Table of Contents
Answer (i): 3
Answer (ii): 4
Answer (iii): 5
REFERENCES: 11
Answer (i):
PERMANENT INJUNCTION
Permanent Injunction refers to the final order of a court which refrains a person or entity from doing a certain set of activities permanently. A permanent injunction is different from a preliminary one where an order is issued by the court pending the result of an ongoing lawsuit or petition praying for a permanent injunction.
EQUITY
Courts are allowed and permitted to use their own discretion and adjudge in accordance with the rules of natural law and to decide the difference between law and equity is the right of the jury. When monetary damages are claimed the person, he is entitled to a trial by the jury in case the amount exceeds one specified by the statute. Whereas, on the other hand, when a non-monetary relief is being seeked, the case is supposed to be adjudged by a single judge and not by a trial. In cases where both monetary and equitable relief is claimed then in such a case, a jury will be in charge of adjudicating the issue involving monetary relief and a single judge will be in charge of adjudicating the one involving the other issue. While dealing with cases based on equity, the judges are usually guided by precedents but they are free to adjudge as exercising their discretion and they can rule contrary to the precedent.
AGENTS
An agent is a person who is given the authority to act for another (i.e., the principal). Such authority can be granted through employment, by contract or apparent authority. The relevant point here is that the agent can bind the principal by contract or create liability if he/she, while acting in the agency, cause an injury. The question as to whether a person is acting in an agency or not is one to be decided on facts.
Answer (ii):
REMEDIES
In the event of a breach or threatened breach by the Employee of any of the provisions of this Agreement, the Employee agrees that the Employer is entitled to a permanent injunction, in addition to and not in limitation of any other rights and remedies available to the Employer at law or in equity, in order to prevent or restrain any such breach by the Employees or by the Employee’s partners, agents, representatives, servants, employees, and/or any and all persons directly or indirectly acting for or with the Employee.
If the Employee (i.e., a party to the contract) either actually acts against, or threatens to act against one or more of the provisions of this agreement, the Employer (the other party to the contract) has the right to ask the court to pass an order to refrain the Employee from doing the same separately or along with the other remedies available to the Employer whether in Australian Codified Law or in equity in order to prevent the speculated breach by the Employee or by his partners, agents, representatives, servants, employees or anybody else who is either directly or indirectly acting on behalf of the Employee.
Answer (iii):
Term: JOB TITLE AND DESCRIPTION
3. The Employer agrees to employ the Employee as a ____________________. The Employee will be expected to perform the following job duties: ____________________________________________________________
4. The Employee agrees to be employed on the terms and conditions set out in this Agreement. The Employee agrees to be subject to the general supervision of and act pursuant to the orders, advice and direction of the Employer.
5. The Employee will perform any and all duties that are reasonable and that are customarily performed by a person holding a similar position in the industry or business of the Employer.
6. The Employer cannot unilaterally and significantly change the Employee's job title or duties. The Employer may make changes to the job title or duties of the Employee where the changes would be considered reasonable for a similar position in the industry or business of the Employer. The Employee's job title or duties may be changed by agreement and with the approval of both the Employee and the Employer.
7. The Employee agrees to abide by the Employer's rules, regulations, and practices, including those concerning work schedules, vacation and sick leave, as they may from time to time be adopted or modified.
Rule 1: Since the term mandates the consent of both the Employer and the Employee for significantly changing the Employee’s job title or duties, it is essential to the contract.
Rule 2: Since the term forms an essential part of the contract considering the contract as a whole, the breach of this term will result in breach of the contract as a whole.
The job profile and terms of employment are an indispensible part of the contract, and non-compliance can amount to a termination of the contract along with the claim for damages.
Therefore, the given term is stipulated as a condition in the contract.
Term: EMPLOYEE COMPENSATION
8. Compensation paid to the Employee for the services rendered by the Employee as required by this Agreement (the -Compensation-) will include a wage at the rate of $0.00 (AUD) per hour as well as any compensation paid for Overtime Hours.
9. This Compensation will be payable twice per month while this Agreement is in force. The Employer is entitled to deduct from the Employee's Compensation, or from any other compensation in whatever form, any applicable deductions and remittances as required by law.
10. The Employee understands and agrees that any additional compensation paid to the Employee in the form of bonuses or other similar incentive compensation will rest in the sole discretion of the Employer and that the Employee will not earn or accrue any right to incentive compensation by reason of the Employee's employment.
11. In cases where Overtime Hours are worked in a period, overtime will be paid as required by law.
12. The Employer will reimburse the Employee for all reasonable expenses, in accordance with the Employer's policy as in effect from time to time, including but not limited to, any travel and entertainment expenses incurred by the Employee in connection with the business of the Employer. Expenses will be paid within a reasonable time after submission of acceptable supporting documentation.
Rule 1: Wages form the basic consideration for the services provided by the employee and hence, any alteration in the mode of payment or amount paid shall significantly affect the contract as a whole and the performance of the same.
Rule 2: The payment of wages form an essential part of the contract in view of the contract as a whole, the breach of the same would amount to a breach of the contract in entirety as the employee i.e. the other contracting party would be effected majorly.
