Perspectives from Intellectual Property, Labour, Competition and Corporate Law
Edited by Marilyn Pittard, Ann L. Monotti and John Duns
Chapter 22: Devices to restrain competition and protect confidential information in employment – practical and legal aspects: an Australian perspective
The combined operation of the common law, equity and statutory law automatically extend to an employer, without the need for any contractual devices, a range of rights that restrain competition and protect confidential information. However, to the extent that these rights are limited, an employer by contract can augment their scope and application. An enhanced protective regime based on contractual devices can widen the protection of confidential information, restrain employment and post-employment activities, require an employee not to work (garden leave) during an extended period of notice of termination, assign owner- ship of intellectual property to the employer and require an employee to disclose conflicts of interest, an interest held in competitors or the development of ideas or concepts for products or services. In Australia there is an important policy debate on the use of devices, which extends to the allocation of the benefits of worker innovation, the ownership of human capital and the in terrorem effect of contractual devices. This chapter, however, focuses on the practical legal aspects of the use of devices from an Australian perspective and, in particular, from the point of view of an Australian legal practitioner.
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