Hairdresser Applies "Competition Restriction" To Draw Controversy.

Zhang Wanwen, a hairdresser and migrant worker, entered the New District of Xi'an. When he was in Beijing, he signed a competition commitment letter with the shop owner. He promised not to open a replacement shop or work in the same city after he resigned, otherwise he would make a compensation of 300 thousand yuan. 4 years later, Zhang Wanwen left his office and opened a replacement store near Beijing's new store. He was prosecuted by the other party. The court of first instance supported Zhang Wanwen's compensation shop and sentenced him to pay 60 thousand yuan, but the court of second instance ruled that Zhang Wanwen should not. compensate for 。 The competition between a hairdresser and a hairdresser has attracted wide attention.

Zhang Wanwen refused to accept the first instance decision. He thought that he did not sign a confidentiality agreement with the Beijing Sheng repo shop, nor did he stipulate the terms of competition in the labor contract. And Jing Sheng reissued shop did not agree with him on economic compensation, appealed. In this regard, Sun Peng, former arbitrator of Chaoyang District, Beijing, told the workers' Daily reporter that according to the twenty-fourth provision of the labor contract law, the persons with limited competition must be limited to the senior management personnel, senior technicians and other personnel who have the obligation of confidentiality, rather than ordinary employees or workers, and not all employees, that is, the object of a competition agreement must be a person who knows and understands business secrets.

Then, it is not agreed to give laborers' economic compensation, is the competition restriction clause effective? Sun Peng said that this problem is a common problem in the judicial practice of employing units and laborers to discuss disputes over competition restrictions, but the labor contract law and the labor contract law implementation regulations have not provided for this. The interpretation of the Supreme People's Court on Several Issues concerning the application of laws in labor dispute cases (four), which was implemented in February 2013, has not explicitly stipulated this issue. The opinions of different courts are not uniform.

The reporter noted that the twenty-sixth Guangdong Provincial Higher People's court and the Guangdong labor dispute arbitration committee on the application of the "labor dispute mediation and Arbitration Law > < Labor Contract Law > several guiding opinions" points out that the employing unit and the laborers agree on the competition restriction, and shall give the laborers economic compensation within the time limit of the competition. When the completion of the handover is completed, the terms of the competition restriction shall not be binding on the laborers.

However, the Beijing Higher People's court and Beijing labor dispute arbitration committee Labor dispute The thirty-ninth article of the Symposium on the application of cases law stipulates that employers and workers agree on the terms of competition in labor contracts or confidentiality agreements, but do not agree on the payment of compensation fees or the standard of specific payment. Therefore, it is not necessary to conclude that the articles of competition restrictions are invalid, and the two sides can remediate them through consultation. However, if the employer expressly does not pay the compensation fee, the terms of the competition restriction shall not be binding on the laborers. But reporters found that Shaanxi did not make clear provisions on this issue. In the trial of the intermediate people's Court of Xi'an, it is considered that the persons with limited competition shall be limited to the senior managerial personnel, senior technicians and other personnel who have the obligation of confidentiality.

In November 2016, the intermediate people's Court of Xi'an pointed out that in this case, the employer failed to provide effective evidence that it and Zhang Wanwen had agreed on the commercial secrets of the employing units and the confidentiality matters related to intellectual property rights, and did not provide effective evidence to prove that Zhang Wanwen was a laborer with a duty of confidentiality and that he was relieved or terminated. Labor contract After paying the economic compensation in the period of the new competition, Zhang Wanwen did not exist as a precondition for violating the competition restrictions. The original judgment found that Zhang Wanwen had violated the agreement of the competition restriction and decided that Zhang Wanwen paid 60 thousand yuan for breach of the competition restriction, which should be changed according to the law.

However, some netizens believe that workers should abide by their commitments, and if they violate their commitments, they should bear the corresponding legal consequences. In this regard, Sun Peng said that in this case, it is unreasonable for employers to impose restrictions on their employees. "A migrant worker has nothing but a haircut. If he can't open a shop or work in accordance with the undertaking, it means he has to spend the rest of his life in this barber shop. The final judgment of the case once again shows that the object of the competition agreement must be a person who knows and understands business secrets, rather than ordinary employees." Sun Peng said.

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