Ethical and Legal Restraints of Trade


Added on  2020-03-23

8 Pages1932 Words226 Views
Running Head: PRACTICAL EMPLOYMENT LAW Practical Employment Law In Australian, the Employment Law comprises a Unique combination of many laws includes local law, the common wealth law and common laws which are deprived from UK as
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PRACTICAL EMPLOYEMNET LAW 1updated 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 may be damage the goodwill of the employer’s business (Chamberlains. 2016). Generally, all the boundation imposed on the employee’s 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 employer’s 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 employer’s business such conduct will be considered asbreach of duty. On the other hand expressed duties mentioned in the contract of the employment
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PRACTICAL EMPLOYEMNET LAW 2may limit the employee to establish his own business that is in direct competition with employer’s 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 business’s 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 business’s 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 employer’s business and compel the employer’s 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 employee’s 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 employer’s business goodwill and other employee of the business. It must be taken into account
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