WHY HIRE FROM A HRIA MEMBER

By choosing to hire from a HRIA member you are ensuring the best possible hire experience.

• HRIA Members will recommend the right equipment for your job

• HRIA Members can provide instruction on use of the equipment

• All equipment hired by HRIA members is thoroughly checked and maintained prior to each hire and electrically tested and tagged where needed

• HRIA members follow all Workplace Health and Safety requirements and have access to the latest safety legislation – ensuring the highest standard of safety for employees and hirers of equipment

• Hiring from an HRIA member ensures equipment reliability and efficiency

• HRIA members are committing to a code of ethics

WITH OVER 500 CORPORATE MEMBERS, YOU WILL BE SURE TO FIND A HRIA MEMBER NEAR YOU.

For more information or to join the HRIA visit www.hireandrental.com.au

Is the restraint reasonably necessary?

For a restraint to be enforceable, the restraint must be no more than is reasonably necessary to protect a legitimate interest. Whilst there is no true brightline test for this, the Courts typically look at the surrounding facts and circumstances, including factors such as:

• what is the interest being protected;

• who are the parties, and what characteristics do they possess;

• what activities is a party prevented from doing;

• where geographically is the party prevented from conducting the activities;

• how long is the party prevented from conducting the activity;

• has any consideration been paid; and

• what is usual in the current market.

Ultimately, whether a restraint is reasonable depends on the facts and circumstances. As an example, in the recent appeal judgement of McMurchy v Employsure Pty Ltd; Kumaran v Employsure Pty Ltd [2022] NSWCA 201, the Courts considered whether a 9-month restraint against two former sales managers was reasonable. Here, the Courts were willing to may be ‘read down’ pursuant to the Restraints of Trade Act 1976 (NSW). What this means is that where this Act applies, the Courts aren’t limited to simply striking out words but can modify the provision so that at least some protection is afforded to the legitimate interest.

Practical considerations

Drafting

To ensure a restraint is enforceable, it is important to make sure the clause is properly drafted and tailored to the individual facts and circumstances, noting how the Courts deal with restraints that are considered unreasonable.

As what is considered reasonably necessary does change from time to time, it may be appropriate to include some flexibility and think about what minimum protections are necessary. In doing so, you should be working closely with your lawyers to ensure any restraints you put forward are appropriately designed and drafted.

What action can be taken if a restraint is breached?

If you are concerned that someone has breached their restraint, it is important to ensure that steps are taken to stop any further breach and to ensure you are not seen to be waiving your rights or otherwise accepting the conduct. Typical steps include:

• issuing formal cease and decease letters; and enforce against one of the former sales managers on the basis they had access to certain confidential information but were unwilling to enforce that same restraint against the other as they did not appear to have the same access rights.

• informing other involved parties about the alleged breach of restraint.

Ultimately though, you may need to take formal legal action, which may include seeking an injunction, to enforce the restraint. Sometimes proving that a restraint has been breached can be difficult.

What happens if a restraint is

not reasonable?

Under common law, when the Courts determine that a particular restraint clause is unreasonable, they will try to apply the ‘blue pencil test’. This involves the Courts seeing if they can make a restraint reasonable by simply striking out parts of the clause. As the Courts are not entitled to modify or alter any of the words in conducting the test, it may result in the entire restraint being struck out, even if it means leaving a legitimate interest entirely unprotected.

In NSW however, unlike other States and Territories, restraint clauses that are unreasonable

As such, it is important to take formal legal counsel as soon as possible to ensure that you are taking the most appropriate action.

If you require assistance with your standard form contracts or would like any advice on the current UCT regime, please contact Gavin Stuart or Nicole Marcus from Bartier Perry Lawyers. www.bartier.com.au

ELEVATING WORK PLATFORM ASSOCIATION OF AUSTRALIA INC

ABN 32 545 830 419

EWPA BOARD OF DIRECTORS

President John Glover Tel: 0419 663 863

Vice President Tim Nuttall Tel: 03 9547 7700

Past President Doug Rawlings Tel: 08 9350 570

Chief Executive Officer James Oxenham Tel: 02 9998 2222

NSW President Luke Schubert Tel: 0458 770 002

VIC President Keith Clarke Tel: 0400 369 900

QLD President Richard Gannon Tel: 0437 477 279

SA President Ray Green Tel: 0473 217 310

WA President: Will Reilly Tel: 0408 474 261

TECHNICAL DIRECTOR:

OPER ATIONS Peter Davis Tel: 02 8796 50551

TECHNICAL DIRECTOR:

ENGINEERING

Peter Wenn Tel: 03 9568 7211

COMMITTEE Bob Mules Tel: 0402 982 999

James Nightingale Tel: 0457 110 110

Tony Fish Tel: 0427 115 711

TELESCOPIC HANDLER ASSOCIATION OF AUSTRALIA (TSHA)

PRESIDENT Stuart Walker Tel: 0418 849 107

EWPA & TSHA PO Box 1304, Mona Vale

NSW 1660

Tel: 02 9998 2222

Email: info@ewpa.com.au Web: www.ewpa.com.au

Opinions published in Hire & Rental Magazine do not necessarily reflect the opinions of the association or the Editor. The HRIA accepts no responsibility for the accuracy of any information contained in this magazine and readers should rely upon their own enquiries in making decisions related to their own interest. All rights reserved.

ISSN 1838-1197

JOHN GLOVER EWPA PRESIDENT