Garden leave, the right to work and restraints on trade

Date of this Version


Document Type

Journal Article

Publication Details

Interim status: Citation only.

Coulthard, A. (2009). Garden leave, the right to work and restraints on trade. Australian journal of labour law, 22(1), 87-99.

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2009 HERDC submission. FoR code: 1801

© Copyright 2009 Reed International Books Australia Pty Limited


Employers concerned to protect confidential information and customer connections after the termination of the employment relationship are often advised to include post employment restraints in the contract of employment. Such restraints may seek to cover working for a competitor, solicitation of customers and the poaching of continuing employees. Lawyers approach the drafting of post employment restraints with caution. Although courts do enforce them, there is always the concern that a court will find a restraint - even one that has been most carefully considered and drafted - goes beyond what is reasonable to protect the legitimate interests of the employer in protecting customer connections, confidential information and the maintenance of a stable workforce. Perhaps in response to the difficulty surrounding the drafting and enforcement of post employment restraints employers seem to increasingly be relying upon the practice of directing an employee to take 'garden leave' while the period of notice runs its course.

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This document has been peer reviewed.