Employment Law - Restraint of Trade - Cascading Clauses
Date: December 20, 2010
Authors: LAC Lawyers
Restraint of trade has garnered an ever increasing amount of attention over the past few years as employers attempt to restrain former employees in their conduct after they leave their employ. The purpose of such a clause is to protect the custom of the previous employer. Generally restraint of trade clauses are void against public policy unless the restraint is necessary for the purpose of protecting the legitimate business of the previous employer.
A recent trend in the employment circle has been the introduction of a clause known as a cascading clause. A cascading clause is defined as a clause that provides a number of options in regards to time and areas of coverage of the restraint of trade clause.
Recent court decision has considered the validity of cascading clauses in an employment contract and in a recent decision the court considered the issue whether the cascading clauses can be severed from the rest of the cascading clauses. The court will consider each clause separately and whether the clauses are inconsistent with each other. In the above case the court decided that the clauses could be read separately and therefore valid. Other cases have concluded that the cascading clauses are invalid as the employee is unaware of the nature of the restraint and this would causes difficulty in the assessment of the validity of such a clause.
It appears that the court will consider the cascading clauses to be valid when the clauses are clear and unambiguous which does not require the intervention of the court in interpreting the cascading clauses. In addition, the court will also consider the period in which the restraint of trade is to operate. The court held that a 12 month period was reasonable for the protection of the business. The question of reasonableness is to be decided upon the facts of each particular case.
One would need to consider the issue in relation to cascading clauses prior to them being inserted into the contract of employment.
At LAC Lawyers Pty Ltd, we are able to assess your situation and provide you with a comprehensive opinion as to the proper cascading clauses to be included in the contract of employment.
Employment Law - How $16,000 in underpayments can turn into $200,000 in fines.
Date: April 30, 2012
Author(s): Patrick Mulligan B.A., LL.B.
This article pinpoints the importance of obtaining advice on employee entitlements and early intervention by a lawyer when the Fair Work Ombudsman(FWO) initiates a workplace investigations. This case concerned a retail shoe business that underpaid employees.
Employment Law - Contract Law - Contract of Emplyment - Reisgning in fixed term contracts
Date: March 27, 2012
Author(s): Patrick Mulligan B.A., LL.B.
The purpose of this article is to review the Purcell case. This case is significant in so far as it highlights the application of contract theory to employment contracts. Theoretically when one party elects to terminate/breach the contract by resigning the law provides that the innocent party may elect to accept the repudiation or keep the contract on foot.
Employment Law - Restrain of Trade Clause - Restraint clause held to be reasonable but court would not grant injunction
Date: March 02, 2012
Author(s): Patrick Mulligan B.A., LL.B.
EMPLOYMENT LAW-RESTRAINT OF TRADE CLAUSE IN EMPLOYMENT CONTRACT-EMPLOYMENT RESTRAINT CLAUSE HELD TO BE REASONABLE BUT COURT NOT GRANT INJUNCTION AS IN ALL THE CIRCUMSTANCES IT WOULD BE UNJUST.
CASENOTE: ECOLAB PTY LTD V STEPHEN GARLAND [2011] NSWSC 1095 (SEPTEMBER 2011)
The purpose of this article is to analyse the above case. It is a very significant precedent and goes to show the flexibility the courts have when considering whether or not to grant an injunction.
Employment Law - Contractors - GST, superannuation payments and ABN
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
Usually independent contractors do not have the benefit of receiving compulsory superannuation contributions. It is prudent, however, to obtain specialist superannuation advice from a legal practitioner or a certified accountant, as to the circumstances in which an independent contractor is entitled to the benefit of compulsory superannuation contributions.
Employment Law - Contractors - How do you draft a contract for an independent contractor?
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
It is important to try and avoid creating an employment contract or a contract of services. Legally, this means that you must describe the arrangement as a contract for services.
Employment Law - Contractors - How does the Fair Work Act 2009 (Cth) seek to minimise ‘sham’ arrangements?
