not usually be adopted for creperies where the skill is replaceable (i.e. the business is not reliant on the skill/identity/experience/clientele of a particular person).

    Courts hesitate to enforce non-compete clauses because it's a restrictive trade clause that prevents a person from making a livelihood.

    I suggest talking to a lawyer and confirming that this is unreasonable. But I do not believe it is enforceable.
     
    Rod likes this.
  3. Tim W

    Tim W Lawyer

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    J'accord à SarahJ.
    Semble votre employeur précédent ne veut que vous intimider.
    Crepier n'est pas un métier qu'attirerait un exclusion come cela.
    Aussi, il n'ya pas de problèmes à visa.

    (Et je vous demand mille fois pardon - mon français est bien pire que votre anglais!)
     
    Sarah J likes this.
  4. camille

    camille Member

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    thank you for your answer both !

    you make me feel better now, i was very stressed about that !

    Tim, your french is very good !
     

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