Enforcing restraint of trade australia

Restraint of trade clauses are complex and can be costly to enforce. It is, therefore, best practice to have well-drafted clauses within your employment agreements. If an ex-employee breaches their restraint clause, you can send them letters outlining their obligations and ask them to sign an undertaking to cease their breach. As a last resort, you can resolve the matter by going to court and.

What is a restraint of trade?

Is restraint of trade clause enforceable? How long do restraints of trade last? By Bradley Workman-Davies, Director and Megan Livingstone, Candidate Attorney. RESTRAINTS OF TRADE. This decision shows that the potential inconvenience suffered by the former employee is not superior to a former employer’s right to enforce the restraint.

The purpose of enforcing a restraint of trade clause is to protect an employer’s proprietary interest. These interests are usually in the nature of confidential trade secrets, know-how and pricing or customer connections. No poaching and recruitment clauses.

Non-solicitation clauses. Confidentiality clauses. For example, a court won’t enforce a clause that unfairly interferes. Enforcing a restraint of trade clause.

For an employer to enforce a restraint of trade there must be a specific restraint of trade clause in the employment agreement. Even if there is such a clause in the employment agreement, it may not be enforceable. No doubt enforcing a restraint of trade is a costly exercise, requiring significant time of sober reflection and consideration of a number of particular matters. Conversely, all of this usually must be done urgently, and requires a costly commitment by the employer in terms of legal costs and energy.

Employers commonly include restraint of trade clauses in contracts of employment to seek to protect themselves from their employees poaching their clients or staff, or for working for a competitor. At common law, restraints. For a restraint of trade clause to be enforce it must be reasonable in the circumstances. If the court finds that the restraint goes beyond providing your business with adequate protection, it will not enforce the clause. The idea is to present a broad overview of when a restraint may apply and in what circumstances a court will enforce it.

However, please note that the specific circumstances of your employment will determine whether a restraint of trade is enforceable or not. If you are facing a restraint of trade dispute, you should seek independent legal. Coincidentally, all three involved restraints within the media and advertising.

As to the interests of the public, the onus is on the party which is subject to the restraint to. The reasonableness of a restraint is usually judged at the time the contract is made and primarily relates to the length of the restraint , the geographical area in which the restraint operates and the restrictions that are imposed on the employee. All these should be no wider than necessary to protect the employer who must be able to demonstrate that it has an interest worth protecting.

The contract in which the restraint was included had been executed in Connecticut in the US and so the first question was whether it could be enforced in Western Australia. The answer was yes, but in the context of the case, an application for an injunction, the issue of the enforceability of the restraint clause (ie its validity) was a matter for a Western Australian judge to determine in.