The FAAA highlights that while non-compete clauses are often deemed unenforceable under existing common law, there is a necessity for legislative backing to restrict the establishment of intimidating or ambiguous clauses in employment contracts. This viewpoint was outlined in their submission to Treasury's review on 'Reform to non-compete clauses and other restraints on workers', emphasising the need to uphold efficient labour market operations.
However, the FAAA also points out the importance of preserving business interests, including safeguarding confidential information, maintaining client relationships, and ensuring workforce stability. Two specific concerns arise within the financial advice sector. Firstly, protections for investments into training professional year (PY) candidates. Secondly, the incorporation of reasonable non-solicitation clauses that reflect the inherent value of financial advice client relationships.
The association argues for the enforcement of non-solicitation clauses for up to 12 months after an adviser departs a firm, ensuring businesses have sufficient time to transfer client relationships to new advisers. Such measures are crucial, the FAAA believes, to maintaining the firm's stability and value, asserting that these clauses should only restrict active solicitation rather than inhibit clients from leaving by choice.
This debate over client ownership and the commodification of client relationships has persisted within the industry. Nonetheless, the FAAA posits that preserving client non-solicitation clauses is vital for safeguarding the financial stability of advisory businesses. They assert that when an adviser opts to start their own firm or acquire a client's book, it is imperative that these transactions occur with contractual assurances against client solicitation.
The FAAA also addresses the dilemma of investing in PY advisers. Given their susceptibility to being targeted by competitors post-training, they suggest the implementation of non-compete clauses valid for up to two years post-PY completion. Such clauses, they argue, are justified, as they grant employers the confidence to invest in new talent without the impending threat of them being enticed away.
Ultimately, the FAAA stresses the necessity of a balanced approach in non-compete reform. They maintain that while protecting employees' mobility is crucial, safeguarding businesses’ investments and preserving the value of financial advice enterprises are equally compelling priorities.
