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SAFEGUARDS AT WORKsimple legal steps to limit your contingent workforce risk
Elizabeth Aitken
AssociateEmployment, Industrial Relations & Safety Law
What?• Confidential Information• Intellectual Property• Customer relationships
Why?• Valuable commercial resources• Case examples of fall out
How?
• Safeguards throughout the contingent lifecycle:• Engagement with supplier / user / contractor• On-boarding• Off-boarding
CONFIDENTIAL INFORMATION
INTELLECTUAL PROPERTY
CUSTOMER RELATIONSHIPS
CONTINGENT WORKFORCE
Provider
UserWorker
commercial contract
employment contract
performance of work
(labour hire - no contract)
CONTINGENT LIFECYCLE
Supplier/host/ contractor engagement
On-boarding
Off-boarding
1: SUPPLIER/HOST/CONTRACTOR ENGAGEMENT
TF Industrial Pty Ltd v Career Tech Pty Ltd & Anor
Define it
Contractual Terms
EXAMPLE SHORT-FORM
For purposes of this Agreement, "Confidential Information" shall mean:
• all trade secrets, proprietary and other information that is disclosed to or acquired by me during or in the course of my engagement that relates to the business of the Principal and is not generally available to the public, or generally known in the [insert] industry;
• customers' identities and requirements, customer lists, suppliers' identities and products, pricing information, product price discount information, manufacturing processes and procedures, new product research, financial information not generally available to the public, and other non public information; and
• any techniques, know how, processes or combinations thereof, or compilations of information, records and specifications, utilized or owned by the Principal, development, marketing, pricing, business methods, strategies, financial or other analyses, policies or business opportunities.
Define it
Use & Disclosure
Contractual Terms
Define it
Use & Disclosure
Conclusion of engagement
Contractual Terms
Define it
Use & Disclosure
Conclusion of engagement
Consequences of breach
Contractual Terms
RESTRAINT OF TRADE
“Reasonable”
Specified period
Specified location
Legitimate business interest
Restricted Activities
Within the following Restraint Area:
Within the following Restraint Period:
Australia
NSW
Metropolitan Sydney
Cascading restraint
12 months
6 months
3 months
The Employee covenants with the Employer that the Employee will not carry on or be engaged, concerned or interested, directly or indirectly, in the capacity specified in para (A) in the business specified in para (B) within the area specified in para (C) for the period specified in para (D).(A) As:
(i) sole trader;(ii) partner;(iii) director or shareholder;(iv) manager;(v) employee;(vi) agent; or(vii) consultant.
(B) The supply of foods of a similar kind to the business of the employer(i) Sale by wholesale of frozen foods…(iv) Sale by wholesale of fresh produce(v) Sale by wholesale of meat(vi) Sale by wholesale of seafood…(xi) Sale of fresh food products in competition with the employer…(xiv) Sale of any food product in competition with the employer…
(C) Within the following areas:(i) the Telstra 0362 area as defined at the commencement date of this contract….(v) 100 kilometres of the Launceston Post Office…(vii) 100 kilometres of the Burnie Post Office…(ix) 100 kilometres of the Hobart Post Office(xi) 100 kilometres of the Devonport Post Office...(xiii) 100 kilometres of the Queenstown Post Office
(D) During the period after leaving this employment by the Employer: as specified in the schedule at Item 8.
THE FLIP SIDE
2: ON-BOARDING
NON-DISCLOSURE AGREEMENT
3: OFF-BOARDING
REMEDIES
*Disclaimer of liability
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