General Manager Resigns

[Aldo]

Aldo an employee's legal advisers may have an entirely different point of view.I don't know, but would think this would contravene the Trade Practices Act.

Turbo

 

I'm sure they (all the left wing do gooders) would but if you can't get an interview then the point is moot. As I said we already pay well above the award. If you or someone else is able to advise me to the contrary PM me by all means, as I said I'm no expert in these matters but our legal advice does not advise us otherwise. Our contracts are all with very large multi-nationals, not that this mitigates any local responsibilities.

 

 

[kaz3g]

Aldo, it's interesting that your lawyers are comfortable with such an Arrangement.

 

It's not unlawful discrimination and I can't see that a person who failed to obtain an interview would have a cause of action, but it must sit at least on the edge of being anti-competitive and that might excite ACCC attention.

 

Not my area, sorry.

 

Kaz

 

 

[Aldo]

Aldo, it's interesting that your lawyers are comfortable with such an Arrangement.It's not unlawful discrimination and I can't see that a person who failed to obtain an interview would have a cause of action, but it must sit at least on the edge of being anti-competitive and that might excite ACCC attention.

 

Not my area, sorry.

 

Kaz

Kaz

 

Appreciate your input and I will investigate further on our behalf to ensure we are not outside the legal restraints of competitive trade.

 

Thanks

 

Allan

 

 

[kaz3g]

Section 4D of the Consumer Law says:

 

(1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:

 

(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and

 

(b) the provision has the purpose of preventing, restricting or limiting:

 

(i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or

 

(ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions.....<snip>

 

And section 45(2) says:

 

(2) A corporation shall not:

 

(a) make a contract or arrangement, or arrive at an understanding, if:

 

(i) the proposed contract, arrangement or understanding contains an exclusionary provision; or

 

----------

 

So it could make an interesting argument,,,

 

Kaz

 

 

[Spriteah]

Allan well of thread but if the ACCC get involved you have nothing to worry about.

 

Jim

 

 

[turboplanner]

I'm a bit too weary to look it up tonight, but it would be wise to read up on the whole Act, because there are sections which deal with third line forcing and other matters.

 

 

[Aldo]

A fair chunk of the major IT companies in Silicon Valley (San Francisco) had similar clauses....just recently I believe that the employees have started (or perhaps concluded with an out of court settlement) a class action against the companies......It would seem to me to be relevant to the industry you talk of Jim, USA court actions and outcomes are very relevant to Australia, as are English outcomes and other common law countries.

 

http://www.benefitspro.com/2014/03/12/workers-sue-over-silicon-valley-anti-poaching-pact has the details

 

Andy

Andy

 

Interesting article.

 

 

[Aldo]

Allan well of thread but if the ACCC get involved you have nothing to worry about. Jim

Jim

 

As a general rule you are correct they are essentially a toothless tiger but we may not be big enough to ward off their attempts.

 

 

[Aldo]

Thanks Kaz, I'll have you on the payroll before I know it. Really appreciate your input.

 

Allan

 

 

[Spriteah]

JimAs a general rule you are correct they are essentially a toothless tiger but we may not be big enough to ward off their attempts.

Yup, I can recall they sucessfully got a conviction on a few petrol stations in Bendigo 10 years ago. One of the cashiers turned states evidence.

 

JT

 

 

[coljones]

KazFirstly my apologies i didn't realise you were a lawyer, but yes it is an agreement between employers (employees don't have a say), we sign no poaching agreements between employers and as such each employer will not employ an employee from either company for the stated time in the contract. I have no idea whether it would stand up in court if contested but I have never seen it get to that stage as we (as employers) will not accept applications from employees from the other company.

Generally these employer<>employer contracts are between two employees in a body hire arrangement and the no poach provision is provide continuity of cashflow for the direct employer of staff.

The protection sought is the body hire contractor found the work, found the employee and brought them together for a fee. If the body hire employee teams up with the other employer then the body shop hirer loses out on body hire fees. This is the reason for the no poach clauses.

 

These sort of contracts are prevalent in the IT Industry where a body hire shop will be contracted to provide, say, a progammer, at say $250/hour. The body hire shop then places one if its contractors or employees

 

in place for, say $100/hour. If the programmer was directly hired the body hire shop wouldn't be get that additional $150/hour.

 

Not the same as a restraint clause in an employees contract

 

 

[coljones]

Section 4D of the Consumer Law says:(1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:

 

(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and

 

(b) the provision has the purpose of preventing, restricting or limiting:

 

(i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or

 

(ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions.....<snip>

 

And section 45(2) says:

 

(2) A corporation shall not:

 

(a) make a contract or arrangement, or arrive at an understanding, if:

 

(i) the proposed contract, arrangement or understanding contains an exclusionary provision; or

 

----------

 

So it could make an interesting argument,,,

 

Kaz

this is competition law rather than employment law and does not cover body hire arrangements in situations envisaged by Aldo.

 

 

[kaz3g]

this is competition law rather than employment law and does not cover body hire arrangements in situations envisaged by Aldo.

Sorry...tired. Obviously it is Competition Law that I have quoted and, as I said, this is not my area..

