Practical Employment Law In Australia Samples †MyAssignmenthelp.com

Question: Discuss about the Practical Employment Law In Australia. Answer: In Australian, theEmployment Law comprises a Unique combination of many laws includes local law, the common wealthlaw and common laws which are deprived from UK as updated and modified in the court of Australia. The relationship between the employee and employer is also governed by this complex legislative and regulatory structure which contains Acts, Rules and industrial devices for example agreements of enterprises and modern awards. A number of important modifications have been made over the last twenty centuries in regulatory framework of center and state hence The Australian employment law developed a unique structure which is totally different from other countries (International Comparative Legal Guides. 2017). Generally, in Australia under employment law employer at time of making contract of employment impose some obligations upon their employee by entering the limitation clause in such contract. These clauses limit the present and ex-employees from taking any action which ma y be damage the goodwill of the employers business (Chamberlains. 2016). Generally, all the boundation imposed on the employees actions through agreement of the employment is considered as post a termination restrictive covenant. These restrictive covenants limit the capacity of an employee to create his own idea of business which is in restrictive territory or may limit the employee not communicate with the former employers possible clients, and employees (Osborn Law 2015). Such restrictive clauses will be applied on the employee during the time of employment or at the time when service comes to an end. There is also theory known as deontology as per this theory every person should comply their duty else such person can be penalized Thus, the employee may be bound by several clauses included in their contract of employment which may comprises many expressed and implied responsibilities and duties The implied duty of the employee is related to loyalty which is known as duty of good faith in which employee requires to do action in a good faith if an employee takes an action which is against the interest of his employers business such conduct will be considered as breach of duty. On the other hand expressed duties mentioned in the contract of the employment may limit the employee to establish his own business that is in direct competition with employers business at the time of service or at the time of termination. There is so theory known Ethical Egoism as per this theory if any employee is taken action which is in favor of businesss interest then it will be considered as ethical. It may be observed that in the Australia the employers impose restrictive clause on their employees for the security of their businesss good will at the time when service comes to an end. Imposing limitation on the employee for the business benefit will considered ethical. Further It can be said that it will be the duty of an employer to determine that they have adequate protection in order to protect their private details, intellectual property rights and avoid such leaving employee who might cause crucial loss to the employer s business. The situation when loss arises where an employee through the private essential details establishes the business that too direct in the competition with the employers business and compel the employers client to do deal with them. For the protection from such damages a contract related restraint of trade must be made by employer at the time of employment in the employees contract International (Comparative Legal Guides 2017). But on the other hand generally the clause in the contract related to restraint of trade considered as void and unenforceable in the eye of law unless the employer proves that such restriction is reasonable and necessary in order to protect the interest of their company. The employer has no right to use this limitation to protect their business from process of fair competition in a market and also the obligation to show the necessity and reasonability of such restriction will be on employer. Necessity and reasonability that is usually determined as the support system for the lawful restraint contains the private details of the employers business goodwill and other employee of the business. It must be taken into account that the employees information of private details and business secret is totally different from general details and the skills with which they work. According to the Australian court a clause which limits the employee to create his own business which is in the competition with their employers business will be for the duration between 3 to 12 months (Workwise 2015) Further it is necessary to include restrictive clause in contract of employment as there be integral security in order to protect the private information of the employers business because in the absence of restrictive law in the contract an employee can easily misuse the private information for their benefit. Hence if an employer wants to secure their business then such employer has to create a reasonable limitation in employment of contract thus it is lawful as well ethical to include restrictive clause in the employment contract to restrict the employment from taking any action which might be harmful for employers business. In order to determine that particular the reasonability of the limitation clause some factor should be taken into account the first factor is to d etermine whether such restriction clause in employment contract is reasonable that is to see the need of such clause as it is necessary to protect the good will of business and responsibility to include this impose upon the employer. Thus limitation clause in the contract is not introduced to defend the employers business from healthy competition from ex-employee (Anderw Jewell. 