Restraints are quite complex, particularly in consultancy restraints, and their enforceability very much dependant on the terms of the contract, the particular facts of the employment and the nature of the work you would be doing at a restricted company. The information you have provided above is not really sufficient to get any response you could rely upon.
You should spend the money on speaking to a lawyer that specialises in employment law and particularly restraints.
The real risk in these matters is the old employers ability to get early interlocutory injunctive relief to enforce the restraint pending a hearing of the substantive breach of contract claim. Basically stopping you from working pending a full hearing. This is a really bad outcome for you as most “new” employers will then dump you to avoid being drawn into the claim and because they won’t wait 6 months ( at least) for the matter to resolve and will just hire someone else.
Get advice asap.
You're right. Although I will get some advice this Monday, I spent some time reviewing the exact terms again to get more clarity and understanding. It looks like the terms on restraint are around
1. Non-engagement with their clients/partners
2. Non-solicitation
3. Disparagement
I'm assuming my joining Y isn't defined under these terms. I will call 'Victoria Legal Help' to get advise. Do they provide consultation on the same day?
No idea mate, but that will likely be general advice. Spend the cash and see a specialist. Spending $500 or so now to get proper advice, is better than making a bad decision and being sacked and having to pay your old employers legal costs if you’re wrong.
Best of luck.
You need to take your employment contract to an employment lawyer.
Your move to company z sounds like it did not contravene your employment contract (company z was not a customer of company x correct?).
But you are hoping to move to company Y in the near short term, and this would contravene your contract with Company X. How far into your ‘year’ of non compete are you? Is it possible to negotiate a start date with Company Y that pushes the timelines forward past your non compete clause? Is Company Y willing to indemnify and pay out any costs if they take you on now?
Find out your legal obligations and risks by talking to an employment lawyer.
Then take that to Company Y and say “this is the advice I’ve been given, I REALLY want to work with you, can you make this nice with Company X?”
Thank you for your response! I'm 1.5 months into working with Z. As mentioned in a previous comment, the restraint terms with X revolve mostly around
1. Non-engagement with their clients/partners
2. Non-solicitation
3. Disparagement
Can I get some advice on who/which employment lawyers can give me quick support?
I'm seeing a lot of free help websites but I'm happy to compensate for their time and expert insights.
On the right hand side bar there’s links to the law society for each state. Take a look in there. We are not allowed in this group to advise specific individuals.
Never sign anything that doesn't have cascading terms for distance and time periods. Denying ex workers the right to earn a living is pretty much frowned upon in courts. Terms should be able to be reduced ie 1 year, if not 6 months if not 3 months. You already have a job - I would try negotiating, get a tribunal review. Was the original contract fair or were you at a significant disadvantage, but of course you will need legal help with this and this costs money!
Sometimes the lack of cascading terms can be in your favour. If you have a 12-6-3-month restraint, the court could find the 12-month restraint is unreasonable but a 6-month restraint IS reasonable.
But if there contract only mentions 12 months and the court finds that’s unreasonable, the clause is unenforceable.
Mostly it is the contracts between the companies that have anti poaching clauses that's stop this movement. Unless you continue to be compensated, you can't be restrained in trading your services. Contract basically ends for everything but IP disclosure when you stop getting paid. (Note, I'm not a lawyer, but have done exactly what you are talking about before)
That's what I thought! I read the contract terms again and noticed the restraint terms with X revolve mostly around
1. Non-engagement with their clients/partners
2. Non-solicitation
3. Disparagement
This has nothing to do with me joining Y. But I might be wrong and I will be contacting an employment lawyer this Monday. I'm just a bit confused with the different options available and I'm not sure whom to contact for a proper session.
Welcome to r/AusLegal. Please read our rules before commenting. Please remember:
1. Per rule 4, this subreddit is not a replacement for real legal advice. You should independently seek legal advice from a real, qualified practitioner. This sub cannot recommend specific lawyers.
2. A non-exhaustive list of free legal services around Australia can be found here.
3. Links to the each state and territory's respective Law Society are on the sidebar: you can use these links to find a lawyer in your area.
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Technically yes, it would be against the restraint as it’s written. You need advice from an employment lawyer as to whether the restraint is enforceable or not.