Since the payment clause is what governs the consideration part of the contract and as consideration form the basic essentials of any contract to be enforceable, the payment of wages clause is indispensible and its non-compliance may amount to the repudiation of the contract. Therefore, the given term is a condition stipulated contractual term.
Term: SUPERANNUATION
If the Employee qualifies under the relevant legislation or under an award, the Employer will pay an amount as required by legislation or any relevant award into a complying superannuation fund or retirement savings account. The Employer will make such contributions at least once every quarter and will provide the Employee with written details of such contributions at least once every quarter.
Rule 1: Superannuation may or may not be made by the employer as the same depends on the requirement by law and qualification of the employee. Its execution may or may not significantly affect the execution of the contract. But it is a term as it is legally required and can be claimed as a matter of right in a contract pertaining to employment.
Rule 2: Contribution to the superannuation fund is a legal requirement but it does not suggestively and blatantly effect the performance of a contract.
Non-application of the superannuation term would not lead to the termination of the contract and it can easily be negotiated and remedied. Thus, superannuation is warranty under the contract.
Term: CONFIDENTIAL INFORMATION
39. The Employee acknowledges that, in any position the Employee may hold, in and as a result of the Employee's employment by the Employer, the Employee will, or May, be making use of, acquiring or adding to information which is confidential to the Employer (the -Confidential Information-) and the Confidential Information is the exclusive property of the Employer.
40. The Confidential Information will include all data and information relating to the business and management of the Employer, including but not limited to, proprietary and trade secret technology and accounting records to which access is obtained by the Employee, including Work Product, Computer Software, Other Proprietary Data, Business Operations, Marketing and Development Operations, and Customer Information.
41. The Confidential Information will also include any information that has been disclosed by a third party to the Employer and is governed by a non-disclosure agreement entered into between that third party and the Employer.
42. The Confidential Information will not include information that:
a) Is generally known in the industry of the Employer;
b) Is now or subsequently becomes generally available to the public through no wrongful act of the Employee;
c) Was rightfully in the possession of the Employee prior to the disclosure to the Employee by the Employer;
d) Is independently created by the Employee without direct or indirect use of the Confidential Information; or
e) The Employee rightfully obtains from a third party who has the right to transfer or disclose it.
43. The Confidential Information will also not include anything developed or produced by the Employee during the Employee's term of employment with the Employer, including but not limited to, any intellectual property, process, design, development, creation, research, invention, know-how, trade name, trade-mark or copyright that:
a) Was developed without the use of equipment, supplies, facility or Confidential Information of the Employer;
b) Was developed entirely on the Employee's own time;
c) Does not result from any work performed by the Employee for the Employer; and
d) Does not relate to any actual or reasonably anticipated business opportunity of the Employer.
Rule 1: It forms an extremely important part of the contract as an understanding between the employer and his employees and effects the smooth functioning of the business. It is done to ensure that the employer’s information will not be mishandled.
Rule 2: Any instance of there being a flout in the compliance with this provision, the entire contract may be terminated and such non-compliance would amount to a breach of the entire contract, as a whole.
Based on the above rules, confidential information forms an essential term of the contract and there can only be termination of the contract as the information once leaked will cause losses to the employer. The above-mentioned term of confidential information is therefore a stipulated condition as mentioned in the contract.
Term: TERMINATION
61. Where the Employee has breached any reasonable term of this Agreement or where there is just cause for termination, the Employer may terminate the Employee's employment without notice, as permitted by law.
62. The Employee and the Employer agree that reasonable and sufficient notice of termination of employment by the Employer is the greater of one (1) week or any minimum notice required by law.
63. If the Employee wishes to terminate this employment with the Employer, the Employee will provide the Employer with notice of one (1) week. As an alternative, if the Employee co-operates with the training and development of a replacement, then sufficient notice is given if it is sufficient notice to allow the Employer to find and train the replacement.
64. The Termination Date specified by either the Employee or the Employer may expire on any day of the month and upon the Termination Date the Employer will forthwith pay to the Employee any outstanding portion of the wage, accrued vacation and banked time, if any, calculated to the Termination Date.
65. Once notice has been given by either party for any reason, the Employee and the Employer agree to execute their duties and obligations under this Agreement diligently and in good faith through to the end of the notice period. The Employer may not make any changes to wages, wage rate, or any other term or condition of this Agreement between the time termination notices is given through to the end of the notice period.
Rule 1: The termination clause is an important term in the contractual agreement and hence termination due to discontinuation of business is also a term.
Rule 2: Though an important term, this does not affect the performance of the contract in a way that non-compliance with the same and the employer acting in his discretion will not amount to a termination of the contract.
The term is negotiable and can be easily remedied despite being important. The term is therefore a warranty.
Term: DUTY TO DEVOTE FULL TIME
30. The Employee agrees to devote full-time efforts, as an employee of the Employer, to the employment duties and obligations as described in this Agreement.
Rule 1: It stipulates the code of conduct of the employee so it is a term.
Rule 2: The term is important so long as it defines the duty of the employee and its extent but it is only a condition of service and not gravely important to the performance of the contract.
The term is negotiable and non-compliance does not amount to termination of the contract. Thus, the term is a warranty.