4月16日，人力資源社會保障部、最高人民法院聯合發佈第四批勞動人事爭議典型案例，其中某保安公司申請仲裁案值得關注。

Creative illustration according to Visual China

據介紹，某保安公司主營業務是給商業樓宇、居民社區提供安全保衛等服務。2019年3月，某保安公司招聘李某擔任保安，雙方訂立期限為2年的勞動合同，工資為3500元/月。勞動合同約定保安的主要職責為每日到某商業樓宇街區開展日常巡邏安保工作，同時內附競業限制條款，約定“職工與某保安公司解除或終止勞動合同后1年內不得到與該公司有競爭關係的單位就職，職工離職后某保安公司按月支付當地最低月工資標準的30%作為競業限制經濟補償。職工若不履行上述義務，應當承擔違約賠償責任，違約金為20萬元”。

In 3 years and 0 months, the labor contract between the two parties expired and was terminated, and Li did not renew the labor contract and joined another security company as a security guard. A security company believes that Li violated the non-compete agreement by going to work as a security guard in another security company; Mr. Li believed that as a security guard, he did not understand or grasp the company's trade secrets, and he was not a qualified entity to perform the non-compete obligation. A security company applied to the arbitration commission for arbitration, requesting that Li be awarded liquidated damages for non-competition.

According to reports, the focus of the dispute in this case is whether Li is a qualified entity to perform the non-compete obligation. Paragraph 1 of Article 23 of the Labor Contract Law of the People's Republic of China stipulates that "the employer and the employee may agree in the employment contract to keep the employer's trade secrets and confidential matters related to intellectual property rights"; Paragraph 2 stipulates that: "For an employee who is obliged to maintain confidentiality, the employer may stipulate a non-compete clause with the employee in the labor contract or confidentiality agreement, and agree that after the termination or termination of the labor contract, the employee shall be compensated monthly during the period of non-competition." If the employee violates the non-compete agreement, he shall pay liquidated damages to the employer in accordance with the agreement"; Paragraph 1 of Article 24 stipulates that "the personnel subject to non-competition restrictions shall be limited to the senior management personnel, senior technical personnel and other personnel with confidentiality obligations of the employer". The first two clauses positively stipulate that the employer has the right to agree on a post-employment non-compete clause with the "employee who has a duty of confidentiality", while the latter clause reversely limits the scope of non-compete personnel to "senior management personnel, senior technical personnel and other personnel with confidentiality obligations". Therefore, when an employer agrees with an employee other than "senior management and senior technical personnel", the non-compete clause should be premised on the employee's confidentiality obligation, i.e., the employee's position or position in the employer is sufficient to enable them to know the employer's trade secrets and confidential matters related to intellectual property rights.

In this case, Mr. Li's main duty was to carry out daily patrols and security work in the blocks of commercial buildings, and it was obviously difficult for him to know the trade secrets and confidential matters related to intellectual property rights of a security company, and the security company had no evidence to prove that Mr. Li had the possibility of accessing confidential matters such as the company's trade secrets, so Mr. Li was not a qualified subject for the non-compete obligation. A security company and Mr. Li agreed on a non-compete clause, which did not comply with the provisions of Articles 23 and 24 of the Labor Contract Law of the People's Republic of China on eligible entities for non-compete obligations. Therefore, the non-compete clause was not binding on both parties, and the arbitration commission did not support the request of a security company to require Li to pay liquidated damages for non-competition.

Red Star News reporter Qi Biao

Edited by Guo Zhuang and edited by Guan Li

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