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Answered in 5 minutes by:
7/16/2022
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 36,303
Experience: Family Law, Commercial Law, Property law, Probate & Wills, Employment Law, International Law, Criminal and Traffic Law, Litigation Tribunal & Courts
VerifiedHello, I’m John Melis, a solicitor in Australia, and I’ll be helping you with your question today.
On the facts you have provided the restraint is both broad and narrow, and in some parts you will be restricted with the action you can take, while with other aspects you are ok to act upon.
When considering whether to enforce a restraint of trade clause, the courts will weigh up a number of competing interests including: the employer’s interests in protecting its confidential information, customer connections and other legitimate business interests; the employee’s ability to earn a living using his or her skills, experience and know-how; and the public interest in freedom of trade and competition.
The general rule is that all restraint clauses are void as against public policy unless it can be shown that: the clause protects a legitimate interest of the employer; the clause is reasonable to protect that interest; and enforcement of the clause would not be contrary to the public interest.
A court will not enforce a restraint clause that attempts merely to stifle competition from former employees — the employer must be able to identify a specific business interest which reasonably requires the protection of a restraint clause.
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