Entitlements?

Are restraint of trade clauses in employment contracts valid?

The validity of a restraint of trade depends on the facts of the specific clause(s) in question.

A court begins with the assumption that a restraint of trade clause is unenforceable as a matter of public policy. As stated by the High Court of Australia in Buckley v Tutty (1971) 125 CLR 353 at 380:

“Unreasonable restraints are unenforceable as it is contrary to public welfare that a person should be unreasonably prevented from earning a living in whichever lawful way he chooses and that the public should be unlawfully deprived of his services.”

I have been placed on “garden leave” by my employer

Garden leave is the colloquial term used where an employer does not require you to attend the workplace but will still pay your usual remuneration during the period of garden leave. You remain an employee throughout the period of garden leave.

Casual employment and long service leave

You may be entitled to long service leave as a casual employee.

Under section 56 of the Long Service Leave Act 1992 (Vic), an employee is entitled to 13 weeks of long service leave on ordinary pay on completing 15 years of continuous employment with one employer. Alternatively, under section 58 of the Act, an employee is entitled to an amount of long service leave equal to 1/60^th of the period of his or her continuous employment, if he or she has completed at least seven years but less than 15 years of continuous employment with one employer.

How do I know what award I am covered by?

What an award entails

As defined by Fair Work Australia, an award is an enforceable document containing minimum terms and conditions of employment in addition to any legislated minimum terms. An employee can determine what award applies to them by asking his or her employer, contacting Fair Work Australia or consulting with an employment lawyer. Essentially, an award stipulates the bare requirements that are to govern the employment. As such, the terms of the award are superimposed upon any written employment contract.

What notice does my employer have to provide me with when I am dismissed?

When you enter into a contract of employment, the contract (theoretically) runs forever. This is clearly not practical and often contracts include a termination clause allowing for the contract to come to an end in certain circumstances.

Do courts and tribunals provide legal advice, and should I refer to the courts and tribunals as my first port of call?

Courts and tribunals are not permitted to provide legal advice but often fail to point that out to you.

Courts and tribunals can be helpful in telling you what forms you must complete and timelines for action. If you make a mistake the court or tribunal is generally not held responsible. If, for example, you follow the advice from Fair Work Australia and you bring an unfair dismissal claim when you should have brought a protected action claim you cannot blame Fair Work Australia for your mistake, even if it has dire consequences for you.

General Information – Case Law References

Lawyers using this site will understand the reliance upon case law throughout the site. If you are not a lawyer please be aware that we refer to the case law for the simple reason that it will allow you to do what lawyers do, read decided cases for guidance and assistance. We are not attempting to turn the site into an encyclopaedia so we refer to only some cases. Refer to libraries, including online libraries maintained by the courts and tribunals for other cases – for example: http://www.austlii.edu.au/.