Waikato Business News March/April 2017

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12 WAIKATO BUSINESS NEWS March/April 2017 Restraints of trade - some things you need to know EMPLOYMENT LAW > BY ERIN BURKE Employment lawyer and director at Practica Legal Email: erin@practicalegal.co.nz phone: 027 459 3375 J5371P Hamilton Monthly Property Report SNAP SHOT OF WHAT HAS BEEN HAPPENING IN THE MARKET PLACE OVER THE PAST MONTH. Sales volumes for the Waikato/ Bay of Plenty Region compared to January 2017 rose 52%, with sales rising 83% in Hamilton, and 53% in Rotorua and Tauranga. Compared to February 2016 sales across the region fell 24% with sales falling 14% in Hamilton. The median price across the region rose $57,500 compared to February 2016. Compared to January the median price fell $2,000, with prices rising 1% in Hamilton. The number of days to sell improved by one day compared to January, from 44 days in January to 43 days in February. The number of days to sell eased by seven days compared to February 2016. Over the past 10 years the average number of days to sell during February for Waikato/Bay of Plenty has been 61 days. REINZ Regional Director, Philip Searle noted that, “Interest from Auckland is picking up once again in Hamilton and Tauranga both from investors and from families relocating. Vendor expectations in these areas are starting to soften indicating that the rapid run up in prices over the past 18 months may be coming to an end.” Obviously the statistics contained within this article represent only a small fraction of the data we have at my fingertips. For more information relevant to your street or your property, call and ask for one of our team. Local market facts Hamilton City P 07 834 9570 M 027 801 9962 F 07 854 3837 VISIT www.eves.co.nz By Greg Petrin Rototuna branch manager Sales February 2017 Under $200k* 1 1 $200 - $299k* 6 30 $300 - $399k* 60 89 $400 - $499k* 62 87 $500 - $599k* 55 38 $600 - $699k* 39 34 $700 - $999k* 21 7 $800 - $999k* 15 14 Sales February 2016 $1,000,000 - $1,999,999* 3 4 $2m+* 0 1 Total number of sales* 262 305 Median sale price* $500,000 $439,000 Median days to sell* 34 27 *Statistical Information Derived From The Real Estate Institute Of New Zealand. Realty Services Ltd/Success Realty Ltd and any contractor/employee is merely passing over the information. We cannot guarantee its accuracy and reliability as we have not checked, audited or reviewed the information and all intending purchasers are advised to conduct their own due diligence investigation into the same. To the maximum extent permitted by law Realty Services Ltd/Success Realty Ltd and its contractors/employees do not accept any responsibility to any person for the accuracy of the information herein. Whether a restraint of trade is enforceable is a question that comes across my desk regularly, in equal numbers from employers and employees. The rumour that “restraints of trade are not worth the paper they are printed on” is exactly that—rumour. Part of the reason for the misunderstanding is that attempts to prevent competition are, prima facie, unlawful. This means that measures taken by an employer merely to prevent an ex-employee from competing against them, usually referred to as a non-compete clause, will not be upheld by the courts. This does not mean that a restraint of trade clause will not be upheld, however, as these clauses are different from non-compete clauses. To ensure an employment agreement contains an enforceable restraint, the employer must first establish that they have a legitimate “proprietary interest” that needs protecting. Examples of proprietary interests include client relationships, pricing and marketing strategies and client lists. It does not necessarily include confidential information alone, as most employment agreements contain both implied and express restrictions on an employee using confidential information for any other purpose than to benefit their employer, which applies both during employment and following its termination. For a restraint to be enforceable there must be a legitimate proprietary interest that warrants protection, and the restraint must be reasonable and necessary to protect that interest. Restraint clauses usually prohibit an employee from doing certain things (such as contacting or doing work for an employer’s current/recent clients) for a certain period of time following termination, often over a specified geographic location. Where the court holds that a restraint is not reasonable as it is too long in duration, too broad in scope or covering an area that is unreasonably large, the court may modify the restraint to make it reasonable, or may refuse to uphold it at all. It is therefore important to ensure from the outset that the restraint clause is reasonable. Clearly what is “reasonable” is going to vary from case to case. Some factors to consider when drafting a restraint are the seniority of the employee (key personnel would be subject to a longer restraint period than others), specifying a reasonable geographical distance from a specified location (usually the head office address or the address where the employee usually works from) and states what the employee is restricted from doing. In some cases, the restriction may only apply to soliciting (approaching) the employer’s clients. Other restrictions may prevent an employee from dealing with any of the employer’s clients that the employee has carried out work for over the past 12 months. The imposition of a restraint on an employee’s activities following termination of employment usually comes at a cost to an employer—referred