A non-solicitation clause is a promise in an employment or contractor agreement that the person won’t approach your clients, customers or staff to lure them away, usually for a set period after they leave. In Australia it’s a form of restraint of trade, so a court will only enforce it if it protects a genuine business interest and goes no further than it needs to.
Here’s the uncomfortable bit. Most business owners read their non-solicitation clause for the first time in the week their best employee resigns. That’s when they discover it was copied from a template written for a bank. A clause that actually works is shorter and simpler than you’d think, and with new federal laws on the way, now is the moment to fix yours.
- It stops poaching, not competition. A non-solicitation clause targets active approaches to your clients or staff. It doesn’t stop a former employee working for a competitor or starting their own business.
- Narrow beats broad. Six months covering clients the person actually dealt with is far easier to defend than two years covering everyone you’ve ever invoiced.
- Clients who come to them aren’t solicitation. If a client independently follows your former staff member, most clauses won’t stop it. Only a non-dealing clause goes that far.
- Big changes are proposed. A draft federal Bill released on 7 September 2026 would ban staff non-solicitation terms for all employees and outlaw cascading restraints. It isn’t law yet.
- Timing matters. Put the clause in the contract before the person starts. Adding one later needs something extra in return, like a pay rise.
What does a non-solicitation clause actually stop?
A non-solicitation clause stops a former employee or contractor from reaching out to your people to take them elsewhere. Courts read “solicit” as an active step: calling a client, sending a tailored offer, or asking a colleague to jump ship too.
The Queensland District Court put it neatly in Entello Pty Ltd v Firooztash [2016] QDC 050. Solicitation happens when the former employee tells a client they’re willing to do business with them and encourages the client to do it. Two parts. Both matter.
What doesn’t count as solicitation
- A client who hears the news and rings your former employee unprompted.
- A generic LinkedIn post announcing a new role or a new business.
- Your former employee using the skills and general know-how they built up on the job.
That last one surprises people. You can protect your client relationships and your confidential information. You can’t stop someone being good at their job somewhere else.
Who can it cover?
Most clauses cover one or more of three groups: clients (including warm prospects you’ve genuinely pitched), suppliers your business depends on, and your own staff. That third group is about to change, and we’ll get to why below.
Non-solicitation clause vs non-compete vs non-dealing: which do you need?
These protections get mixed up constantly, including in contracts drafted by people who should know better. Here’s how they compare.
| Clause | What it stops | How hard to enforce | Best for |
|---|---|---|---|
| Non-solicitation | Actively approaching your clients or staff | Moderate. The easiest restraint to justify | Client-facing staff at almost any level |
| Non-dealing | Doing any business with your clients, even if they make the first move | Harder. Needs a stronger reason | Senior people with deep personal client relationships |
| Non-compete | Working for a competitor or running a competing business | Hardest, and a ban is proposed for most employees | Senior executives and business sellers |
| Confidentiality | Using or sharing your confidential information | Easiest. No end date needed | Everyone, always |
Our view? For most small businesses, a well-drafted confidentiality clause plus a narrow client non-solicitation clause does the heavy lifting. Non-competes start more arguments than they settle.
Are non-solicitation clauses enforceable in Australia?
Yes, if they’re reasonable. Australian courts start from the position that a restraint of trade is void, then enforce it only as far as it protects a legitimate business interest, such as client connections or confidential information.
Reasonableness comes down to four questions:
- The role: was the person the face of your business to clients, or behind the scenes? Someone with no client contact is hard to restrain at all.
- The duration: employee restraints commonly run between 3 and 12 months. Anything longer needs a very good reason.
- The clients covered: “clients you dealt with in your last 12 months” is defensible. “Every client we’ve ever had” rarely is.
- The wording: courts test the clause as written, not how you meant to use it. If it could catch roles you’d never care about, it can fail.
In Steadfast IRS Pty Ltd v Mesuria [2020] NSWSC 947, the NSW Supreme Court upheld a 12-month non-solicitation clause against a senior employee whose whole role was building client relationships. The industry ran on annual renewals, and the employer wasn’t trying to stop the employee competing. Just poaching. That restraint matched a real risk, which is why it held.
Does your state matter?
It does. NSW is the outlier. Under the Restraints of Trade Act 1976 (NSW), a court can read down an unreasonable restraint and enforce the reasonable part. Elsewhere, an unreasonable clause can fail completely unless it was drafted with alternatives a court can pick from.
That’s why the cascading restraint clause (12 months, or if that fails 6, or if that fails 3) became standard outside NSW. Hold that thought. Cascades are squarely in the Government’s sights.
What’s changing for non-solicitation clauses in 2026?
