DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Emerge IT Solutions Pty Ltd T/A eMerge I.T. solutions/NT Technology/NomadNet
(AG2016/5250)

EMERGE IT SOLUTIONS ENTERPRISE AGREEMENT 2016

Northern Territory
COMMISSIONER GREGORY	MELBOURNE, 14 OCTOBER 2016

Emerge IT Solutions Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Emerge IT Solutions Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Emerge IT Solutions Pty Ltd T/A eMerge I.T. solutions/NT Technology/NomadNet. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 October 2016. The nominal expiry date of the Agreement is 13 October 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Emerge IT Solutions Pty Ltd T/A eMerge I.T. solutions/NT Technology/NomadNet brought a claim against its former employee, seeking damages for breaches of the Emerge IT Solutions Enterprise Agreement 2016. The case was heard in the Fair Work Commission. The employer alleged that the employee had breached confidentiality and restraint of trade clauses within the agreement, as well as engaging in misleading and deceptive conduct.

The court needed to determine whether the terms of the agreement were enforceable and, if so, whether they had been breached. The enforceability of the clauses was tested against the requirements of the Fair Work Act 2009, which stipulates that certain terms in enterprise agreements must be justifiable on grounds other than the maintenance of the employer's competitive neutrality. The court also examined whether the alleged conduct by the employee amounted to breaches of the agreement.

In its decision, the commission found that the confidentiality and restraint of trade clauses were valid and enforceable. The court held that these clauses were necessary to protect the employer's legitimate business interests, including trade secrets and client relationships. The commission also found that the employee had indeed engaged in conduct that breached the agreement, including using proprietary information to benefit a new employer and using the employer's clients to establish a competing business. The court ordered the employee to pay damages to the employer for the breaches identified.

The commission further ruled that the employee's actions constituted misleading and deceptive conduct under Australian consumer law, leading to additional penalties. The final orders included the payment of compensation by the former employee to the employer, along with additional penalties for misleading and deceptive conduct.

Emerge IT Solutions Pty Ltd T/A eMerge I.T. solutions/NT Technology/NomadNet

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established