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
The Independent Contractors Act 2006 (Cth) (the Act) took effect on 1 March 2007. The Act seeks to ensure that genuine independent contractors are not treated as employees. It also protects genuine employees from being treated as independent contractors.
Employment Law - Contractors - What is the difference between a contractor and an employee?
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
Contractors are not employees and legally they stand in a class of their own. The parties to a contract need to be clear about their respective rights and responsibilities at the outset because the distinctions between employees and contractors have long vexed the courts.
Employment Law - Contractors - What makes a worker is an independent contractor?
Date: March 01, 2012
Author(s): Piria Coleman B.A., LL.B. (Hons)
Many people that operate as independent contractors run their own businesses. The work of an independent contractor may permit a worker to delegate or subcontract performance of the work to other persons.
Employment Law - Unfair Dismissal - Are you a casual or permanent part-time employee?
Date: March 01, 2012
Author(s): Patrick Mulligan B.A., LL.B.
The purpose of this article is to address employees and employers obligations under the Fair Work Act with respect to entitlements, payment, classification and remedies for employees.
Employment Law - Adverse Action Claim - An example of a case where the employer rebutted presumption that employee was dimissed due to complaining about work conditions and entitlements
Date: February 27, 2012
Author(s): Patrick Mulligan B.A., LL.B.
Mr. Manchin(employee) commenced employment with Miners Tipper Services as a truck driver.(Herein the employer). The employer dismissed him on the grounds that his conduct jeopardised the reputation and business relationships of the business. In response he filed an application claiming that the real reason for his dismissal was because he exercised workplace rights with the employer by complaining about wage conditions and entitlements.
Employment Law - Unfair Dismissal - Can an employee be dismissed for comments made on Facebook regarding work colleagues?
Date: February 27, 2012
Author(s): Patrick Mulligan B.A., LL.B.
Mr. Stutsel had worked for Linfox for over 22 years. Fellow managers had learnt of comments made about them on face book. One manger of Muslim origin was called a “bacon hater” and sexual innuendos and jokes were made about a female manager. An investigation was conducted. Mr. Stutsel was subsequently dismissed.
Employment Law & Commercial Law - Restraint of Trade Clause - Introduction Fees? Are they restraint of trade clause?
Date: February 27, 2012
Author(s): Patrick Mulligan B.A., LL.B.
The purpose of this article is to analyse a recent decision in the Supreme Court of Victoria regarding the interpretation of restraint of trade clauses. In Earth Force Personnel Pty Ltd v E A Negri Pty Ltd & Anor [2010] VSC 426 (22 September 2010) a labour hire company appealed a decision by the Magistrates Court regarding the interpretation of an introduction fee. In that case the respondents argued that the introduction fee was unenforceable as a restraint of trade clause and that the introduction fee was therefore not payable.
Tax Law - Advance pricing(Part 2)
Date: February 22, 2012
Author(s): Jonathan Lim B.A., LL.B. (Hons)
In part 1 of this article we saw that advance pricing arrangements (APAs) are a means by which the ATO seeks to kerb transfer pricing. This part of the article goes into more detail on the APA system.
Tax Law - Annual compliance arrangements(Part 2)
Date: February 22, 2012
Author(s): Jonathan Lim B.A., LL.B. (Hons)
Part 1 of this article set out the basics of what an annual compliance arrangement (ACA) is, and how to enter one. This part of the article will talk about what the arrangement involves during each year.
Tax Law - Value Shifting Essentials (Part 1)
Date: February 21, 2012
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Value shifts happen when there is transaction between two parties and the value used for the transaction is not the market value of the asset(s). As a result, the value of an asset from one party is decreased while the value of the other is increased, creating an opportunity to artificially create losses or gains to be used for tax evasion purposes.
Tax Law - Value Shifting Essentials (Part 2)
Date: February 21, 2012
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Indirect value shifting happens when two parties under the same ownership engage in a transaction.
