среда, 1 октября 2014 г.

Австралия (трудовые отношения). Что является конфиденциальной информацией? Что должен предпринять наниматель для получения помощи от суда в целях пресечения действий работника, который незаконно распространил указанную информацию? Ноу-хау работника и конфиденциальная информация.


Workplace Bulletin
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Is the confidential information in your business 

safe?

Wednesday, 1st October 2014, by Loran McDougall

In today's Workplace Bulletin:
  • How to protect the confidential information in your business
Dear Reader,

Are you adequately protecting the confidential information in your business?
Confidential information can cover information about:
  • your clients or customers;
  • the number, nature or mix of products or services you provide;
  • your marketing or business plans, strategies or methods;
  • your designs, inventions or formulae; and
  • techniques, procedures or methods that you have devised or that are required to be used in the operation of your business, including the training of employees.
Although your employees are obligated not to disclose or misuse your confidential information – and this generally applies even if the obligation is not written into an employment contract – there are things you should do to ensure that the confidential information in your business is protected. When you do these things, you also increase the likelihood that a court will consider the information to be confidential.
Today, Charles Power will take you through how you can ensure your information is confidential, and the steps you can take to help ensure a court will see it this way. He also explains what you should do if an employee misuses your confidential information, and how a court can help.
Until next time,
Jessica Oldfield
Loran McDougall
Editor
Workplace Bulletin
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How to protect the confidential information in 

your business

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
Confidential information is information that is not known in the public domain.
Information is not confidential just because an employment contract or policy provides that it is. There are steps you must take to ensure information is confidential and that a court will accept it as confidential.

When will a court accept information as confidential?
Courts are more likely to treat information as confidential and protect it from misuse if:
  • you have clearly communicated to employees that the information is confidential (it is wise to include a confidentiality clause in employment contracts so that what is ‘confidential information’ is clearly defined);
  • you have taken steps to treat the information as confidential;
  • you have used considerable skill and taken a lot of trouble and effort to acquire the information;
  • it would take a competitor or potential competitor the same amount of effort to obtain the information (other than if it were leaked from your business);
  • people in your industry would regard the information as confidential; and
  • you are specific about what information is confidential and you can distinguish that information from an employee’s know-how.
According to courts, know-how is the knowledge and skill acquired by an employee through their experience and self-development. A court will not grant a remedy to protect confidential information if it is inextricably bound up in an employee’s know-how.

What if an employee misuses your confidential information?
If an employee misuses your confidential information, you should act quickly. This is not only because it will minimise the potential damage to your business, but also because a court is less likely to assist if you have delayed dealing with the issue.

Steps you can take include:
  • retaining all available evidence of the employee’s actions;
  • blocking the employee’s access to the computer system; and
  • applying to a court for an order to restrain the employee’s conduct.
A court may make an immediate order, called an injunction, to stop further misuse of confidential information, as long as you can:
  • establish that you have an arguable case;
  • demonstrate that if no order is made before the final hearing, it is possible that no amount of compensation could make good the damage; and
  • show that the ‘balance of convenience’ favours an order being made.
The balance of convenience involves a court weighing up the advantages and disadvantages that would arise for the employer and the employee if an injunction is not granted versus those that would arise if an injunction is granted.

Regards,
Charles Power
Charles Power
Editor-in-Chief

Employment Law Practical Handbook



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