In the special employment situation of labor dispatch, which separates employment and use, the owners and knowers of trade secrets and secrets related to intellectual property rights are usually the actual employer and the dispatched employee. Whether the non-compete agreement between the two parties is in line with the original legislative intent of the non-compete system involves a number of factors.
First of all, whether a dispatched worker can enter into a confidentiality and non-compete agreement with the employer is mainly based on the relevant provisions of the Labor Contract Law of the People's Republic of China. According to the provisions of the Labor Contract Law, the non-compete restriction is limited to the senior management personnel, senior technical personnel and other personnel who are obliged to maintain confidentiality. However, the positions that are usually applicable to labor dispatch work are temporary and supplementary general positions, and the above-mentioned personnel are generally not dispatched to work in the employer. Therefore, under normal circumstances, labor dispatch personnel cannot enter into a non-compete restriction.
However, if there is indeed a need for confidentiality of the work, the parties can also agree on a non-compete restriction. For example, the owners and knowers of trade secrets and IP-related secrets are usually the actual employers and dispatched employees, and the signing of a non-compete agreement between the two is in line with the original legislative intent of the non-compete system. In addition, the Employment Contract Law does not address the issue of non-compete in the case of dispatched employees, so it cannot be concluded that the law prohibits employers from entering into non-compete agreements with dispatched employees.
In short, on the issue of whether a non-compete agreement can be entered into with a dispatched employee, it is necessary to consider the specific nature of the work, the characteristics of the position, and the provisions of relevant laws and regulations. It is advisable to consult a professional lawyer for accurate legal advice if necessary.