RECENT ASSIGNMENT

Table of Contents
Answer (i): 3
Answer (ii): 4
Answer (iii): 5
REFERENCES: 11
Answer (i):
PERMANENT INJUNCTION
Permanent Injunction refers to the final order of a court which refrains a person or entity from doing a certain set of activities permanently. A permanent injunction is different from a preliminary one where an order is issued by the court pending the result of an ongoing lawsuit or petition praying for a permanent injunction.
EQUITY
Courts are allowed and permitted to use their own discretion and adjudge in accordance with the rules of natural law and to decide the difference between law and equity is the right of the jury. When monetary damages are claimed the person, he is entitled to a trial by the jury in case the amount exceeds one specified by the statute. Whereas, on the other hand, when a non-monetary relief is being seeked, the case is supposed to be adjudged by a single judge and not by a trial. In cases where both monetary and equitable relief is claimed then in such a case, a jury will be in charge of adjudicating the issue involving monetary relief and a single judge will be in charge of adjudicating the one involving the other issue. While dealing with cases based on equity, the judges are usually guided by precedents but they are free to adjudge as exercising their discretion and they can rule contrary to the precedent.
AGENTS
An agent is a person who is given the authority to act for another (i.e., the principal). Such authority can be granted through employment, by contract or apparent authority. The relevant point here is that the agent can bind the principal by contract or create liability if he/she, while acting in the agency, cause an injury. The question as to whether a person is acting in an agency or not is one to be decided on facts.
Answer (ii):
REMEDIES
In the event of a breach or threatened breach by the Employee of any of the provisions of this Agreement, the Employee agrees that the Employer is entitled to a permanent injunction, in addition to and not in limitation of any other rights and remedies available to the Employer at law or in equity, in order to prevent or restrain any such breach by the Employees or by the Employee’s partners, agents, representatives, servants, employees, and/or any and all persons directly or indirectly acting for or with the Employee.
If the Employee (i.e., a party to the contract) either actually acts against, or threatens to act against one or more of the provisions of this agreement, the Employer (the other party to the contract) has the right to ask the court to pass an order to refrain the Employee from doing the same separately or along with the other remedies available to the Employer whether in Australian Codified Law or in equity in order to prevent the speculated breach by the Employee or by his partners, agents, representatives, servants, employees or anybody else who is either directly or indirectly acting on behalf of the Employee.
Answer (iii):
Term: JOB TITLE AND DESCRIPTION
The Employer cannot unilaterally and significantly change the Employee’s job title or duties. The Employee’s job title or duties may be changed by agreement and with the approval of both the Employee and the Employer.
Rule 1: Since the term mandates the consent of both the Employer and the Employee for significantly changing the Employee’s job title or duties, it is essential to the contract.
Rule 2: Since the term forms an essential part of the contract considering the contract as a whole, the breach of this term will result in breach of the contract as a whole.
Application: The job profile and terms of employment are an indispensible part of the contract, and non-compliance can amount to a termination of the contract along with the claim for damages.
Conclusion: Therefore, the given term is stipulated as a condition in the contract.
Term: EMPLOYEE COMPENSATION
The employee shall be entitled to be paid wages by the employer in turn for the services rendered by the former. These wages shall include the monthly wages, which would be paid twice a month, and also any overtime wages as per the law. Further, the employee shall be paid bonus at the discretion of the employer and the employee cannot claim the same as a matter of right. The employer when supported with enough documentation shall pay travel allowance etc.
Rule 1: Wages form the basic consideration for the services provided by the employee and hence, any alteration in the mode of payment or amount paid shall significantly affect the contract as a whole and the performance of the same.
Rule 2: The payment of wages form an essential part of the contract in view of the contract as a whole, the breach of the same would amount to a breach of the contract in entirety as the employee i.e. the other contracting party would be effected majorly.
Application: Since the payment clause is what governs the consideration part of the contract and as consideration form the basic essentials of any contract to be enforceable, the payment of wages clause is indispensible and its non-compliance may amount to the repudiation of the contract.
Conclusion: Therefore, the given term is a condition stipulated contractual term.
Term: SUPERANNUATION
If the law so demands, the employer shall contribute to the superannuation fund or make a payment in the retirement savings account, once the employee has qualified for the same. The payment or contribution so made shall be made in writing with one such contribution every quarter.
Rule 1: Superannuation may or may not be made by the employer as the same depends on the requirement by law and qualification of the employee. Its execution may or may not significantly affect the execution of the contract. But it is a term as it is legally required and can be claimed as a matter of right in a contract pertaining to employment.
Rule 2: Contribution to the superannuation fund is a legal requirement but it does not suggestively and blatantly effect the performance of a contract.
Application: Non-application of the superannuation term would not lead to the termination of the contract and it can easily be negotiated and remedied.
Conclusion: Thus, superannuation is warranty under the contract.
Term: CONFIDENTIAL INFORMATION
The confidential information clause precludes an employee to share any confidential and important data and information concerning the business operations, management techniques, technical knowhow, software systems, customer preferences and clientele with any party not employed by the same employer. It also includes any information rendered to or by the third party and does not refer to any general concern or issue or any information that is not particular to the business of the employer. The information here must be reasonably connected to the business.
Rule 1: It forms an extremely important part of the contract as an understanding between the employer and his employees and effects the smooth functioning of the business. It is done to ensure that the employer’s information will not be mishandled.
Rule 2: Any instance of there being a flout in the compliance with this provision, the entire contract may be terminated and such non-compliance would amount to a breach of the entire contract, as a whole.
Application: Based on the above rules, confidential information forms an essential term of the contract and there can only be termination of the contract as the information once leaked will cause losses to the employer.
Conclusion: The above-mentioned term of confidential information is therefore a stipulated condition as mentioned in the contract.
Term: TERMINATION
The contract may be terminated due to discontinuation of the business of the employer and the contract of employment shall at the discretion of the employer be scrapped on the last day of the month when he ceases operations in the business.
Rule 1: The termination clause is an important term in the contractual agreement and hence termination due to discontinuation of business is also a term.
Rule 2: Though an important term, this does not affect the performance of the contract in a way that non-compliance with the same and the employer acting in his discretion will not amount to a termination of the contract.
Application: The term is negotiable and can be easily remedied despite being important.
Conclusion: The term is therefore a warranty.
Term: DUTY TO DEVOTE FULL TIME
The employee is duty bound to devote as much time as stipulated and required to fulfill and accomplish all tasks assigned to him by the employer.
Rule 1: It stipulates the code of conduct of the employee so it is a term.
Rule 2: The term is important so long as it defines the duty of the employee and its extent but it is only a condition of service and not gravely important to the performance of the contract.
Application: The term is negotiable and non-compliance does not amount to termination of the contract.
Conclusion: Thus, the term is a warranty.