On 7 September 2026 the Federal Government released draft legislation to ban unfair non-competes, with consultation closing on 2 October 2026. It’s called the Competition and Fair Work Legislation Amendment (Banning Unfair Non-Competes) Bill 2026. It is a draft, not law, and it could change before Parliament sees it.
What the draft Bill would ban
- Non-compete clauses for employees earning below the Fair Work high income threshold (currently $190,100), plus all casuals and pieceworkers regardless of pay.
- Co-worker (staff) non-solicitation clauses for every employee, whatever they earn.
- Cascading restraints. Law firms reviewing the draft have pointed out it’s unclear whether this reaches every restraint or only non-competes.
- No-poach and wage-fixing deals between businesses, which would become cartel conduct with serious penalties.
What would survive
Client non-solicitation clauses. The draft still permits post-employment restraints for all employees where they’re necessary to protect confidential information or client relationships, reasonable, and not drafted as a cascade. A restraint that misses those tests would simply have no effect.
Put simply, the narrow, client-focused clause this article recommends is exactly the kind the draft keeps. The staff-poaching clause sitting in most template contracts is the one on its way out.
What about contracts you’ve already signed?
Under the draft, existing restraints keep applying until the employment arrangement is varied. Vary a contract after the new law starts, even for something unrelated like a pay change, and any banned term drops out. Any remaining restraint would then have to meet the new criteria.
Scope matters too. The Bill would amend the Fair Work Act 2009 (Cth), so it only reaches employees of national system employers. That’s most private businesses. It doesn’t touch contractors, sale-of-business agreements or shareholder agreements, and some unincorporated WA businesses sit outside it.
What to do right now
- Don’t panic-edit every contract today. The Bill may change, and firms advising on it suggest waiting for the final version before overhauling templates.
- Do audit who has which restraints, and flag anyone under $190,100 or on a casual contract.
- Do write any new client non-solicitation clause with one fixed period and a tight definition of “client”. It works under today’s law and the proposed one.
- Do lean harder on confidentiality clauses and garden leave. The draft doesn’t treat either as a non-compete.
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How to write a non-solicitation clause that holds up
1. Decide who genuinely needs one
Start with roles, not people. Anyone who holds client relationships (account managers, senior trainers, lead consultants, your best sales rep) is a candidate. A back-of-house casual probably isn’t. Restraining everyone anyway makes you look less credible when you need to enforce against the one person who matters.
2. Define “client” like you mean it
This is where most clauses die. In 2026, courts in Queensland and Victoria refused to rescue vague “Client” definitions, leaving employers with nothing. Tie the definition to paying clients, a fixed look-back period, and people the employee personally dealt with.
3. Say what “solicit” means, and what it doesn’t
Name the conduct you’re restricting (approaching, canvassing, inducing) and carve out what you’re not: general announcements and unprompted approaches. Carve-outs feel like giving ground. They actually make the rest of the clause more believable to a judge.
4. Pick one period and justify it
Ask yourself how long it would take to hand each relationship to someone new. For most small service businesses the honest answer is 3 to 6 months. Write that period down once and skip the 12/6/3 ladder.
5. Get it signed before day one
Build the clause into your employment agreement template before the person starts. An earlier version of this article suggested adding one to a termination letter. Don’t. You can’t impose a new restraint on the way out unless the person agrees and gets something in return, which is the job of a deed of release on termination.
Example clauses you can adapt
These are plain-English illustrations, not legal advice. Have a lawyer check any clause against how your business actually runs.
Example 1: client non-solicitation for an employee
“Restricted Client” means any person or business to whom the Employer provided paid services in the 12 months before the Employee’s last day of employment, and with whom the Employee had direct dealings during that period.
For 6 months after employment ends, the Employee must not, directly or indirectly, approach, canvass or induce any Restricted Client to stop or reduce doing business with the Employer, or to obtain competing services from the Employee or anyone else.
This clause does not prevent the Employee from making general announcements, including on social media, that are not directed at Restricted Clients, or from dealing with a Restricted Client who approaches the Employee without having been solicited.
Example 2: non-solicitation for a contractor
For 6 months after this Agreement ends, the Contractor must not approach any Restricted Client to provide services that compete with the Services, encourage any Restricted Client to end or reduce its engagement with the Company, or induce any person engaged by the Company to leave that engagement.
Notice the staff limb in Example 2 but not Example 1. The draft Bill only covers employees, so a staff non-solicit in a contractor agreement would still be tested under the common law. For employees, we’d leave it out of any new contract now.
Worked example: the personal training studio
Say you run a PT studio and your senior trainer resigns to go mobile. Over three years they’ve built up a solid book of regulars. What does sensible protection look like?
