Restraint of Trade Clauses

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#2855944 25-Jan-2022 09:11

The commercial implications of this could be quite significant.

It was my understanding that Mediaworks were planning to launch Today FM in the next couple of weeks. Because Tova is such a critical component of the station, this ruling will delay the launch of the entire station. That means that Discovery and NZME will have several weeks to get their 2022 morning news programming ramped up, leaving Mediaworks on the back foot when they eventually launch.

It's poor risk management from Mediaworks, but I don't believe that this ERA ruling serves the public interest.

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#2855946 25-Jan-2022 09:24

alasta:
The commercial implications of this could be quite significant.

It was my understanding that Mediaworks were planning to launch Today FM in the next couple of weeks. Because Tova is such a critical component of the station, this ruling will delay the launch of the entire station. That means that Discovery and NZME will have several weeks to get their 2022 morning news programming ramped up, leaving Mediaworks on the back foot when they eventually launch.

It's poor risk management from Mediaworks, but I don't believe that this ERA ruling serves the public interest.

It's not supposed to.

It was a contract dispute between two parties. There is no national interest component.

If Government thinks there is one, it is on them to convince us and change the law, not the ERA.

quickymart

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#2855950 25-Jan-2022 09:28

My guess is they may just launch on the planned date to get on the air, and have a fill-in host for Tova for the first couple of months.

alasta

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#2855959 25-Jan-2022 09:39

Geektastic:
alasta:

It's poor risk management from Mediaworks, but I don't believe that this ERA ruling serves the public interest.

It's not supposed to.

It was a contract dispute between two parties. There is no national interest component.

If Government thinks there is one, it is on them to convince us and change the law, not the ERA.

I wasn't suggesting that the ERA should have taken account of the public interest in its ruling. I was merely pointing out that competition and media plurality is collateral damage.

1101

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#2855987 25-Jan-2022 10:18

Geektastic:

If you take legal advice and exercise your free will to sign the contract then how can you have the temerity to complain?

The parties to the contract were adults entering into the terms freely and without coercion. You cannot then complain you did not understand. I wonder if there is another similar clause in her new contract...

Not so for the average worker.
There is DEFINITELY coercion , when its : sign up or you dont work , dont get the job.
Or , sign this new contract if you want to keep your job.

Hardly even bargaining power on both sides , is it .

Handsomedan

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#2855994 25-Jan-2022 10:27

1101:

Not so for the average worker.
There is DEFINITELY coercion , when its : sign up or you dont work , dont get the job.
Or , sign this new contract if you want to keep your job.

Hardly even bargaining power on both sides , is it .

Yeah we are going through a restructure at the moment and will be having several changes to all of our roles.

We are being consulted, but the likelihood of anyone being able to change their outcome is slim to none.

I'm leaving, but it still affects my colleagues and my staff.

I've also been told that if I had agreed to the restructure, then the new contract would've included a 3-month notice period. I can't imagine any future employer wanting to wait 3 months for me. I may be a senior member of the team, but I'm not a CEO or global leader.

I doubt I would have been able to argue the point, either. And I am not "the average worker", really.

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#2856029 25-Jan-2022 11:08

3 month notice periods are becoming the norm for any role that leads people. I've had 3 month notice periods in my contracts for the best part of 15 years. If you have the right skill set and have something unique to offer then an prospective employer will work with you on that transition.

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alasta

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#2856032 25-Jan-2022 11:10

What would happen if you just left without serving out the 3 month notice period? I guess your employer could sue you, but how would they quantify the damages?

Handsomedan

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#2856043 25-Jan-2022 11:34

alasta:

What would happen if you just left without serving out the 3 month notice period? I guess your employer could sue you, but how would they quantify the damages?

I guess they'd just stop paying you and would take you to court if you started elsewhere before the time was up.

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#2856082 25-Jan-2022 13:23

"just sue you" - there's the problem, most of us are not in a portion to treat the cost of building a legal defense for breach of contract 'just', and those are are usually not in a position to treat damages (if we loose) awarded as 'just', on top of those fees.

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#2856101 25-Jan-2022 14:26

alasta:

What would happen if you just left without serving out the 3 month notice period? I guess your employer could sue you, but how would they quantify the damages?

My lay person understanding is that either side needs to pay out the remainder of the notice period if they wish to shorten it unless otherwise mutually agreed.

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#2856112 25-Jan-2022 14:45

I have such clause in my IEA and I'm fine with it. I can avoid it by taking a new role in a different sector, or live with it and take an enforced holiday.

If you sign it, you are bound by it and should have made sure you understood it.

Tova is an educated, intelligent adult. She had the means to get legal advice when she signed her employment agreement.

Maybe a few month pumping petrol (if forecourt attendant was still a real job) would provide her with some valuable perspective.

Mike

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#2856114 25-Jan-2022 14:46

alasta:

What would happen if you just left without serving out the 3 month notice period? I guess your employer could sue you, but how would they quantify the damages?

Few thoughts on this:

1) It wouldn't fill your new employer with confidence. What happens the next time you decide you want a change?
2) Some sponsors may reduce spend or jump ship - easily counted.
3) Some pre-recorded storied might need to be re-done - easily costed.
4) Billboards with the person's face may need to be replaced at a cost - easily costed.
5) Might cost them more to find a contractor to replace the staff member in the short term - easily costed.

I'm sure they'll be able to come up to a number large enough to put anyone off from doing it while in a public spat. Not sure whether Tova tried, but surely if she didn't drag this into the media so early she may have had better luck getting out early quietly. The new owner also somewhat set her up and should be obliged to start paying her already as they have already received much additional media coverage as a result (hopefully Discovery wouldn't have a claim to this income)

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#2856116 25-Jan-2022 14:47

Senecio:

3 month notice periods are becoming the norm for any role that leads people. I've had 3 month notice periods in my contracts for the best part of 15 years. If you have the right skill set and have something unique to offer then an prospective employer will work with you on that transition.

At my last role it was 4-months. Wasn't a problem in finding new role.

Mike

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#2856141 25-Jan-2022 15:22

1101:
Geektastic:

If you take legal advice and exercise your free will to sign the contract then how can you have the temerity to complain?

The parties to the contract were adults entering into the terms freely and without coercion. You cannot then complain you did not understand. I wonder if there is another similar clause in her new contract...

Not so for the average worker.
There is DEFINITELY coercion , when its : sign up or you dont work , dont get the job.
Or , sign this new contract if you want to keep your job.

Hardly even bargaining power on both sides , is it .

It was the same for her: sign or don't get the job. There's never even bargaining power. Want to buy this car? Sign this contract and give us $250,000 or don't.

She knew what she was signing. She had legal advice. Actions have consequences. QED.

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