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Hey guys,

I am employed as an IT developer.

I've been looking at my job contract, and there is a clause which states:

Whilst employed with us it is agreed that you shall not perform your duties other than for us or on our behalf.

Now I understand that the absolute meaning of this is down to the interpretation of a lawyer, should the clause need to be enacted. However, does this clause preclude me from doing external contracting work in my own time?

If so, is this legally enforceable?

I would be interested in any cases of this clause being used in business, or being enacted upon. Especially in Australia.

Thanks,

JD

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2 Answers

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My advice is that if you're contemplating doing something that might contradict the clause, you check with your manager. For example "my kid's sports team has asked me to set up a blog for them, as a volunteer on my own time, and I just wanted to clear that with you." If you don't feel happy with your manager knowing you're doing it, then you know darn well that you shouldn't be doing it while working there. If you are happy with your manager knowing, and you got permission, then you aren't going to have a problem going forward. And if something comes up that you think you should be ok to do, but your manager says no, well then you have a concrete problem rather than an abstract one, but that's out of scope for this question.

I live in Canada where non competes tend not to be enforced after you leave, but are enforced while you are in the job. As an employer (of software developers and consultants) I have said yes to tons of "side projects" and forbidden/denied a few.

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I've seen similar things though I do question how enforceable and nit-picky some people would be about such things. For example, could you eat without checking with your employer? How about going to the bathroom? I'm just wondering if anyone read that and took those kinds of things into account.

In general, there can be non-compete clauses which are a bit different than that as they usually have to state an expertise. For example, when I worked in Seattle, Washington one of the developers there had a non-compete that prevented him from making any music software for a couple of years if he left the company. As far as Australian factors to this, I have no knowledge of laws down under, sorry mate.

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