Contractual freedom
How thoroughly do you read your employment contracts when you start a new job? I read mine back in 2018 when I first started with my previous employer. My knowledge and understanding of contractual clauses were limited at the time. However, one clause stood out - the non-compete clause and other restraints.
Per the Australian Government - The Treasury, non-compete clauses are:
“[C]onditions in employment contracts that restrict an employee from moving to a competitor. They usually define a specific period of time and/or geographic area over which the clause applies after the employee leaves the employer.”
These clauses are generally implemented to protect the employer’s proprietary rights and safeguard their clients and contacts from being poached. That reasoning is understandable in theory.
When I asked my manager what this all meant, they reassured me, saying ' Don’t worry about that, we’d never enforce it…’ So, I stayed in the job, not giving it much further thought. A few years later, management changed, the workplace culture shifted, and I ruffled some feathers by speaking up about issues in the workplace. Upon my resignation, I was suddenly concerned about that clause. It meant I could not work as an audio engineer for a “period of 12 months” after leaving. I couldn’t work in another studio, start my own audio-engineering business, or work with my clients if they had booked services via my employer’s website.
The Australian Treasury has found that these non-compete and restraint clauses create a climate of fear for employees, discouraging job mobility. This restriction hampers competition, wage growth, productivity and innovation in the workplace. One in five Australians is currently subjected to these clauses, which pose significant risks to livelihoods after resignation (Law Society Journal, 2024; The Ghosts of Employers’ Past, 2023).
Most restraint disputes never make it to court, often being handled privately (Law Society Journal, 2024). Whilst one could assume this prevents the risk of any legal battles, the “fear factor” remains. I would assume like myself, most people would not know this, and would similarly keep their heads down and avoid drawing any attention from their previous employers.
The music industry is difficult enough without additional contractual restraints. It’s a small industry that is overworked, underpaid and in a mental health crisis. In 2020, nearly half of the musicians surveyed held two or more concurrent jobs just to stay afloat (The Conversation, 2020). 86% of musicians reported feeling unfairly treated by the music industry, with the Federal President of MEAA Musicians highlighting that most organisations are unwilling to negotiate terms or operation models (Insecure work and poor pay forces musicians to hang up their instruments: new survey, 2024). Though many statistics focus on musicians, the same challenges apply to audio engineers, who are often underrepresented in industry surveys.
Given the prevalence of multi-job holding in the music industry, restraint clauses become particularly problematic. Enforcing them is difficult when most industry professionals rely on working multiple jobs to earn a living. It’s already challenging to secure consistent work in the music industry without the added threat of litigation just for using your skill set - or in my case, my Bachelor’s degree qualifications - outside of a single employer’s control.
The US and UK have made progress towards outright banning these clauses. Perhaps it’s time for Australia to do the same (Non-Compete Clauses in the UK and U.S.: Recent Trends, 2024). My restraint clauses have expired, the 12 months are over and a weight I didn’t know I was carrying was lifted.
