457 & Redundancy - Complication!

[eddiep]

I came to Australia nearly a couple of years ago and the business for which I work has recently been sold.

 

I was on a 457 visa and have taken a redundancy package (as have a number of others on the management team). It would be fair to say that there was a lot of pressure to conclude the redundancy negotiations for a group of us. As part of that 'negotiation" which was pretty much a 'take it or leave it' situation one of the clauses in the signed agreement was a non compete clause.

 

I am spending a lot of time now looking for new roles and have a couple of interesting options that look like they MIGHT result in an offer.

 

I have a couple of questions about this that I was hoping the group may be able to assist with:

 

1. In the event I understand that my employer is under obligation to tell the Oz immigration about my departure. Does my 3 month clock start ticking from that date, or the date that I then get notified by immigration? How flexible/ inflexible might this be?

 

2. Given that I was made redundant, I think it was morally bankrupt of the business to make me sign up to a non compete clause as they were dispensing with my services and I have worked in the same industry many years and it is a specialist industry. Would this clause be enforceable? I have been approached by a competitor about some roles, and my wife and I want to stay here. We are confident that it would qualify for another 457/transfer of my 457 if I were to work for the new employer - So - would this be enforceable?

 

3. If I were to transfer - who 'OWNs' the 457? - Could my old employer refuse to transfer it?

 

A bit complicated, but really value the views of this group who have been so helpful before. Many thanks in advance

[xxlornaxx]

Your employer is obliged to let immi know u no longer work for them...so are you and three months start from when you end work...employer can't refuse to transfer visa, they have no rights over it like that..I transferred 457 between employers..In very different circumstances to you but once I found a new sponsor it was all very quick n straightforward..i don't know abt your other questions

[movingback]

Personally I think you're very lucky to get a redundancy package on a 457. If I was the employer I'd just say your role is no longer available and send you home. Otherwise, can you NOT take he package and not sign the redundancy agreement? You wouldn't get the money but it would free you up from the non compete agreement.

[Bungo]

You also have an obligation to let immigration know about your status, you couldn't just fly below the radar if your company is slow or forgets to. I am not sure exactly when the 90 days starts, but probably best to work on the premise that it starts when you leave.

 

I agree that it is morally bankrupt of the company to hold you to a non competition clause after making you redundant. I am almost certain that it is not enforceable, but I am not an employment lawyer. But what are they going to do about it exactly? Sue you? And then you go to the press and they incur reputational damage.

 

I don't think that the company could do anything to prevent another company taking over the nomination.

 

Good luck.

[Bungo]

Personally I think you're very lucky to get a redundancy package on a 457. If I was the employer I'd just say your role is no longer available and send you home. Otherwise, can you NOT take he package and not sign the redundancy agreement? You wouldn't get the money but it would free you up from the non compete agreement.

 

 

There is nothing lucky about it. A 457 visa holder has the same employment rights as everybody else, including redundancy.

[Eddy Smirks]

Personally I think you're very lucky to get a redundancy package on a 457.

 

Ha-ha! What planet are you on!? :err:

 

As to the original question, do a quick Google search on non-compete clauses (or covenants). The clause has to be reasonable and the company has to prove that your actions have had a detrimental effect on their business (trying to poach their clients etc). Highly unlikely to be enforced but it covers them in case you do something that screws them.

 

Good luck on your job search!

 

Eddy

[eddiep]

Thanks all for your comments. It was just as well my boss recognised that I had packed up everything, sold my house in the UK and moved my family (at great emotional cost) to Oz, and therefore personally felt an obligation to ensure I was looked after. This pretty much ties up with what I thought. However, it seems interesting that I have only 90 days, when I will have paid a huge amount of tax on my earnings (including redundancy pay) and want to stay, and in that period I cannot claim benefits and have full medical insurance, so an still benefitting the economy with my spending!

 

I'll probably to apply for a role working for movingback's business given the sympathetic hearing and view. ;-)

 

Would appreciate if anyone and more views on my non compete or the 457 visa dates...

[blossom]

I was also under the impression that those contracts are not enforceable.

And the 90 day thing is from when immigration write to you letting you know you have 90 days. This can take them a fair while. And it can be extended if you can show that you are close to finding a new sponsor.

[AJ]

Thanks all for your comments. It was just as well my boss recognised that I had packed up everything, sold my house in the UK and moved my family (at great emotional cost) to Oz.

 

 

But it was your choice to do that for a temporary work permit

[eddiep]

AJ, It was. So just as well I had an understanding and compassionate boss. It was not a temporary contract. It was a permanent contract, albeit with a 5 year 457.

 

Do you have anything positive to contribute, or just trolling? I don't come on the forum to be judged, I just came looking for friendly advice.....

[blossom]

Back to the original question please. We ask in the migration section only for helpful responses. Thank you.

[Bungo]

AJ, It was. So just as well I had an understanding and compassionate boss. It was not a temporary contract. It was a permanent contract, albeit with a 5 year 457.

 

Do you have anything positive to contribute, or just trolling? I don't come on the forum to be judged, I just came looking for friendly advice.....

 

No steady on there. Or you are going to lose us. I absolutely support your position, you are entitled to be treated the same as anyone else and it is unreasonable to be locked out of employment. I think the comments on this thread have indicated that this will be unenforceable, but you will only get that definitely by consulting an employment lawyer. I worked for a top 15 ASX company as a senior manager and dealt with many complex employment issues and this is my take, but I am still not an employment lawyer.

