Navigating Non-Compete Agreements: Employee Rights and Employer Restrictions


From insider industry knowledge to Intellectual Property debates, non-compete agreements have become a standard feature of employment contracts across Australia. Also known as restraint of trade clauses, these agreements play a crucial role in protecting an employer’s business interests. However, they must also respect the rights of employees. In this blog, we will look at the intricacies of non-compete agreements, examining their purpose, employee rights, enforceability, and the art of negotiation.

Understanding Non-Compete Agreements

Non-compete agreements, as the name suggests, are contracts between employers and employees that seek to restrict employees from working for a competitor or starting a competing business for a certain period after leaving their current employment. These agreements serve multiple purposes, such as protecting trade secrets, maintaining customer relationships, and preventing unfair competition. Most employees never look at this part of their Employment Contract when they start with a new employer, and that can be a crucial oversight. 

Industries where non-compete agreements are common include technology, healthcare, finance, and manufacturing, where proprietary knowledge and client relationships are integral to a company’s success. 

Balancing Employee Rights and Legitimate Business Interests

Non-compete agreements must strike a balance between safeguarding an employer’s legitimate business interests and respecting an employee’s rights, so the scope of these agreements is critical in achieving balance. 

Time Limitations:

The duration of a non-compete clause should be reasonable, and while they typically range from a few months to a few years this timeframe is based around skills and expertise relevant to the role. A court can assess what restraint period might be appropriate to the specific industry, job role, and the time it would take for an employee to regain their skills and re-enter the workforce to help determine this.

Geographical Boundaries:

The geographic scope should be limited to areas where the employer does business or has genuine interests. Overly broad geographic limitations are likely to be deemed unenforceable. 

Industry Relevance:

The scope of non-compete agreements must be directly related to the employee’s job role, avoiding undue restrictions. An agreement limiting a software developer from working at a bakery would likely be deemed unreasonable. 

Legal Standards for Enforceable Non-Compete Clauses

In Australia, the enforceability of non-compete agreements depends on meeting specific legal criteria. Courts consider several factors such as: 

Reasonable Protection:

The agreement should protect the employer’s legitimate business interests, such as confidential information and client relationships. It should not be overly broad or excessively restrictive. 

Public Interest:

Courts also assess whether the agreement is in the public interest. An excessively restrictive clause that hinders an individual’s ability to find employment might be deemed unenforceable. 

Good Faith and Fairness:

The agreement must be entered into in good faith, and the terms should be fair and transparent. Employees should fully understand the scope and consequences 

The Art of Negotiation and Challenging Agreements

Negotiating a fair non-compete agreement is key for both parties. While employers must offer reasonable compensation or benefits in return for an employee’s commitment not to compete, employees should review the terms, seeking legal advice if necessary, and negotiate clauses that are fair, considering the industry norms and their own career prospects. 

If an employee believes that the agreement is unreasonable, they have the right to challenge it in court. In some cases, a court may modify or invalidate the agreement if it is found to be overly restrictive or contrary to public policy. The Maguire & McInerney Employment Law team have a wealth of experience across the sector, and can help ensure your contracts are properly executed. 


Non-compete agreements are valuable tools for employers to protect their business interests, but they must be crafted with care to respect employee rights and be legally enforceable. Employers and employees alike should understand the scope and limitations of these agreements, negotiate fair terms, and be prepared to challenge agreements that are overly restrictive. Finding the right balance between protecting legitimate business interests and upholding individual rights is key to navigating the complexities of non-compete agreements in the Australian workforce.

Whether you have been presented with a non-compete agreement or you are looking to roll them out across your organisation, Maguire & McInerney are here to help – book an initial call today.