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The Effectiveness of Restraint Clauses

Posted on June 7, 2017 by Ashley Dawson

With increasing reliance on restraint clauses in employment contracts, understanding the enforceability of a restraint is imperative. At common law a restraint of trade clause will be enforceable where it is deemed reasonably necessary to protect the legitimate business interests of the employer. While ‘reasonableness’ is circumstantial, there is considerable case law to assist employers in ensuring the efficacy of a restraint of trade clause.

The Basic Principles Governing Restraints

Post-employment restraints will generally impose restrictions against competition, solicitation of clients, solicitation of employees, and the disclosure of confidential information. Establishing that the restriction is reasonable and in the interests of the parties will be determined by considering the circumstances at the date of the employment agreement. In general terms, factors that will be taken into consideration include:

  • The nature of the business;
  • The nature of the particular employee’s position; and
  • Whether the employee has access to confidential information of the employer.

It is the person seeking to enforce the restraint- the employer, who bears the onus of proving that the restraint is reasonable. The protection conferred from a restraint must be no more than ‘adequate protection’. A restraint which exceeds the level of protection that is justified, will be unreasonable and void.

Unreasonable Restraints

In the recent case of Just Group Ltd v Peck[1], the CFO of clothing group, Just Group Limited (‘JGL’), informed her employer of her intention to commence employment as General Manager, Finance and Treasury for competitor, Cotton On Group Services Pty Ltd (‘Cotton On Group’). JGL subsequently commenced proceedings in the Supreme Court of Victoria for an injunction.

The restraint clause restricted the CFO from engaging in restricted activity- activity the same or similar to JGL, or activity on behalf of an entity provided in an annexure to the contract- in the geographical region, for a restricted period.

The Annexure contained a list of 50 entities, and included Cotton On Group. The geographical region and restricted period were defined as cascading provisions, and restrained the CFO from commencing employment with a restricted employer in Australia and New Zealand for a maximum period of up to 24 months.

JGL argued that the restraint was necessary to protect their confidential information, which was defined in the employment contract as “all information regarding the businesses of JGL”.

Justice Michael McDonald held that the restraint was unenforceable as it went further than what was considered reasonable to protect the legitimate interests of JGL. Justice McDonald held that the proper construction of the clause restrained the CFO “from engaging in any employment, including employment in a position in which confidential information obtained by her would be of no relevance to a new employer”.

Justice McDonald further held that the ranging period from 12 to 24 months were “unreasonable because of the disparity with the one-month notice period, or payment in lieu, upon which [the CFO’s] employment could have been terminated during the first six months of her employment”. In the circumstances this disparity was held to be relevant to determining the reasonableness of the restraint:

“…on the one hand, JGL reserved to itself the right to terminate [the CFO’s] employment on one month’s notice within a short period of her commencing employment. On the other hand, it reserved to itself the right to impose wide ranging restrictions upon her capacity to earn a livelihood for a period of 12 months”.

What is deemed ‘reasonable’?

In the case of Cactus Imaging Pty Limited v Glenn Peters [4] it was held that a restraint was enforceable as it was necessary to protect the confidential information of the employer. In this case a former sales manager commenced employment with a major competitor of the company.

The relevant restraint clause prevented the employee from disclosing any confidential information to other persons, carrying on, or engaging in, a business in competition with the company; soliciting clients; or poaching employees for twelve months after employment ended.

Justice Brereton held that the possession of confidential information would give the competitor a significant commercial advantage in winning work from the employer. The length of the restraint was deemed to be reasonable as it was held that the information would remain relevant during this time.

Similarly, in Birdanco Nominees Pty Ltd v Money [5] the Victorian Supreme Court of Appeal held that a restraint restricting a former employee of an accounting firm from providing accounting services to a client of the employer was valid. The restraint provided that for three years, the employee did not provided services to a client with whom he had provided services for during the three years prior to the termination of his employment. The court held that the restraint was reasonable on the basis that it protected a valid interest, being the trade connection and the goodwill of the company. In determining that the restraint was enforceable, the Court found that the employee had obtained a significant understanding of the clients bookkeeping procedures and financial affairs throughout his tenure with the company.

