Marsh's US$30 million quarter fighting rivals over staff put a hard number on a dispute the American broking market has been running through the courts for more than a year. James Baum (pictured), WTW's CEO Pacific Region, does not expect the same fight to arrive here. His reasoning is structural rather than cultural and it rests on contractual protections that Canberra is now moving to dismantle.
The American picture is well documented. Since Howden launched its US retail business in mid-2025, it has faced lawsuits from Marsh, Aon, Willis Towers Watson, Brown & Brown and Alliant. Marsh said in court filings by early February 2026 that it had lost about 160 employees and 82 clients to Howden. Brown & Brown CEO J Powell Brown told analysts on a January 2026 earnings call that a start-up US broker had conducted what appeared to be a highly coordinated plan “to rip entire teams from its competitors, taking information and customers in the process." He said the conduct “must be addressed”.
Speaking to Insurance Business at the recent National Insurance Brokers Association (NIBA) Convention on the Gold Coast, Baum said the mechanics that make those raids possible do not exist in this market.
“But if you think about in the US, the fact that people effectively resign one day and start a new organisation the next – that is not a feature of our environment.”
For example, Australia has notice periods, he said, which leave firms better equipped to work with clients through changes in teams. The second difference he identified was how American producers are paid.
“So people are paid very high incentives to win and retain business and therefore it is very much about the relationship.”
Where servicing is spread across broad-based consulting teams, Baum said, one person leaving does not mean an account follows them. He also pointed to market behaviour: clients with good relationships are still prepared to listen to what comes next, and firms tend to settle disputes about the conduct of former colleagues between themselves.
“And I think history will show there's not a whole bunch of brokers in Australia running around suing each other like there is in the US.”
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The litigation record broadly supports that, with one qualification. Australian brokers do go to court, one or two people at a time rather than two hundred. In AEI Insurance Group Pty Ltd v Martin (No 4) [2024] FCA 1110, the Federal Court ordered a former account manager at the heavy vehicle broker to pay $500,000 in damages for soliciting AEI clients to a competitor. Justice Thawley held a 12-month restraint reasonable in part because insurance policies run annually, so the restraint covered one renewal.
That is the Australian shape of the problem: individual producers and the client books that move with them, policed through restraint clauses the courts have been willing to uphold where they are drafted tightly. It is not the American shape of mass team lifts and trade secret claims. Experienced producers are also getting scarcer, with NIBA's Data to Direction report, published in June 2026, finding that an ageing workforce and a thin talent pipeline now sit at the centre of the profession's workforce problem. Much the same situation exists in New Zealand.
Baum flagged the caveat himself, referring to changes potentially coming down the pipe on non-compete clauses.
Treasury released the exposure draft of the Competition and Fair Work Legislation Amendment (Banning Unfair Non-Competes) Bill 2026 on September 7 2026, with consultation closing on October 2 2026. Nothing has passed Parliament and the detail can still change.
In its current form, according to Treasury's website consultation hub, the draft bill would ban non-compete clauses for employees earning at or below the Fair Work Act high income threshold of $190,000. It would also ban co-worker non-solicitation clauses for all employees regardless of income. This clause is the one a brokerage would rely on to stop a departing executive recruiting their former team, which is the mechanism at issue in the American cases.
According to analysis published by law firm Allens, a surviving restraint could protect only two interests: confidential information and client relationships gained through the employment. The explanatory material makes clear that an employer’s interest in “maintaining a stable workforce” would no longer qualify. Cascading restraints, which set out multiple fallback distances and time periods in the hope a court enforces one of them, would be banned outright. Simply including a prohibited clause in a contract would expose the employer to a financial penalty, whether or not it ever tried to enforce it.
A separate limb of the draft reaches agreements between firms rather than contracts with staff. A deal between two businesses not to hire each other’s employees would become a form of cartel conduct, the collusion offence that already covers price fixing and market sharing, and would be enforceable by the Australian Competition and Consumer Commission (ACCC).
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New Zealand is moving the same way on a slower and less certain track. Labour MP Helen White's Employment Relations (Restraint of Trade) Amendment Bill, a member's bill, would make restraints unenforceable against employees earning less than three times the minimum wage, cap them at six months and require employers to compensate restrained staff. It was introduced in September 2022 and passed its first reading in July 2023 and a select committee the following year. According to the New Zealand Parliament website, the bill is still waiting for a second reading.
What survives in the Australian draft could be instructive. Reasonable notice periods also sit outside the non-compete definition, as does gardening leave, where a departing employee stays on full pay but is kept away from clients and systems until their notice expires. Properly targeted confidentiality obligations are unaffected. Client-facing non-solicitation restraints remain available for higher earners where they are reasonable.
In other words, the two protections Baum nominated are the ones the reforms leave standing.
If the bills pass in their current forms, co-worker non-solicitation clauses will not simply be unenforceable. In Australia at least, writing one into a contract would itself carry a penalty. A brokerage’s protectable interest would narrow to the client relationship rather than the team and notice periods and gardening leave would carry more weight than they once did. Firms that lose one cause of action tend to reach for the ones that remain and confidential information and client solicitation are exactly what the American suits are built on. Whether that keeps Australian broking out of the courtrooms or helps push it inside will be the test of Baum’s prediction.