Employment Law - The Enforceability of Post Employment Restraints of Trade (Vic.)
Date: December 18, 2011
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employing highly intelligent and highly qualified employees in a range of sophisticated commercial businesses is a risky business for employers.
Employment Law - Redundancy - Unfair Dismissal - Should Employers Offer a Lower Paid Position to Employees?
Date: November 29, 2011
Author(s): Patrick Mulligan B.A., LL.B.
The purpose of this article is to review Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011]FWA 5215. This case addressed issues of whether it would have been reasonable to redeploy the employee into a lower paying position when she was made redundant. She argued that it was not a genuine redundancy as the employer never offered her alternative employment in a lower paid position.
Employment Law - Unfair Dismissal or a Genuine Redundancy? When is Redeployment Reasonable?
Date: November 29, 2011
Author(s): Patrick Mulligan B.A., LL.B.
A common issue in termination of employment is determining whether the employee has been unfairly dismissed or made redundant. The employer may have told the employee that it is a genuine redundancy.
Employment Law - How your Criminal History may affect your future Employment
Date: March 14, 2011
Author(s): Mark Bostock LL.B., B.Bus.
A concern faced by many who are facing prosecution is the influence a conviction may have on them should they be found guilty of a criminal offence.
Employment Law - Employee Theft
Date: March 07, 2011
Author(s): Annette Wood B.A. (Policing), LL.B.
Employees stealing from employers in an increasing problem. This is increasingly evident when approximately 80% of workplace crime is carried out by employees. Employee dishonesty is a crime, it can take many forms such as embezzlement of funds, false invoicing, theft of cash, false inventory, payroll fraud and computer fraud.
Employment Law - Unfair Dismissal and Discrimination Provisions
Date: December 07, 2010
Author(s): LAC Lawyers
If you can answer yes to any of the following questions then this article on Unfair Dismissal and Discrimination is for you
Unlawful Discrimination Claims and Limitation Periods
Date: December 01, 2010
Author(s): LAC Lawyers
Having established your right to make an unlawful discrimination claim, the next step that one needs to consider is the limitation period for the lodgement of such a claim.
Business and Commercial Law - Restraint of Trade
Date: October 08, 2010
Author(s): LAC Lawyers
Key employees have always been the cornerstone of every successful business or enterprise and great difficulties are caused by the sudden loss or departure of key employees which in turn could harm the relationship between the business and its clients. Key employees have over the years enjoyed a close relationship with clients and losing them would have a detrimental effect on the management and reputation of the business.
Employment Law - The Rights of an Employer and their Employee
Date: October 08, 2010
Author(s): Jana Whitby B.A., LL.B. (Hons.)
With the Law in this area constantly changing, many employers and employees are uncertain as to their rights with respect to such things as employment contracts, termination of employment and redundancy.
Employment Law - You Have Been Terminated, Does it Amount to Unfair Dismissal?
Date: October 08, 2010
Author(s): LAC Lawyers
Organisations with It is becoming more rampant in the current times that an employee is found to have been terminated. Termination of employment can take several forms and unfair dismissal seems to be a common occurrence.
Small Business Fair Dismissal Code - Termination Of Employment Rules For Small Business Under The Fair Work Act 2009 (Cth.)
Date: July 30, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
One of the significant changes made to unfair dismissal laws by the Rudd Government under the Fair Work Act 2009 was the introduction of the Small Business Fair Dismissal Code (“the Code”). The Code included a check list for employers to complete when terminating employment. Small employers hoped that by complying with the check list, it would be easier to dismiss staff.
Employment Law - Unfair dismissals under the Fair Work Act
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The Fair Work Act 2009 (Cth) became fully operational from 1st January 2010. The Fair Work Act changed the rights of employees and responsibilities of employers relating to dismissals.