 

But please do not get onto tax and benefits, you were on a temporary visa and as far as tax payer funding goes that is the deal. And it was your choice to sell up for a temporary visa so take some responsibility.

[eddiep]

Thanks for your comments Bungo

 

I was merely expressing a view on my situation. Not absolving myself of responsibility for choices I have made. I simply didn't appreciate a post that had nothing to contribute to the debate other than to express view that somehow this was my fault. I am happy with the choices I have made, and it has worked out well for me and my family. I was also lucky to have a decent boss.

 

There were always risks in moving, and I accept those risks and take full responsibility for my choices. Even if we return to the UK, we will have had a fabulous 2 years here and would go back having had a wonderful experience. I would like to stay and therefore reach out to these forums (that I value) for practical advice on that issue. I just don't see value in posting unhelpfully as a previous contributor did. I had simply expressed a view that the immigration rules seem to be a little perverse when I am far from a burden to the Australian economy - but I also accept that rules are rules.

 

I don't mind being challenged, as long as it is in the context of supporting the OP.....Isn't that what these forums are for? That wasn't the case for all the replies.

 

Thanks again - your personal posts have been very helpful.

[Raul Senise]

1. In the event I understand that my employer is under obligation to tell the Oz immigration about my departure. Does my 3 month clock start ticking from that date, or the date that I then get notified by immigration? How flexible/ inflexible might this be?

As per condition 8107, 90 consecutive days from the period you cease employment.

Depending on the circumstances, there can be some wiggle room.

 

2. Given that I was made redundant, I think it was morally bankrupt of the business to make me sign up to a non compete clause as they were dispensing with my services and I have worked in the same industry many years and it is a specialist industry. Would this clause be enforceable? I have been approached by a competitor about some roles, and my wife and I want to stay here. We are confident that it would qualify for another 457/transfer of my 457 if I were to work for the new employer - So - would this be enforceable?

May be wise to have a good contacts or employment lawyer review the contact. Difficult to comment without seeing the specific wording.

 

3. If I were to transfer - who 'OWNs' the 457? - Could my old employer refuse to transfer it?

No, if a new employer has a nomination for you approved, the obligations for your visa transfer to them.

[Chortlepuss]

I had a non competition clause written in to my contract (IT). It forbade me to work with anyone in the same industry (Management Consulting, IT) for X amount of time after I left. Completely worthless - Would have prevented me earning a living. This company never enforced the clause....

[Parley]

It doesn't sound right to have a non compete clause when you have been made redundant.

They are saying they don't want you but also you can't work anywhere else.

 

Sounds unusual.

I can understand a non compete where someone resigns but not in a redundancy situation.

[Suzukiscottie]

Ridiculous that you are being penalised by the non-compete clause in a redundancy situation. In a redundancy situation, it's the job that is no longer required, and by default the person doing that particular job is affected. Strictly speaking, no-one else in the company can then undertake those activities (although there are ways around it). Its a clear statement by the employer that the specific function is no longer required to be undertaken by the company.

 

To then penalise the person who is employed doing that job, with a non-compete clause is a very low act. I can't see how it's enforceable. It's certainly not reasonable, and that is the measure for non-compete clauses.

 

I'd take whatever job you feel comfortable with in your situation.

[VERYSTORMY]

I would seek proffessional advice.

 

Such contractual clauses uses can be enforceable in particular circumstances.

[MaggieMay24]

When I have asked our employment lawyer about possibilities of including a non-compete clause in employment contracts, I've been told they can be very difficult to enforce as courts will typically be reluctant to prevent someone from being able to work in their field. A confidentiality agreement is more common (but can be difficult to enforce unless you can prove someone's used confidential information at their new employer).

 

It's probably worth a consultation with an employment lawyer to arm yourself with some relevant wording if your previous employer were to make noises against you accepting a position within your industry.

[eddiep]

Thanks everyone for your comments. That's given me some confidence about my situation. I'll go and take some legal advice and will report back to the group (in case anyone else finds themselves in this situation).

 

Thanks all for your contributions. It's much appreciated.

[eddiep]

Just by way of an update - My redundancy has now gone though, and I was in the fortunate position that I had two companies that wanted to offer me roles. One was a competitor and one not.

 

I took legal advice on the non compete clause and was advised that whilst it was certainly unenforceable, that it could be a bit of a rough ride if my old employer tried to enforce it and I could be faced with a legal bill/

 

I have therefore decided to take up an offer with the non competitor business. I have a contract o the table, subject to them successfully applying for the 457 transfer.

 

Thanks to you all for your support and assistance.

[CaptainC]

Just by way of an update - My redundancy has now gone though, and I was in the fortunate position that I had two companies that wanted to offer me roles. One was a competitor and one not.

 

I took legal advice on the non compete clause and was advised that whilst it was certainly unenforceable, that it could be a bit of a rough ride if my old employer tried to enforce it and I could be faced with a legal bill/

 

I have therefore decided to take up an offer with the non competitor business. I have a contract o the table, subject to them successfully applying for the 457 transfer.

 

Thanks to you all for your support and assistance.

 

Excellent news @eddiep best of luck with your new employer.

 

Might be a good time to start looking into an skilled PR visa soon. It would prove invaluable if you found yourself in a similar situation.

[eddiep]

Thanks Captain C - I start my new role on Monday - I appreciate your kind words. There were some stressful times over the last few months. Its good to come out of the other side intact!!