Are Restraints of Trade Really Enforceable?

What are restraints of trade?

Restraints of trade are often incorporated in employment contracts to protect the employer in various ways. The most common types of employment restraints include:

1. Non –disclosure clauses which protects the confidential information of an organisation;
2. Non –solicitation clauses to ensure that the organisations’ customer base is not solicited;
3. Non-compete clauses which puts a restriction on the employee from competing with the employer post-employment for a specific period of time.

The courts have been reluctant to enforce restraints of trade due to public policy reasons and the potential it can have on an employee’s livelihood. On that basis, the starting point is that restraints of trade are unenforceable. So, are restraints actually useful and should organisations use them more?

If restraints of trade are drafted carefully then they can be an extremely useful tool for employers and in fact be enforced to protect the interests of a business.  The starting point for a restraint of trade clause is that it must be reasonable and only used to protect legitimate business interests.

So what factors should you consider?

1. TIME – the length of time that the restraint is active must be considered. If the restraint extends for a long period of time it is likely that the restraint will be enforceable.
2. RADIUS – restraint clauses often cover a specific radius specifically in relation to non-compete clauses. You need to ensure that the radius only extends to areas that are reasonable.
3. ACTIVITIES – Post employment restraints will seek to prevent an ex-employee from joining competitors or soliciting clients. The activities that the restraints cover must be carefully considered to ensure that they are reasonably adapted to the business activities only.

You should also consider factors that are specifically related to the individual employee:

1. You should assess the frequency of the former employee’s communication with clients and whether that contact is of any significance.
2. You should assess whether the employee forged any connections with customers and whether those connections are of significance.
3. In assessing the former employee’s connections you should also determine the length of time it would take for a new employee to forge those connections.
4. Whether the former employee had access to confidential information.
5. The link between business activity and customer, worker and supplier relationships.

Getting legal advice

Given the notoriously unenforceable nature of restraints your best starting point is to seek legal advice. JFM Law can review the specific provisions in your employment contracts and ensure that it is enforceable and legitimately adapted to protect your organisations business interest. Contact JFM Law on (02) 9199 8597 for a no obligation chat. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au

The information contained in this post is current at the date of editing – 19 January 2024.