Employment agreement guide

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Other Employment Obligations

11.1 Confidential Information
A voluntary clause of this nature can be useful in providing an opening to discussing confidentiality during interview or induction. Failure to include such a clause does not release the employee from their responsibility to hold information gained in undertaking their employment confidential.

Confidential Information

The Employee shall not, whether during the currency of this agreement or after its termination for whatever reason, use, disclose or distribute to any person or entity, otherwise than as necessary for the proper performance of their duties and responsibilities under this agreement, or as required by law, any confidential information, messages, data or trade secrets acquired by the Employee in the course of performing their services under this agreement. This includes, but is not limited to, information about the Employer's business.
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11.2 Copyrights
Clarifying ownership of intellectual property is particularly important where design or strategic advice form part of the ongoing work of the business. Employees should be aware of these provisions and particularly take care where they are employed by more than one organisation.

Copyright and other Intellectual Property

All work produced for the Employer by the Employee under this agreement or otherwise and the right to the copyright and all other intellectual property in all such work is to be the sole property of the Employer.
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11.3 Conflicts of Interest
Care should be taken to clarify the type of conflict that the employer would consider requires discussion under this clause. It does not give the employer unlimited ability to restrict the activities of an employee, and advice should be sought where the employer considers taking any action against the employee as a result of any declared or undeclared conflict.

Conflicts of Interest

The Employee agrees that there are no contracts, restrictions or other matters which would interfere with their ability to discharge their obligations under this agreement. If, while performing their duties and responsibilities under this agreement, the Employee becomes aware of any potential or actual conflict between their interests and those of the Employer, then the Employee shall immediately inform the Employer. Where the Employer forms the view that such a conflict does or could exist, it may direct the Employee to take action(s) to resolve that conflict, and the Employee shall comply with that instruction. When acting in their capacity as Employee, the Employee shall not, either directly or indirectly, receive or accept for their own benefit or the benefit of any person or entity other than the Employer any gratuity, emolument, or payment of any kind from any person having or intending to have any business with the Employer.
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11.4 Use of Internet and E-mail
Employment relations problems over the use of email and internet are increasing. Setting clear expectations for use, and applying them consistently is good employment practice. If this clause is included in an agreement the employer should clearly indentify their expectations and policies.

Use of Internet and Email

The Employee will have access to email and the Internet in the course of their employment. The Employee shall ensure that at all times their use of the email and Internet facilities at work meets the ethical and social standards of the workplace. Whilst a reasonable level of personal use is acceptable to the Employer, this must not interfere with the Employee's employment duties or obligations, and must not be illegal or contrary to the interests of the Employer. The Employee shall also comply with all email and Internet policies issued by the Employer from time to time.
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11.5 Privacy Obligations
Failure to include a privacy clause does not exclude the employer or employee from the provisions of the Privacy Act (1993).

Privacy Obligations

The Employer and the Employee shall comply with the obligations set out in the Privacy Act 1993. The Employee must not breach the privacy of any customer or client in the course of their employment.
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11.6 Restraint of Trade - Non-Competition
Legal advice should be sought on the inclusion of, and action taken under Restraint of Trade clauses. In considering using these provisions it is important that the restraint applied is deemed appropriate for the nature of the relationship between the employer, employee and the employer's clients.

Non-Competition

The Employee agrees that for a period of [insert period] following the termination of their employment for whatever reason, they shall not, either personally, or as an employee, consultant or agent for any other entity or employer, carry on business in competition with the Employer within a radius of [insert number] kilometres from the Employer's premises.
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11.7 Restraint of Trade - Non-Solicitation of Clients
Legal advice should be sought on the inclusion of, and action taken under Restraint of Trade clauses. In considering using these provisions it is important that the restraint applied is deemed appropriate for the nature of the relationship between the employer, employee and the employer's clients.

Non-Solicitation of Clients

The Employee agrees that for a period of [insert period] following the termination of their employment for whatever reason, they shall not, either personally, or as an employee, consultant or agent for any other entity or employer, seek to solicit or carry out any work of the same nature for any client or customer of the Employer with which the Employee had any contact or dealings whilst employed by the Employer.
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11.8 Restraint of Trade - Non-Solicitation of Employees
Legal advice should be sought on the inclusion of, and action taken under Restraint of Trade clauses. In considering using these provisions it is important that the restraint applied is deemed appropriate for the nature of the relationship between the employer, employee and the employer's clients.

Non-Solicitation of Employees

The Employee agrees that for a period of [insert period] following the termination of their employment for whatever reason, they shall not, either personally, or as an employee, consultant or agent for any other entity or employer, solicit or engage or employ any employee of the Employer with whom the Employee had any dealings whilst employed with the Employer.
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11.9 Restraint of Trade - Severability
If a restraint of trade provision (or part of the provision) is challenged by an employee, this clause allows for the agreement to continue as changed by the Employment Court or Authority or, if the provision is found to be unenforceable, for the rest of the agreement to stay in place despite that finding.

Severability

In the event any portion of this clause is viewed as unenforceable by any Authority or Court with jurisdiction to consider such clauses, the clause shall apply as modified by the Authority or the Court, or in the event it is not modified by the Authority or Court, the remainder of this clause and agreement shall continue to be enforceable by the parties.
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