NFP Employees and Restraint of Trade
Legal Practitioner Director
Restraint of trade clauses are commonly used by Not For Profit organisations (NFP employers) to protect the goodwill in their business activities from being sabotaged by former (or in some cases current) employees.We have noticed that NFP employers seek legal advice on an employee or former employee’s activities that compete with the business activities of the NFP. This is becoming more evident in the disability sector where an employee sees an opportunity to become a sole trade and provide disability support services to participants of the NFP. Commonly employment contracts do not contain restraint of trade clauses or inadequate restraint clauses. You can imagine an NFP employer’s displeasure when they seek legal advice (normally at the time of enforcement, when it is too late) and are told that there is no restraint to rely on or the restraint of trade clause they seek to rely upon is unenforceable and their trade secrets, confidential information and goodwill are exposed.Where NFP employers are familiar with restraints of trade clauses, those employers are often shocked to discover that restraint of trade clauses are only enforceable to the extent that the restraint is reasonably necessary to protect the NFP employer’s legitimate business interests  – with the onus on the NFP employer to prove that.This raises two questions:
- What is a “legitimate business interest”; and
- What is “reasonably necessary”?
Legitimate Business Interests
A legitimate business interest may include (but is not limited to):
- Confidential information;
- Participant/ client/customer lists; and/or
However, a legitimate business interest may not include the possibility of a former employee competing against the NFP employer. An NFP employer may not prevent a former employee from using knowledge gained during their employment that does not affect a legitimate business interest.The restraint should expressly state the legitimate business interest being protected, as decision makers have deemed restraint clauses unenforceable in circumstances where they are required to infer what specific interest is being protected.
As stated above, a restraint of trade clause must go no further than reasonably necessary to protect the employer’s legitimate business interest. In determining what is reasonably necessary, a decision maker will consider all the relevant circumstances as at the time the restraint of trade clause was agreed to and not the time the restraint is sought to be enforced.In order to determine whether the restraint is reasonably necessary, consideration will be given to the following circumstances (depending on the interest being protected):
- The duties performed by the employee in their position within the business;
- The former employee’s relationship with clients/customers (that is, were they in a position to gain the trust of clients? Is there a risk that the employee may take the client with them if they leave the business?);
- The position of the employee within the business;
- The nature of the confidential information;
- The nature of the employer’s business;
- Will the employer be harmed if the employee is not restrained; and
- Any other circumstances that may be relevant to the matter.
Enforcing Invalid Restraints
In our experience, NFP employers quite often have a legitimate business interest that can be protected. However, in protecting their legitimate business interests’ NFP employers often overstep the mark by drafting restraint of trade clauses that go beyond what is reasonably necessary to protect that interest (ironically leaving their legitimate business interests unprotected).There is no set test used by decision makers to determine whether or not a restraint of trade clause is reasonable. Instead, it depends on the facts and the evaluation of the approach that is reasonable.In saying that, you can be pretty sure that restraints that include the words “in any capacity” are likely to be declared invalid as they too wide.The most common remedies sought for breaches of restraint of trade clauses are damages and injunctive relief. The costs associated with litigating these remedies are usually substantial, especially considering that if your action is successfully defended (that is, you are unsuccessful in your action), you may be ordered to pay the costs of the other side.As such, attempting to enforce an invalid restraint of trade clause can not only be a costly exercise, but may also leave your legitimate business interests vulnerable and exposed.
The importance of seeking legal advice regarding restraint of trade clauses cannot be understated. Their mere inclusion in a contract does not mean that they are enforceable. Restraint of trade clauses are only enforceable when they protect a business in circumstances where an employer can demonstrate that the restraint is reasonably necessary to protect the employer’s legitimate business interests.If an employer attempts to overreach and extend the restraint of trade clause beyond what is reasonable, the restraint clause is likely to be declared invalid; rendering the clause, in effect, useless.NFP employers should also consider the circumstances in which employees gain increased responsibility within a business, or access to participants/ clients/ customers, and their original restraint no longer adequately protects an employer’s legitimate business interests. As an employee is promoted within a business, an employer should review the employee’s employment contract to ensure that it adequately reflects the employee’s role within the business and reasonably protects the employer’s legitimate business interests.We strongly recommend that NFP employers seek legal advice prior to including a restraint of trade clause in an employment contract. In the event that you fail to seek that advice you are putting your business at risk.
 Linder v Murdock’s Garage  HCA 48 at .
 Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242.
 Tv Shopping Network Ltd v Scutt & Anor  NSWSC 705
Reliance on content the material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.