intellectual-property software australia human-rights victoria
Australian laws to protect employees general skills against IP claims
<p>I live in Victoria, Australia. When signing a contract for software development industries, the employers tend to write the contract agreement conditions too broad to protect their IPs. When searching online, all contents I find are for protection of the companies than the rights of the employees. I believe, even if a contract applies a condition that is against employee's right, they will not be enforceable through law. Please correct me if I am wrong. My concerns are about how much companies can take over their employee's future work after termination of their contract?</p>
<ol>
<li><p>Can a contract prevent the employee to join another company using similar technologies after contract termination?</p>
</li>
<li><p>Can a contract broadly take over book/publication of the employee after contract termination within a period?</p>
</li>
<li><p>Can a contract prevent an employee to found their own company after the contract termination?</p>
</li>
<li><p>Can a contract take over general skill of the employee after contract termination?</p>
</li>
<li><p>Can a contract go after employee's work for another company or a company founded by the employee after the termination of the contract?</p>
</li>
<li><p>Can a contract take over intellectual property that is out of scope of the company during the employment? For example a automotive software company run after your dancing youtube video that creates a good money.</p>
</li>
</ol>
<p>If there are laws to prevent such abuses by the employment contracts please address them (Addressing each item separately is highly appreciated).</p>

<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a></p>
<blockquote>
<ol>
<li>Can a contract prevent the employee to join another company using similar technologies after contract termination?</li>
</ol>
</blockquote>
<p>Yes. This is referred to as a <a href="https://www.gotocourt.com.au/civil-law/vic/restraints-of-trade/" rel="nofollow noreferrer">restraint of trade</a> clause.</p>
<blockquote>
<p>For the restraint clause to be enforceable, it needs to be “reasonably necessary” in the circumstances to protect the “legitimate business interests” of the employer.</p>
</blockquote>
<p>The nature of the employment relationship and the geographic and temporal scope are all factors in this. Generally, the employee must have some ‘secret’ knowledge - client lists, IP, business plans etc. and the geographic and time restrictions need to be as short as possible to protect the legitimate business interests. A restraint of trade clause on an auto-mechanic is unlikely to be enforceable, one on an ASX 200 company CEO almost certainly is.</p>
<blockquote>
<ol start="2">
<li>Can a contract broadly take over book/publication of the employee after contract termination within a period?</li>
</ol>
</blockquote>
<p>Unless otherwise agreed, everything an employee produces in the course of their employment belongs to their employer. This is the essence of an employment contract - the employee gets paid, the employer gets the production. It doesn’t matter if what’s produced is a good, like a table, a service, like a haircut, or IP like a literary work or a client relationship.</p>
<p>What they produce outside the employment - before, after, or not in the course of it - does not belong to the employer.</p>
<p>If someone publishes a book using someone else’s IP then the owner can take various actions including an <a href="https://en.wikipedia.org/wiki/Account_of_profits" rel="nofollow noreferrer">account of profits</a> and an injunction to stop. Just like if the table-maker was selling the employer’s tables or the hairdresser was pocketing the client’s fee, you can’t take things that don’t belong to you.</p>
<blockquote>
<ol start="3">
<li>Can a contract prevent an employee to found their own company after the contract termination?</li>
</ol>
</blockquote>
<p>Yes. See point 1.</p>
<blockquote>
<ol start="4">
<li>Can a contract take over general skill of the employee after contract termination?</li>
</ol>
</blockquote>
<p>No.</p>
<p>Skills, even highly specialised skills, belong to the employee even if acquired at the cost of the employer. Similarly, for general knowledge.</p>
<p>Trade secrets are different, things like a client list, KFC’s 11 herbs and spices etc. can’t be used by an ex-employee.</p>
<blockquote>
<ol start="5">
<li>Can a contract go after employee's work for another company or a company founded by the employee after the termination of the contract?</li>
</ol>
</blockquote>
<p>Generally not. The employment contract binds the employer and the employee and due to the doctrine of private it cannot affect the rights and obligations of third-parties. If the ex-employee has breached their contract, the employer’s beef is with them, not anyone else.</p>
<p>However, if the third-party has breached IP law, e.g. by using patented information supplied by the ex-employee, then they can be sued for that.</p>
<blockquote>
<ol start="6">
<li>Can a contract take over intellectual property that is out of scope of the company during the employment? For example a automotive software company run after your dancing youtube video that creates a good money.</li>
</ol>
</blockquote>
<p>No. As stated in point 3., your employer owns what you produce “in the course of your employment.”</p>