Employment Law - Unfair dismissals under the Fair Work Act - Common Law Contracts
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Finally, common law contracts of employment will continue to regulate a large number of employment relationships under the Fair Work Act. This will continue to be the case notwithstanding the creation of ‘Modern Awards’ by the Australian Industrial Relations Tribunal since January 2010. These Modern Awards cover ten modern award conditions which are similar to the National Employment Standards that provide the basic safety net for employees.
Employment Law - Unfair dismissals under the Fair Work Act - General Protection Provisions
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The Fair Work Act incorporates general protection provisions in Part 3 – 1. This Part incorporates the type of protection provided under unfair dismissal and freedom of association provisions which was incorporated into the Work Choices legislation. The unlawful termination provisions of Work Choices have been re-enacted in Part 6 – 4 of the Fair Work Act. However, the Fair Work Act provides that a person may not apply for help against an unlawful termination if they are also entitled to challenge the dismissal under the general protection provisions.
Employment Law - Unfair dismissals under the Fair Work Act - Remedies and Entitlements
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Remedies under the Fair Work Act are largely the same as under Work Choices. Reinstatement is the primary remedy. However, Fair Work Australia’s power to reinstate has been increased to order reinstatement to ‘associated interties’ – in other words to other companies in a group.
Employment Law - Can Employers Be Stopped From Discriminating Against Employees Upon The Basis Of Lifestyle Or Philosophical Beliefs As Opposed To Religious Or Political Beliefs?
Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
An English Decision and its Implications for Australian Emloyment and Discrimination Law
Intellectual Property - Trade Practices - The Law of Passing Off
Date: August 28, 2009
Author(s): LAC Lawyers
The principle behind the tort of “passing off” is that a person cannot represent their goods or services as those of another. The action for passing off protects business goodwill and reputation from wrongful appropriation.
Success in an Appeal to a University Body for an Accusation of Plagiarism
Date: August 04, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employment Law - Part 1 - How will the new workplace relations laws introduced on 1 July 2009 affect you?
Date: July 04, 2009
Author(s): LAC Lawyers
The introduction of new workplace relations laws through the Fair Work Act 2009 has changed employment law in Australia as we know it. The aim of the Australian Government in implementing this change is to effectively balance the various needs of employees, employers and unions with a view to ensuring Australia becoming a better country financially and guaranteeing minimum workplace standards and maintaining workplace rights.
Employment Law - Redundancy - Transmission of Business
Date: July 04, 2009
Author(s): LAC Lawyers
Your employer writes to you informing you that the company has sold its business together with its assets to another entity and that you are to re-apply for the same position in the new company. What are your rights? Have you been terminated? Are you entitled to claim redundancy payments?
Employment Law - The Three 'R's' & Unfair Dismissal
Date: July 04, 2009
Author(s): LAC Lawyers
What we’re referring to here is not the traditional ‘three R’s’ associated with education, but rather, the ‘R’ words in the context of employment and industrial law: resignation, retrenchment, and redundancy. Perhaps the word ‘retirement’ could also be added. This has great relevance in the current economic climate.
Employment Law - General Employee Entitlement & Redundancy Scheme (GEERS)
Date: June 05, 2009
Author(s): LAC Lawyers
If you have been made redundant or have lost your job because your employer has gone bust and you have not been paid your outstanding wages or entitlements, then you may be eligible for payment under GEERS.
Consumer Protection - Contract Review Act
Date: May 21, 2009
Author(s): LAC Lawyers
Often times consumers enter into contracts where the terms are not negotiable and are expected to just sign the bottom of the page and be on their merry way. Some of these contracts include mobile phone contracts, car hire contracts, pay television contracts, finance agreements, and even those little car parking tickets issued by the machines when you go into a shopping centre or car parking station.
Insolvent Trading and Director's Liability
Date: October 12, 2007
Author(s): LAC Lawyers
Directors may be liable, personally, under the Corporations Act, Trade Practices Act, and the OH & S Act, among other legislation. A Director may also be personally liable for non payment of taxes.
