4.8

Google Reviews

Need Help? Contact An Australian Business Lawyer Today 1300 003 077
Search
Close this search box.

Restraint of Trade for Independent Contractors

Reading time: 8 mins

Restraint of trade clauses in Australia are contractual provisions that limit individuals’ ability to engage in certain activities post-contract termination. These clauses are subject to various factors such as reasonableness and protection of legitimate business interests to determine their enforceability.

This article delves into the enforceability of restraint of trade clauses concerning independent contractors in Australia and the factors corresponding to it.

What are Independent Contractors?

Independent contractors in Australia are individuals who work for themselves and are not considered employees. They are engaged by businesses to provide specific services or complete projects on a contractual basis.

Independent contractors have more control over their work and handle their own taxes, insurance, and superannuation, unlike employees.

They do not have entitlement to benefits such as sick leave, annual leave, or redundancy pay. The company hires independent contractors for a specific time or project, and they are not permanent employees.

Examples of Independent Contractors

  • Independent contractors in the construction industry work on projects such as building, renovation, and infrastructure development.
  • IT professionals, including software developers, consultants, and system administrators, often work as independent contractors.
  • Musicians, filmmakers, writers, and other artists who provide their services independently fall into this category.
  • Gig workers for ridesharing and food delivery apps, such as Uber and DoorDash, are independent contractors.
Restraint of Trade

Is Restraint of Trade Enforceable?

The enforceability of restraint of trade clauses is subject to various factors, including the reasonableness of the restrictions and the protection of legitimate business interests.

Employment contracts commonly use restraint of trade clauses to protect confidential information, trade secrets, and client relationships. These clauses aim to prevent employees or independent contractors from competing with their former employer or engaging in activities that may harm the employer’s business interests.

To be valid, trade restriction clauses must be reasonable in how long they last, where they apply, and what they limit. Australian courts will examine these clauses.

They will consider factors such as the nature of the business. They will also look at the role of the employee or contractor. Finally, they will assess how the clauses could impact competition. You should seek legal advice to effectively draft and negotiate these clauses.

Case discussion

The case discussed in the text involves the enforceability of a restraint of trade clause in the contract of an independent contractor. Wallis Nominees Pty Ltd. (DWS) engaged the contractor, Pickett, to work for one of their clients, Grocon. After resigning from DWS, Pickett accepted a position as the operations manager of Grocon.

DWS sought to enforce a restraint of trade clause in Pickett’s contract, which prohibited him from providing services to any of DWS’ clients for 12 months after termination or resignation. However, the court ruled that the restraint clause was invalid and unreasonable. The court found that the clause went beyond what was necessary to protect DWS’ client relationships and that Pickett did not have access to any trade secrets or confidential information of DWS.

The court also rejected DWS’ argument that the unreasonable parts of the clause could be severed, as the clause did not include alternative provisions for such severance. This case demonstrates the challenges of enforcing rules against competing with your employer when contractors have strong client relationships. Contractors often have close ties with clients, making it hard to prevent them from competing.

This difficulty highlights the complexity of enforcing such rules in these situations. It can be a struggle to ensure contractors do not engage in activities that go against their employer’s interests.

In summary, the case emphasizes the importance of drafting reasonable and clear restraint of trade clauses that are tailored to the specific circumstances of the industry and the employment relationship.

Restraint of Trade

Informax International Pty Ltd v Clarius Group Limited [2012] FCAFC

Informax, the appellant, was a recruitment and consulting company based in Australia. Clarius Group Limited (“Clarius”), the defendant was also in the recruitment industry and operated several subsidiary companies.

Informax entered into an agreement with Clarius, under which Informax provided recruitment services as an independent contractor to Clarius. Clarius wanted Informax to supply an IT contractor to Woolworths. However, the agreement contained a restraint of trade clause that prohibited Informax from engaging in similar business activities for a specified period after the termination of the agreement.

After the agreement between the appellant and the defendant was terminated, the appellant continued to operate in the recruitment industry, and allegedly in breach of the restraint of trade clause by joining a competitor IT company.

In this case, the question is whether Informax was subject to enforcement of the restraint of trade clause.

The court found that a six-month restraint imposed by Clarius was unreasonable for an employer-contractor relationship. Although the restraint was not entirely struck down, it was read down to apply for only four weeks once the Clarius contract came to an end.

The court decided that the restriction in the Clarius-Informax Contract was only valid for four weeks. This was because there was no confidential information, low training costs, and a risk of Informax taking Woolworths’ customers. Therefore, while they did not fully enforce the restraint, they significantly limited its duration.

Key Takeaways

  • The enforceability of such clauses is subject to factors like reasonableness, protection of legitimate business interests, and the nature of the business. Australian courts will assess the duration, scope, and impact on competition of these clauses.
  • Seeking legal advice when drafting and negotiating restraint of trade clauses is important. This will ensure that the clauses are enforceable and provide protection for confidential information, trade secrets, and client relationships.
  • The cases discussed highlight the challenges and complexities involved in enforcing restraint of trade clauses against independent contractors.

Frequently Asked Questions

What is the difference between an Independent Contractor from an Employee?

Independent contractors negotiate their own fees and working arrangements and can work for multiple clients. Employees on the other hand typically have fixed working hours and pay rates set by their employer.

Contractors have control over how they perform their work, while employees perform duties as directed by the employer. Contractors usually provide their own tools and equipment while employees are provided these by the employer.

Contractors invoice for their services and handle their own tax and superannuation. Employees receive regular wages and benefits like sick leave and superannuation contributions from the employer.

Sham contracting refers to a situation where an employer misclassifies a worker as an independent contractor instead of an employee. Employers often misclassify workers to avoid providing employee entitlements such as sick leave, superannuation, and other benefits.

Key indicators of employment status are employer control, tools provided, set hours, and pay rates. These factors determine if a worker is an employee. Despite being labeled as independent contractors, these workers may effectively function as employees, leading to potential legal and financial consequences for the employer.

The governing law for Independent Contractors in Australia is Independent Contractors Act 2006.

About the Author

Angelie Opalla
Angelie joined Prosper Law in 2022 as a Senior Paralegal, assisting with legal documents. Admitted to the Philippine Bar in 2023, her experience spans across firms in the Philippines and the US.

Contact an Australian Business Lawyer Today.

Contact us for a free consultation
Contact Us For A Free Legal Consultation
About Prosper Law

We provide legal advice to business and individuals across Australia, no matter which State or Territory you are located. Our easy-to-access, online legal services mean that you can talk to our lawyers wherever you are, at a time that suits you.

4.5

Google Reviews

Get Your Free Guide Now
Need Legal Assistance?

Don’t hesitate – reach out for your free legal assistance today. Your peace of mind is just a click or call away!

Check Out Our Latest Blog Posts

Carlynn is a Senior Paralegal at Prosper Law and is finishing a JD in Law in the Philippines
Employment

The Right to Disconnect from Work

The right to disconnect is now part of Australian law. The right to disconnect will start in 2024 for large employers and in 2025 for small employers. There are some

Online Legal Advice
Employment

Restraint of Trade on Managerial Positions

Employers set various employee restrictions to avoid legitimate impediments and losses and to protect their businesses and commercial assets. Restrictions should follow the law and consider both the employer’s interests