Stopping them contacting clients they trained in their last 12 months, for 6 months, is defensible. It buys you time to introduce those clients to someone new. A clause banning them from personal training within 50km for two years isn’t, and under the draft Bill it would be banned outright for anyone earning under the threshold.
And if a client finds them on Instagram and books on their own? That’s usually not solicitation. Worth knowing before you fire off an angry email.
What we see in Lawpath consultations
Our lawyers review restraint clauses every week, for employers drafting them and for employees trying to work out what they signed. The same patterns keep showing up.
- In care and NDIS businesses, client choice beats the clause. Where participants have legal choice and control over their providers, enforcing a client non-solicitation clause is especially tough. Disputes turn on one question: who made the first move? Businesses that can’t show the worker initiated contact rarely get far.
- Owners ask for years. Lawyers talk them down to months. Plenty of business owners want restraints lasting several years. Our lawyers consistently steer employee restraints toward 6 months, which courts increasingly treat as more realistic than 12 for anyone below executive level.
- The real protection is confidentiality. In many reviews, the bigger risk isn’t the restraint at all. It’s a departing employee walking out with a client list. A confidentiality agreement and a proper exit checklist often do more than any clause. Work phones help too, because the client contacts stay with you.
- Contractors sign non-solicits when they won’t sign non-competes. Senior contractors regularly push back on non-competes but happily accept client and staff non-solicitation terms. That makes non-solicitation the practical middle ground in a negotiation.
- Adding a clause mid-employment needs a sweetener. When businesses want to add a non-solicitation clause for current staff, our lawyers recommend a refreshed agreement issued alongside something of value, like a scheduled pay increase, with the change explained in writing.
- Casual contracts make everything messier. Where each shift is technically its own contract, pinning down when a restraint period starts gets complicated fast. Under the draft Bill, casuals couldn’t be bound by non-competes at all.
What can you do if someone breaches a non-solicitation clause?
Start with evidence. Screenshots and emails showing your former employee made the approach are what win these disputes. Without proof of who reached out first, you’re guessing.
From there, the options escalate roughly in this order:
- A firm, polite reminder of their obligations.
- A letter of demand from a lawyer.
- An urgent court injunction to stop the conduct.
- A claim for damages for the business you lost.
Be honest about cost. Injunctions move fast and are priced accordingly, and damages are hard to prove. Our lawyers have described litigating over a single lost client as a coin toss. Sometimes the smarter move is protecting the next relationship rather than chasing the last one. If you’re weighing it up, a fixed-fee quote from a lawyer tells you what each step would actually cost.
Frequently asked questions
Are non-solicitation clauses enforceable in Australia?
Yes, if they’re reasonable. A court will enforce one only as far as it protects a legitimate interest, like client relationships or confidential information, and goes no further than necessary. Narrow, client-specific clauses lasting 3 to 12 months hold up best.
How long can a non-solicitation clause last?
For employees, 3 to 12 months is common, and 6 months is a realistic default for most roles. Longer periods show up in sale-of-business agreements, where the buyer has paid for the goodwill and needs time to hold onto it.
What’s the difference between a non-solicitation clause and a non-compete?
A non-compete stops someone working for a competitor or running a competing business. A non-solicitation clause only stops them actively approaching your clients or staff. It’s narrower, easier to enforce, and client non-solicits would survive the proposed federal ban.
Is it solicitation if my client contacts my former employee first?
Usually not. Most non-solicitation clauses only restrict active approaches. To stop a former employee working with clients who come to them, you’d need a non-dealing clause, and that’s much harder to justify.
Can I add a non-solicitation clause to an existing employee’s contract?
Yes, but they need to agree and receive something in return, such as a pay rise or bonus. Changing terms without that consideration risks the clause being unenforceable. Explain the change clearly in writing when you send the new agreement.
Can I put a non-solicitation clause in a termination letter?
Not on its own. A termination letter can’t impose a new restraint. If you want fresh post-employment obligations at exit, use a deed of release the employee signs in exchange for a payment or other benefit.
Will staff non-solicitation clauses be banned?
Under a draft Bill released on 7 September 2026, yes, for all employees regardless of income. Client non-solicitation clauses would still be allowed if reasonable and not cascading. The Bill isn’t law yet, so current contracts still apply.
Do non-solicitation clauses apply to contractors?
Yes, and they’re standard in contractor agreements. The proposed federal reforms only cover employees, so contractor restraints would stay governed by the existing common law test of reasonableness.
If you’ve just realised your contracts contain a two-year, every-client, 50km cascade, you’re in good company. Most small business contracts we see were borrowed from somewhere else. Fixing it takes an afternoon.
Your one next step: get a Lawpath lawyer to review your restraint clauses for a fixed fee, so your next hire signs something that actually holds up.
