Where’s Tova? How restraint clauses are reshaping the media
Sunday, 8 March 2026
Legal tactics are understood to be keeping two high profile broadcasters off the air, but the union representing journalists says it’s not just big names being affected. Stewart Sowman-Lund reports.
If you switched on TVNZ’s Breakfast when it returned to our screens earlier this year expecting to see Tova O’Brien at the desk, you would have been left disappointed.
Similarly, for fans of John Campbell, he was nowhere to be heard on Morning Report when the RNZ programme relaunched in January.
While the two high-profile hires were loudly touted by their new networks late last year, neither will be making their on-air debuts for a few more weeks - O’Brien on March 30 and Campbell next month.
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For both shows, the logical time to launch a new presenting line-up would have been the start of this year. But instead, it’s understood both presenters were prevented by their former employers from taking up their new roles due to restraint of trade clauses in their contracts.
The union representing New Zealand journalists believes there has been an “uptick” in the number of employees facing the strictures of such clauses when trying to change jobs.
It’s a move traditionally designed to prevent trade secrets from being shared, but, says one Labour MP hoping to restrict situations in which they can be used, is increasingly being used by companies with “deep pockets” against some vulnerable employees.
O’Brien is no stranger to this; her departure from Newshub at the end of 2021 to kick start the since-defunct radio network Today FM was delayed by a restraint of trade battle that made its way to the Employment Relations Authority.
The court ultimately sided with O’Brien’s former bosses at Discovery, though reduced the time she would be off air down to seven weeks.
O’Brien, speaking to the Sunday Star-Times, called for a “moratorium” on such clauses being applied in the shrinking media sector, saying “[they should] only apply restraints where it’s fair and reasonable, and in genuine cases of competition”.
Previous cases have involved Hilary Barry, who delayed her move from TV3 to TVNZ in 2016, and former Newshub newsreader Mike McRoberts, who won a case releasing him from a TVNZ restraint of trade clause in 2001.
But it’s not just high-profile talent being caught up. The E Tū union that represents journalists has claimed such clauses are increasingly being employed to stop people from moving between companies, though it does not have numbers to back up this assertion.
“Employers seem to be trying to use the Tova case to frighten journalists into staying with them and it is particularly concerning when used to prevent journalists from progressing to more prestigious or higher paying roles in different spaces,” E Tū’s director for media, Mat Danaher, said.
The Star-Times has been told of three instances involving junior or intermediate employees at media network NZME, owners of Newstalk ZB and the Herald, where the company was said to have attempted to restrain their outgoing staff member from working elsewhere in the local media for a period of time.
In one case, involving a producer in their mid-twenties, the individual’s new employer allegedly intervened to stop the restraint being applied.
NZME did not address specific questions from the Star-Times, with a spokesperson only saying that restraints were “role dependent” and used “on a case-by-case basis”.
Meanwhile, TVNZ said while it couldn’t comment on specific employment matters, “in principle” the company took a “pragmatic approach to restraint clauses, applying them reasonably and in line with the circumstances of each role and situation”.
Stuff, owners of this paper, said it will “on occasion” agree a restraint of trade provision with key staff. “These remain confidential to the two parties involved.'
However, a spokesperson said the company had “no idea” on what information the union was basing its claims about an increase in restraints being used. “We can confirm that Stuff is not seeing an increase in restraints on people who we employ, or in our own employment agreements.'
Those on the company’s collective union contract are not subject to restraint clauses.
RNZ simply said: “This one is pretty straightforward for us, restraints of trade are not part of RNZ employment contracts and are therefore not used by the organisation.”
Employment lawyer Blair Scotland said the theory behind a restraint of trade was to protect an employer’s proprietary information, which could mean things like “pricing information, sensitive client data [and] margins of sales”.
While enforcing a clause against a younger member of staff may be challenging, Scotland believed fighting back could be even harder.
“If you're relatively new into the workforce … you're faced with a difficult position in terms of resources. The media company that you might have worked for, that you're in the process of leaving, has got probably all the resources in the world - hot and cold running lawyers, you name it,” he said.
“Whereas your poor old employee, maybe you’re flatting, [or] in your first role, you probably don't have the resources available to you to fight a case.”
Danaher said while the union did not keep numbers on the issue, he believed there had been an “uptick” in cases involving restraints of trade.
“Often it is a case of employers threatening to use them and then people feeling intimidated and staying or having to seek union support and advice to extract themselves from employers,” he said.
Labour MP Helen White has a private member’s bill sitting on the parliamentary order paper that she claims would address this concern.
The bill, awaiting its second reading, but unlikely to be supported by the current government, would prohibit employees who earn less than three times the minimum wage from being subject to restraint of trade provisions in employment agreements. It would also introduce compensation for those who were still subject to restrictions.
White, herself a former employment lawyer, said restraints were being used more frequently across the board, even appearing in the MBIE employment contract builder.
“I don't think it was correct, but there is a complete chilling effect,” she said of Tova O’Brien’s 2022 case.
While O’Brien was able to go to court, that’s not possible for everyone.
“What it shows, I think, is that even people who we would consider have a lot of power over their own destiny, don't actually have as much power as we think. In a small market, if that is the terms upon which their employment is offered, it's very hard for them to resist that, and it doesn't mean it's right or fair.”
White says it was unjust if younger or less experienced workers were being threatened with restraints from being able to go elsewhere.
“They need to be able to take the skills that they've got and build on them and develop their career. And these abuses are stopping good, talented people from earning a decent living and moving on in their career, and as a consequence, we have low productivity in this country,” she said.
“It's bad, it's unfair, and we are not being realistic about the nature of the bargaining power of those people.”
It was a problem with the law in general, she said, that companies with “deep pockets and who have been longer in the game do weaponise legal contractual terms, and they do it often against the public interest [and] in an anti-competitive way”.
In the case of a younger worker, the possibility of a restraint may often be enough to stop them from leaving.
“[They] can't really take their former employer to court over that, because if they do, it will take months and months and months. It will cost a lot of money. It will create bad will. They will get a bad reference. Those are all reasons why that's not a realistic pathway,” she said.
“And our job as legislators is to see the world as it is, not as the world as we'd like it to be, and to protect people like that and free them up to participate in society.”
Both the National and ACT parties have expressed concern with White’s bill; the latter said it could discourage entrepreneurship and disproportionately favour big business.
White said that wasn’t true, and urged ACT to rethink its position as a party in support of the free market.
“If you don't have restraints, people can come to you as a small business. I've seen restraints [for] childcare workers, where, in fact, a childcare worker can't work in their own community anymore, and they must travel a long way so they don't move at all.
“That deprives the childcare worker of an opportunity to earn more money, but also the small business that could offer work to that person.”
ACT’s small business spokesperson Laura McClure said the party was cautious of “blanket prohibitions” that interfere with the ability of consenting adults to negotiate terms of employment, and said the courts could address restraints found to be unreasonable.
E Tū’s Danaher said the union’s advice was always to check the restraint clause in any new agreement before signing. [“The] restraint of trade should have very specific restrictions around the deliberate stealing of an audience or customers from one business to another,” he said.
“A journalist moving from one publication to another or one media outlet to another is not engaged in that unless they, for example, use their existing platform to drive [the] audience to their new platform.”