 

But, again, the scenario you put forward is not the same as I gathered Aldo was speaking of and certainly not the same scenario that was being discussed re our GMs above.

 

I took Aldo to be referring to the normal situation where a person is hired by an employer under an employment contract and seeks work as an employee under a contract with another in the same or similar industry.

 

In your scenario, the worker appears to remain an employee of the labor hire firm which has contracted with the receiver of services which is a quite different scenario. I wonder to whom the "employee" owes the duty of loyalty and whether he is really an employee at all or rather an independent contractor...I suspect the latter.

 

Kaz

 

 

[Aldo]

Kaz

 

You are correct, the situation that I was referring to goes as follows

 

Employee 1 works for company A

 

Employee 2 works for company B

 

Our agreements between company A and company B states that company A will not approach employee 2 and vice versa.

 

On the other side, should employee 1 approach company B our employment contracts cover these situations.

 

In the situation Coljones mentioned above the employee works for the labour contractor and is contracted to company A, this can be a very efficient way to have personnel on your books for contract requirements it is also a very effective method for getting rid of a particular employee without having to go through all the BS if they work directly for you. An email to the labour contractor letting them know you will not require employee 1 on his/her next work rotation, cleans up the HR and IR issues.

 

 

[Captain]

I would just like to thank Jim and Ross for contributing in this thread.

 

 

 

It would have been unheard off 18 months ago for a member of the Executive and another Board member to be keeping members informed in this way. All RA Aus members should always bear that in mind ...... & the organisation is much the better for it.

 

 

 

It has always been a fact of life that employees move on, no matter how senior is their position. I thought Mark Clayton was a terrific GM and the job that he took on & did was larger and harder than almost all RA Aus members realise, but RA Aus must now look on his departure as an opportunity. It is an opportunity to identify & install someone even better, after all, RA Aus now has an Executive and Board that are way better than they used to be, so RA Aus has made real progress since the EGM.

 

 

[Keith Page]

Gee Aldo I'm glad your not in the aviation business !!..........

He has answered it for all to see.... He is an electrician..

 

Regards

 

Keith Page.

 

 

[facthunter]

A bright spark with a lot of potential. Nev

 

 

[aro]

I don't know that collusion is correct, the employees are able to go work for any other company if they so choose other than the one/ones you are dealing with during the period of the contract, as you stated previously it is a way of containing wages to a reasonable level, we already pay between 2.5 and 3 times the award for the personnel we require.

This sounds a lot like it would fit the definition of price fixing, you are arranging between companies to control the price you pay for the services of your employees.

 

 

[facthunter]

In this area the price pad is determined by the market.? No? Nev

 

 

[coljones]

KazYou are correct, the situation that I was referring to goes as follows

 

Employee 1 works for company A

 

Employee 2 works for company B

 

Our agreements between company A and company B states that company A will not approach employee 2 and vice versa.

 

On the other side, should employee 1 approach company B our employment contracts cover these situations.

 

In the situation Coljones mentioned above the employee works for the labour contractor and is contracted to company A, this can be a very efficient way to have personnel on your books for contract requirements it is also a very effective method for getting rid of a particular employee without having to go through all the BS if they work directly for you. An email to the labour contractor letting them know you will not require employee 1 on his/her next work rotation, cleans up the HR and IR issues.

Arlo, what is the relationship between A and B in your example?

 

 

[Aldo]

Arlo, what is the relationship between A and B in your example?

A is the contractor company and B is the company offering the the job.

 

Example A is ABC Pty Ltd and B is QGC (as an example)

 

 

[Aldo]

He has answered it for all to see.... He is an electrician..Regards

 

Keith Page.

Not sure what your point is Keith, are you trying to insinuate that because I'm an electrician that I don't know anything about aviation, might surprise you but I've been involved in aviation since the mid eighties so I have a reasonable understanding of the industry, might also surprise you that I have friends in RA, GA/Charter, Qantas, Cathay, Dragon Air, Air Services, military aviation and CASA so I have a few people I'm able to consult with (who actually know what they are talking about) when I'm not sure on something to do with aviation.

 

So my suggestion to you is unless you have something constructive to add to the conversation or the balls to come out and say what you really mean nick off back to where you came from.

 

 

[Keith Page]

Not sure what your point is Keith, are you trying to insinuate that because I'm an electrician that I don't know anything about aviation, might surprise you but I've been involved in aviation since the mid eighties so I have a reasonable understanding of the industry, might also surprise you that I have friends in RA, GA/Charter, Qantas, Cathay, Dragon Air, Air Services, military aviation and CASA so I have a few people I'm able to consult with (who actually know what they are talking about) when I'm not sure on something to do with aviation.So my suggestion to you is unless you have something constructive to add to the conversation or the balls to come out and say what you really mean nick off back to where you came from.

I just said you are a electrician.. Good to see you have a long list of friends.

 

Regards

 

Keith Page.

 

 

[Downunder]

Rule number 1:Don't feed the trolls........

 

 

[dodo]

It isn't very comforting to find we still can't keep people in key positions - especially as Mark was making a very good go of it.

 

I hope Major and the Captain are right and we can get someone as good - and keep them, this time.

 

Anyway, I wish him the best wherever he goes from here,

 

dodo