to in legal terms as “consideration” which can simply be defined as “something of value.” If the restraint clause is in the employment agreement from the outset, the consideration is usually held to be the mutual promises the parties have committed to in the employment agreement. Where an employer wishes to introduce a restraint clause to existing employees, where no restraint previously existed, the employer will need to offer additional consideration, such as a pay rise or other beneficial term. Failure to do so means you are imposing an additional burden on an employee while offering nothing more in exchange for this. In that case, a court would be unlikely to uphold a restraint which extracted from an employee a promise not to do something in exchange for nothing in return. Finally, even without a restraint of trade clause, employees can still be held liable for taking steps to set up in competition against their employer while currently employed and/ or working out their notice. In the 2012 case of Rooney Earthmoving Ltd v McTague, Whiting & Bartlett three employees were found to have breached their implied duties of fidelity, trust and confidence and good faith to their employer by setting up a competing company, soliciting clients and staff and using unlawfully obtained quotes to undercut their employer and divert the work to the new company they had set up, all done during their notice period. Their employer successfully sued them for nearly $4.3 million in damages. Take home tips for employers are to ensure that their employment agreements are robust and expressly include the implied terms of fidelity, trust and good faith. Careful consideration should also be given to any restraint of trade clauses and ensure the terms are reasonable and necessary to protect a legitimate proprietary interest. SOMETHING DIFFERENT FOR yOuR NExT EvENT? With great food and coffee and an interesting space, Hamilton Airport is a great venue for your next business meeting or event. Email admin@hamiltonairport.co.nz to find out more. www.hamiltonairport.co.nz
WAIKATO BUSINESS NEWS March/April 2017 13 Bowers & Son for your Redi-Rock retaining wall solution Bowers & Son Ltd is a family owned business that has been operating in Te Awamutu for 65 years. In more recent years the company has expanded in both Te Awamutu and Otorohanga giving four manufacturing sites. We are very proud to be your local manufacturer and supplier of this groundbreaking new retaining wall product - Redi-Rock. Redi-Rock first came about in the United States back in 1999 and is now being used all around the world to create beautiful retaining walls, free standing walls, entrance ways, and much more. Uses include infra-structure, water ways, sub division, entrance ways, slip repairs, car parks, bridge abutments, commercial & residential retaining walls. Blocks are a mass retaining wall block that uses it’s size and weight coupled with a proprietary interlocking knob & groove system to help offset the mass retained behind the wall. Blocks are heavy ranging from 650 to 1500kgs but can still be lifted by a smaller 5 ton excavator. If you loved playing with Lego blocks as a kid then you will understand how Redi-Rock works. Installation is quick and easy once your base course for the foundation pad is laid. A small plate compactor is ideal to do compacting behind the wall before back fill materials are added. Walls can also be mechanically reinforced with 300mm wide geogrid fabrics which are easily feed through special PC connection slots a cost in to the blocks. There is a variety of blocks in the Redi-Rock arsenal which makes it easy to design exactly what you need for your next project. It’s simple to design corners, curves, tiered walls and walls with multiple setback options. You can also create free-standing walls, columns and steps. Redi-Rock design utilities are available on line at www.redi-rock.com. With Redi-Rock, you can choose from multiple textures that are cast locally in moulds taken from real stone. The textures we have available are Ledgestone and Limestone with a new Smooth industrial finish now available in the USA which will soon be available in NZ. Redi-Rock creates a aesthetically pleasing look, with strength and durability that can take on the heaviest of loads. It is low maintenance and stands the test of time. All blocks can be coloured with various colours and mixes to give natural stone shades to further enhance their aesthetic appeal or can be supplied as poured with a standard concrete finish. We manufacture the Redi-Rock blocks in our purpose-built Te Awamutu factory with additional manufacturing in Northland & Taranaki. If you have any enquiries or would like to know more please do not hesitate to contact our friendly team. Phone: 07 871 5209 email: sales@bowersconcrete.co.nz Bowers & Son Ltd is a Te Awamutu family owned business proud to be servicing the greater Waikato region for over 65 years. REDI-ROCK WALLS, DURACRETE TANKS, READY MIXED CONCRETE, PRECAST PRODUCTS Alexandra St Raeburne St 1852 Alexandra St Paterangi Rd A fully integrated manufacture from raw material usage to final product delivery to your site. Specialising in Ready Mixed Precast Products for industrial, agricultural, horticultural and residential applications. For all enquiries, Please contact our friendly team. 1852 Alexandra Street, Te Awamutu | 0800 871 5209 64 Otewa Road, Otorohanga sales@bowersconcrete.co.nz www.bowersconcrete.co.nz J5421P
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Waikato Business News March/April 2017

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