The issue here isn't always one of fair competition, it's sometimes one of theft. It's not unheard of that an employee who is looking to set up on their own will start to spruik whilst still employed by someone else or they will steal lists of patients to start their new venture.

The worst case I've heard of was a practice that was moving 3 doors away. Two of the four physios’ decided to take the lease on the existing premises and were secretly telling their patients to come back and see them. They were also collecting copies of forms, lists, policy documents and everything else they needed to start their own business without the hard work or risk usually associated with such ventures. I even heard of an ex employee that threatened legal action if the practice didn't direct all 'his' old clients to his new business.

Hence, restraint clauses are often used to allow an existing practice a short time to transfer their patients to a new practitioner before facing competition. It can level the playing field (if well drafted). Restraints that prevent simple re-employment are usually unenforceable.

Maybe an agreement that says "you will not steal ...." would be more effective however employees and unions may see that as a little affronting.

www.physiotherapy.asn.au/pba