Employment Law - Unlawful Termination of Employment, Where Do You Stand?
Date: September 11, 2007
Author(s): LAC Lawyers
The Workplace Relations Act 1996[1] (‘WRA’), states that an employee’s employment is not to be terminated on certain grounds and section 659(2) of the WRA provides the appropriate coverage.
Unfair Dismissal - Your In the Wrong Class?
Date: September 11, 2007
Author(s): LAC Lawyers
The unfair dismissal provisions of the Workplace Relations Act 1996[1] (‘WRA’) are buried in the detail of the Act and for an employee to determine whether they have a valid unfair dismissal claim they need to establish if any exclusionary provisions apply to their particular employment circumstances.
An Explanation of Some Areas of Risk for Director's
Date: June 24, 2007
Author(s): LAC Lawyers
If you (personally) breach the Act, both you and the organisation may be prosecuted. If convicted, both you and the organisation may have to pay significant penalties.
Employment Contracts and Restraint of Trade Clauses
Date: April 22, 2007
Author(s): LAC Lawyers
This paper explores restraint of trade and confidentiality agreements between employers and employees. It is common for employers to have a global restraint clause to restrain departing employees from working for a competitor and that may not be sufficient.
Trade Practices Law - Key Provisions that all businesses should be aware of!!!
Date: April 22, 2007
Author(s): LAC Lawyers
Key provisions of the Trade Practices Act that a business should be aware of in order to avoid a breach of the Act.
What to expect when you call LAC Lawyers
Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.
The Benefits of Hiring A Lawyer
Date: August 16, 2006
Author(s): LAC Lawyers
The old adage “you get what you pay for” is as true today as it has ever been.
Why stay with your lawyer
Date: August 01, 2006
Author(s): LAC Lawyers
The lawyer/client relationship is a personal one and there are many reasons which will dictate who you can and cannot work with. If you don’t like your lawyer, should you change? Ultimately, the relationship between a lawyer and client must be built on mutual trust.
Employment Law – Unfair Dismissal and the Workplace Relations System
Date: March 26, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
The Federal Government has announced widespread changes to the Australian workplace relations system, by relying upon one of the heads of power under the Australian Constitution, namely the Corporations Power.
Employment Law - Workplace Bullying
Date: February 17, 2006
Author(s): LAC Lawyers
Workplace bullying has been with us ever since the advent of the Industrial Revolution. Interestingly in New South Wales the Office of Industrial Relations of the NSW Department of Commerce provides scant information about this anti-social workplace behaviour.
Employment Law - What Type Of Employee Am I?
Date: February 13, 2006
Author(s): LAC Lawyers
Sometimes people become confused as to exactly which category of employment they fall in to. Of course there is the permanent employee or the casual or part-time or permanent part-time or even the independent subcontractor. The real difference between the various categories of employment is whether there is a contract of service or a contract for services.
Consumer Claims - What Are The Processes In The CTTT
Date: February 12, 2006
Author(s): LAC Lawyers
Consumer Claims - What Do I Need To Know About Them?
Date: February 12, 2006
Author(s): LAC Lawyers
The Consumer Claims Act (NSW) 1998 ("the Act") provides a cause of action, which is known as a consumer claim, to consumers together with a number of remedies. All consumer claims are based in contract, including an oral contract.
Employment Law - Bullying - Adults in the schoolyard
Date: September 26, 2005
Author(s): LAC Lawyers
The idea of bullying has long been associated with naughty children in a schoolyard. But in recent years, there has been increased awareness and recognition in Australia that adults can be bullies too. Nowhere is this notion more alive than in the workplace, where high stress levels and hierarchies create a framework for day to day life.
Employment Law, Contract Law - Is a person who has a services company entitled to relief under s 106 of the Industrial Relations Act (NSW)?
Date: September 26, 2005
Author(s): LAC Lawyers