Drafting a Restraint Clause

Key considerations when drafting a restraint clause include:

  • Ensure the restraint is tailored to the employee’s individual circumstances. The restricted activities should be related to the employee’s activities in their position with the employer. Furthermore, the restraint period should correspond with the employee’s position, seniority, knowledge and access to confidential information;
  • Ensure your protected interests are legitimate;
  • Ensure that the restrained period and geographical area are no more than ‘adequate protection’ of the business’ interests. The time and geographical parameters should not be aimed merely at protecting competition;
  • Undertake a review of restraint provisions when reviewing or renewing employment contracts.

If you are considering putting restraint clauses either in your employment contracts or business sale contracts, please contact our office and we can facilitate the drafting of the clauses with one of the law firms in our referral network.

Q & A – CGT Main Residency Exemptions

Posted on by GSCPA Admin

In general, your main residence (your home) is exempt from Capital Gains Tax (CGT). There are some questions however which clients must consider when selling their single largest asset.

When is the disposal of a ‘dwelling’ exempt from CGT?

The disposal of a dwelling is exempt from CGT if you’re an individual and the dwelling was your main residence during your ‘ownership period’. When considering whether a dwelling is your main residence, the following factors may be relevant:

  • The length of time you live there – there is no minimum time a person has to live in a home before it is considered to be their main residence;
  • Whether you’re family lives there with you;
  • Whether you have moved your personal belongings into the home;
  • The address to which your mail is delivered;
  • Your address on the electoral roll;
  • The connection of services (for example, phone, gas or electricity).

What if the dwelling was my main residence for only part of the time?

If a CGT event happens to a dwelling you acquired on or after 20 September 1985, and that dwelling was not your main residence for the whole time you owned it, you receive only a partial exemption. This partial exemption is calculated by dividing the number of days in your ownership period when the dwelling was not your main residence by the total number of days the dwelling was owned.

For example:

Andrew bought a house on one hectare of land under a contract that was settled on 1 July 1990 and moved in immediately. On 1 July 1993, he moved out and began to rent out the house.  A contract for the sale of the house was signed on 1 July 2015 and settled on 31 August 2015 and Andrew made a capital gain of $100,000. As he is entitled to a partial exemption, Andrew’s taxable capital gain is as follows:

$100,000          x          8,098/9,194          =           $88,079

If you start using part or all of your main residence to produce income for the first time after 20 August 1996, a special rule affects the way you calculate your capital gain or capital loss. In this case, you are taken to have acquired the dwelling at its market value at the time you first used it to produce income.

For example:

Erin purchased a home in July 2000 for $280,000. The home was her main residence until she moved into a new home on 1 August 2003. On 2 August 2003, she commenced to rent out the old home. At that time, the market value of the old home was $450,000. On 14 April 2016, Erin sold the old home for $496,000. Erin is taken to have acquired the old home for $450,000 on 2 August 2003 and calculates her capital gain to be $46,000.

Can I move out of my main residence but return later and still call it my main residence?

For the purposes of capital gains tax and the main residence exemption it is important to note that when you choose to treat a dwelling as your main residence after you move out you cannot treat any other dwelling as your main residence for that same period of time.

If this dwelling is then used to produce income (for example, as an investment property) you can choose to treat it as your main residence for up to six years after you cease living in it.

You are entitled to another maximum period of 6 years each time the dwelling again becomes and ceases to be your main residence. This means that if you move back into the property before the first six-year period of absence has expired, then the six-year rule starts again.

The ATO does not specify a minimum length of time you are required to live in the dwelling to re-establish the property as your main residence in order to reset the six-year absence rule. Determining if a dwelling is your main residence is always going to be based on the individual circumstances and facts of each case

Do CGT exemptions apply to adjacent land?

A CGT exemption will apply for up to 2 hectares, including land under the dwelling. The adjacent land must be used primarily for private or domestic purposes in association with the dwelling. It must be noted that the land does not have to directly adjoin the dwelling but it must be disposed under the same CGT event as the dwelling. Any land that is beyond 2 hectares will not be exempt from CGT.

 

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