As the size of your workforce increases, it’s important to ensure that your employees are all hired on terms appropriate for the role they’ll be performing. There are a number of types of employment arrangements for workers in Australia including permanent, fixed-term and casual. The conditions and entitlements your employee will accrue vary depending on the type of award they were hired. You’ll need to ensure that you have correctly identified the relationship you have with your employees so that the terms of their Employment Agreement satisfy the requirements of the Fair Work Act. The requirements for each employee will vary depending on whether their job is subject to an Award. You should, however, also consider how the Employment Agreement can protect your interests as well.

Protection of Your Enterprise

While it is critical to ensure that you afford your staff each of the above minimum requirements, it’s also important that you protect your business if an employee decides to seek employment elsewhere. Throughout the course of their employment, your staff are likely to deal with information that is valuable to your enterprise. This information could be the systems you have in place to provide a particular service, your clients or other confidential information. Your staff may also aid in creating these procedures or other forms of intellectual property. It’s important that you take the opportunity to protect your enterprise by including the following provisions in an Employment Agreement:

Confidentiality Clauses

If your staff deal with sensitive information that you’d like to keep confidential, then you should include a confidentiality clause in the Employment Agreement. Not all information will be treated as confidential – there must be some reason for keeping it out of the public domain. This information can include business ideas, concepts or plans. If a past or present employee is found disclosing this information, then your enterprise is in a stronger position to take steps to limit the damage they’re causing including an injunction prohibiting further discussion of the information or damages.

Non-Compete/Restraint of Trade

Your staff will acquire valuable knowledge during their employment which may tempt them to find other work or start their own company that will compete with your enterprise. A well-drafted Employment Agreement will include terms that restrict your staff from directly, or indirectly, competing with your business. You can base the restraint of trade on geography, time or both. The terms of the restraint must be considered reasonable given the nature of the job and the industry they’re employed in.

Creation of IP

While at work, it is likely that some of your employees will generate content, contribute ideas or some other form of intellectual property that benefits your business. The type of intellectual property will vary depending on the employee’s role. For example, they may write content that’s available on your website (like this article), and you’ll want to ensure that this remains the property of your enterprise even once the employee has moved on. This protects the investment you made in your staff and also means you don’t have to deal with the messy situation of enforcing your exclusive right to use the content.

Key Takeaways

You will have spent a lot of time, money and effort recruiting the right staff to help grow your enterprise. It’s important that you ensure a poorly-drafted Employment Agreement doesn’t risk your interests if an employee decides to move on. If you have any questions, get in touch with our employment law team.

Thomas Richman
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