By MILLIE MUROI, Economics Writer
Hidden in the job contracts of about one in five Australians are little clauses weighing down their chances of landing a pay rise or a better-fitting role.
They might, for instance, ban you from working for any of your employer’s competitors for a set amount of time – even after leaving your job. Or, they can prevent you from setting up your own business in the same industry. These are called “non-compete” clauses, and they’ve been on the rise for the past five years.
From 2027, non-compete clauses on workers earning less than $175,000 a year could be banned by a Labor government. But why are these clauses so bad? And will banning them make much of a difference for workers or the economy?
Non-competes are mostly in place to protect business interests, but in some roles, they can be reasonable. For example, they might stop a big bank employee from sharing timely and confidential information or business secrets with a competitor or prevent them from taking client relationships they’ve developed through the bank to another bank.
But in some cases, these clauses simply handcuff low-paid workers to their jobs, stopping them from seeking better jobs. Roughly 3 million Australians are affected by these clauses, including childcare workers, construction workers and hairdressers. Who knew childcare was so full of sensitive trade secrets?
Non-competes are generally not enforceable – unless a court rules that it’s “reasonably required” to protect a “legitimate interest”. But as former Fair Work Commission president Iain Ross points out, these “interests” have expanded to concepts such as a “stable workforce”.
The open-endedness also tends to benefit employers because they usually have more resources to back them up, and workers aren’t often willing to foot the legal costs and spend time arguing their case in court. A 2013 study, for example, put the cost of legally challenging the validity of a non-compete at between $20,000 and $100,000 – a year’s worth of salary or more for some employees.
Another 2020 study in the US found that non-competes tended to discourage workers from leaving for a competitor by roughly the same degree regardless of whether it was enforceable or not.
That means workers tend to just suck it up and stay in their jobs – even if it means missing out on a pay rise. And it’s often the lower-skilled and lower-paid workers with weaker bargaining power who are hit hardest.
Economic research institute e61 found people who work for companies that use these clauses are paid 4 per cent less on average than similar workers at similar firms that don’t use them. Lower-skilled workers bound by non-competes were even harder hit, earning about 10 per cent less after five years than those who weren’t bound by these clauses.
For a worker on a median wage, banning non-compete clauses could lead to a wage increase of up to $2500 a year.
But non-competes aren’t just an issue for workers. They are also a drag on the economy.
Lower job mobility – that is, less ability for workers to switch jobs – can be a downer for productivity. Why? Because they’re less able to move to jobs they might be a better fit for, and because it dampens the incentive for businesses to better themselves in order to attract and retain their workers.
Ross also points out that some of the key barriers to Australia improving its productivity include weak business investment and a slowdown in business dynamism: meaning fewer new firms, less movement of workers between firms and weak adoption of new technologies.
Banning non-competes will boost productivity because it allows workers to move to jobs they may be better at. It also forces businesses to innovate and find ways to improve the way they do things – including investing in training and support they provide to their workers – in order to stay ahead of their competition and stay in business.
Research from the Productivity Commission suggests the proposed ban on non-compete clauses could fast-track productivity and add $5 billion – or 0.2 per cent – to Australia’s GDP.
Neither major party has been game to tackle the big issues such as tax reform (which are crucial to improving our productivity and living standards), but banning non-compete clauses for those earning less than $175,000 a year is a start.
Of course, the details of this change are yet to be ironed out. And business groups have been quick to leap out against it.
The Victorian Chamber of Commerce, for example, called it “workplace overreach” while the Council of Small Business of Australia said it made life harder for small businesses already struggling with skills shortages.
There’s valid criticism that banning non-compete clauses puts some confidential information at risk. But this could be covered by non-disclosure agreements, which are less of a drag on job mobility and wages – and, in any case, the positive impacts for the economy will outweigh the negatives.
Critics also claim non-compete clauses encourage businesses to invest in areas such training and upskilling their workforces because they can be less worried about losing their workers and wasting resources if those employees decide to leave the job.
But stronger competition could also drive businesses to offer better training opportunities and foster more productive work environments to maintain their edge over competitors.
The Coalition is on the fence about the proposed change, saying it believes employees shouldn’t be “unreasonably restrained” from changing employers or starting their own business, but that small businesses shouldn’t face having their sensitive commercial or customer information “taken by an employee and given to one of their competitors”.
It’s worth noting large businesses are twice as likely to use non-compete clauses as small businesses and that non-competes tend to favour large, existing businesses over small and new firms.
There are certainly limitations in the government’s proposed policy, and details yet to be ironed out. For instance, would the change apply only to new contracts drawn up from 2027 onwards, meaning it would have no effect for the millions of Australians currently bound by them? These questions won’t be answered until the government completes its consultation process.
There’s also evidence that a full ban on non-competes – not just for those earning under a certain threshold – can have widespread benefits. Evidence from California – home to the Silicon Valley – for instance, suggests a complete ban could foster a more dynamic labour market where workers can move around more freely and share knowledge.
It’s taken a long time for the government to care enough to pursue this change – most likely because of the backlash it knew would come from business owners. But if we want agile and innovative businesses, productive workers and a stronger economy, a ban on non-competes is a no-brainer.