2017). This permits any ex-employee to use knowledge in a healthy way for his own business which he learnt in the time period of his services with his employer. Other important element which can be considered in recognizing a valid restraint of trade provision contains time period for such restriction, the territory in which employee may set his business, the possibility of the action being limited, etc.no actual rules that what is reasonable in limitation clauses is does not exist its depend on cases matters. Further breaking restriction of trade provision is mainly a breaking of a contract. But if the court recognized that such provision was not reasonable and there was no need of imposing such clause on employee then court will considered it unlawful and void and such clause will not bound the employee. Though, if the court finds that such limitation clause is necessary in order to protect employers business from the damage and its reasonable then such employee can be set to have committed breach of contract. And will order to give damages in the case of Ross and Anor v ICETV(2010) NSWCA 272, the court held that the employees were responsible to breach the limitation clause as such clauses were reasonable and they were ordered to give compensation to previous employers for the damages. Certain clauses are mentioned in this way that they offers to employee many options like time period, geographic area and type of the behavior to be limited these clauses generally mentioned in the cascad ing restraint clause the employer get benefit from these clause that the court at the time of decision considered them reasonable as within the choice to enforce unlike to single limitation clause which usually considered void and left the employer without protection for their business. In the case of OAMPS Insurance brokers Ltd v Hanna [2010] NSWCA 781 the court held that such clauses are lawful if they are reasonably imposed on employees. Yet another theory utilitarianism which supports free trade practices according to utilitarian perspective the free trade is greatest policy by which all employers as well as employee get the benefit in business. This theory provides vast majority advantages to all people. According to this theory the unrestrictive free trade is a best policy which protects individuals. Further it must be observed that in order to impose the restriction on employee not to establish the business against the employers business should be reasonable and it should be for the fixed time period after his resignation from such company so employee can established his own business in order to earn money and does not face the unemployment after the resigning from such company. Also there should be legitimate cause for such restrain over employees. In the case Buckley v Tutty [1971] 125 CLR 353 at 380 the court held that Unreasonable restraints are not enforceable in the eye of law in which the employee is unreasonably prevented from creating his own business. It is violating to the public welfare. Epichealth Pty Ltd v Peng-Kung Yang [2015] VSC 516 in this case court held that limitation clause will not prevent the employee to create the his own business if its not reasonable. A restrictive trade clause will be considered valid it is necessary to protect the good will of business and reasonable Hence It can be concluded for the determine the fact weather restrictive employment agreement is lawful and ethical the law should considered these three ethics of business deontology which direct the person to comply with their duty so all the employee and employer should abide by their duty else they can be penalized. Ethical egoism in which any person take an action for the business interest it can be considered as ethical so imposing the limitation clause on employee is ethical for benefit of the business and at last utilitarianism which support the free trade policy by which every person will get benefits in business it the only theory which does not breach individual rights hence restriction of trade is ethical and lawful but such limitation should be reasonable and also for the interest of the business. Bibliography Anderw Jewell. 2017. Restraints of Trade: non-compete clauses, are they reasonable?. https://insightsresources.seek.com.au/restraints-trade-non-compete-clauses-reasonable Buckley v Tutty [1971] 125 CLR 353 at 380 Chamberlains. 2016. Restraint of trade clause in employment contracts. https://www.chamberlains.com.au/restraint-of-trade-clauses-in-employment-contracts/ Epichealth Pty Ltd v Peng-Kung Yang [2015] VSC 516 Fare work center. Restraints of trade- A Summary. https://www.fairworkcentre.com.au/newsblog/Employer-Tips/Restraints-of-Trade---A-Summary/ International Comparative Legal Guides. 2017. Employment Labour Law 2017. https://iclg.com/practice-areas/employment-and-labour-law/employment-and-labour-law-2017/australia OAMPS Insurance brokers Ltd v Hanna [2010] NSWCA 781 Osborn Law. 2015. Restraint of trade. https://www.google.com.au/url?sa=trct=jq=esrc=ssource=webcd=7cad=rjauact=8ved=0ahUKEwiy5JLfoLjWAhUBLY8KHXMFAfUQFghIMAYurl=http%3A%2F%2Fwww.osbornlaw.com.au%2Frestraint-of-trade%2Fusg=AFQjCNHrzS9VPkYg-kIz_HIJ540JlOdYgA Ross and Anor v ICETV(2010) NSWCA 272 Workwise. 2015. Post Employment Restraint Update. https://workwiseadvisory.com.au/post-employment-restraint-update/