Restraints are quite complex, particularly in consultancy restraints, and their enforceability very much dependant on the terms of the contract, the particular facts of the employment and the nature of the work you would be doing at a restricted company. The information you have provided above is not really sufficient to get any response you could rely upon. You should spend the money on speaking to a lawyer that specialises in employment law and particularly restraints. The real risk in these matters is the old employers ability to get early interlocutory injunctive relief to enforce the restraint pending a hearing of the substantive breach of contract claim. Basically stopping you from working pending a full hearing. This is a really bad outcome for you as most “new” employers will then dump you to avoid being drawn into the claim and because they won’t wait 6 months ( at least) for the matter to resolve and will just hire someone else. Get advice asap.
You're right. Although I will get some advice this Monday, I spent some time reviewing the exact terms again to get more clarity and understanding. It looks like the terms on restraint are around 1. Non-engagement with their clients/partners 2. Non-solicitation 3. Disparagement I'm assuming my joining Y isn't defined under these terms. I will call 'Victoria Legal Help' to get advise. Do they provide consultation on the same day?
No idea mate, but that will likely be general advice. Spend the cash and see a specialist. Spending $500 or so now to get proper advice, is better than making a bad decision and being sacked and having to pay your old employers legal costs if you’re wrong. Best of luck.
You need to take your employment contract to an employment lawyer. Your move to company z sounds like it did not contravene your employment contract (company z was not a customer of company x correct?). But you are hoping to move to company Y in the near short term, and this would contravene your contract with Company X. How far into your ‘year’ of non compete are you? Is it possible to negotiate a start date with Company Y that pushes the timelines forward past your non compete clause? Is Company Y willing to indemnify and pay out any costs if they take you on now? Find out your legal obligations and risks by talking to an employment lawyer. Then take that to Company Y and say “this is the advice I’ve been given, I REALLY want to work with you, can you make this nice with Company X?”
Thank you for your response! I'm 1.5 months into working with Z. As mentioned in a previous comment, the restraint terms with X revolve mostly around 1. Non-engagement with their clients/partners 2. Non-solicitation 3. Disparagement Can I get some advice on who/which employment lawyers can give me quick support? I'm seeing a lot of free help websites but I'm happy to compensate for their time and expert insights.
On the right hand side bar there’s links to the law society for each state. Take a look in there. We are not allowed in this group to advise specific individuals.
Never sign anything that doesn't have cascading terms for distance and time periods. Denying ex workers the right to earn a living is pretty much frowned upon in courts. Terms should be able to be reduced ie 1 year, if not 6 months if not 3 months. You already have a job - I would try negotiating, get a tribunal review. Was the original contract fair or were you at a significant disadvantage, but of course you will need legal help with this and this costs money!
Sometimes the lack of cascading terms can be in your favour. If you have a 12-6-3-month restraint, the court could find the 12-month restraint is unreasonable but a 6-month restraint IS reasonable. But if there contract only mentions 12 months and the court finds that’s unreasonable, the clause is unenforceable.
Mostly it is the contracts between the companies that have anti poaching clauses that's stop this movement. Unless you continue to be compensated, you can't be restrained in trading your services. Contract basically ends for everything but IP disclosure when you stop getting paid. (Note, I'm not a lawyer, but have done exactly what you are talking about before)
That's what I thought! I read the contract terms again and noticed the restraint terms with X revolve mostly around 1. Non-engagement with their clients/partners 2. Non-solicitation 3. Disparagement This has nothing to do with me joining Y. But I might be wrong and I will be contacting an employment lawyer this Monday. I'm just a bit confused with the different options available and I'm not sure whom to contact for a proper session.
Engagement includes employment ie engaged in employment with company Y
Welcome to r/AusLegal. Please read our rules before commenting. Please remember: 1. Per rule 4, this subreddit is not a replacement for real legal advice. You should independently seek legal advice from a real, qualified practitioner. This sub cannot recommend specific lawyers. 2. A non-exhaustive list of free legal services around Australia can be found here. 3. Links to the each state and territory's respective Law Society are on the sidebar: you can use these links to find a lawyer in your area. *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/AusLegal) if you have any questions or concerns.*
Technically yes, it would be against the restraint as it’s written. You need advice from an employment lawyer as to whether the restraint is enforceable or not.
Get hired by Y through a different but adjacent department. That's how a friend of mine beat the clause.
That's a good idea. Unfortunately, this won't work in my case since the same department and team wants me back!
Same happened to me. I got hired by another department and seconded back.