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Wang Mei is a member of the Labor and Social Security Professional Committee of the National Lawyers Association and the Director of the Labor and Social Security Professional Committee of the Dalian Lawyers Association. He has participated in the Legislative Seminar on Labor Contract Law (Draft) in China and Dalian.
"The implementation date of this law is January 1, 2008. Laborers and employers must strengthen the study of the Labor Contract Law during the past six months." In conjunction with years of experience in providing legal services to enterprises, Wang Mei reminded me. The employer strengthens the study of the Labor Contract Law. The legal representative of the employer and the human resources staff must pay attention to the employment risks of the enterprise and avoid the huge illegal labor costs after the implementation of the law.
Wang Mei believes that the biggest impact of the implementation of the Labor Contract Law on laborers and employers is to increase the protection of laborers and increase the illegal costs of employers. Wang Mei also explained the specific embodiment of this influence in combination with the specific cases of recent years.
1. The new "Labor Contract Law" applies to institutions: Jiang is a statistician of a certain institution and employs staff. In 2004, when he worked in a certain institution for 12 years and 11 months, the unit managed personnel. The staff told him that he would not renew his employment next month, and he had to go through the formalities of leaving the post. Ginger asked for re-employment or the unit paid compensation. The unit did not agree, and Jiang refused to accept the labor arbitration appeal.
Article 2 of the Labor Contract Law stipulates that enterprises, individual economic organizations, private non-enterprise units and other organizations (hereinafter referred to as employers) within the territory of the People's Republic of China establish labor relations with laborers, and conclude, perform, change, terminate or terminate labor contracts. , this law applies.
The conclusion, performance, modification, dissolution or termination of labor contracts by state organs, institutions, social groups and laborers with whom they have established labor relations shall be implemented in accordance with this Law.
In practice, the personnel of the public institutions are those who are managed by civil servants or refer to civil servants, and those who implement the hiring system are constituted by ordinary laborers. The Labor Contract Law is not applicable to civil servants or those who are referred to civil servants. The general laborers apply the Labor Contract Law and the personnel who implement the employment system are partially applicable.
The "Supplementary Provisions" of the Labor Contract Law stipulates: "If a public institution enters into, performs, alters, terminates or terminates a labor contract with a staff member who implements the employment system, the laws, administrative regulations and the State Council have other provisions, in accordance with its provisions; , in accordance with the relevant provisions of this law."
2. The employer must fulfill the obligation of notification before signing the contract. In order to fully guarantee the workers' right to know, Article 8 of the Labor Contract Law stipulates that when the employer recruits laborers, it shall truthfully inform the laborer of the work content, working conditions, work place, Occupational hazards, safe production conditions, labor remuneration, and other circumstances that the laborer requires to know; the employer has the right to know the basic conditions directly related to the labor contract, and the laborer should truthfully explain it.
3. If the employer who does not sign the labor contract is required to establish a labor relationship as required by Article 10 of the Labor Contract Law, it shall conclude a written labor contract.
If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment.
If the employer and the laborer conclude a labor contract before employment, the labor relationship shall be established from the date of employment.
Illegal cost: If the employer fails to conclude a written labor contract with the employee for more than one month from the date of the employer's self-employed work, the labor contractor shall pay the employee twice the monthly salary.
Illegal cost: If the employer does not enter into a non-fixed-term labor contract with the laborer in violation of the provisions of this Law, it shall pay twice the monthly wage to the employee from the date of the conclusion of the labor contract without a fixed term.
4, the same labor can only be "trial" once: In May last year, the new graduate Xiao Wang went to Dalian Development Zone, a company to apply for, the company signed a one-year labor contract, the trial period is 6 months, The salary is 400 yuan, 10 days before the expiration of the probation period, the company said that it should also be investigated. If Xiao Wang agrees, the company will renew its three-month probationary period. Xiao Wang agrees to stay in the company in the future. After signing the trial period of 3 months, before the contract expires, the company notified Xiao Wang that he could not reach the employment conditions during the trial period and was no longer employed.
Article 21 of the Labor Law, which was enacted in 1995, stipulates: â€œA labor contract may stipulate a probationary period. The probationary period may not exceed 6 months.â€ According to the provisions of the Labor Law, employees are not eligible for employment during the probationary period. Conditions, the employer can terminate the labor contract at any time, and does not have to pay economic compensation. It is precisely because of the omission of the current law that the rights and interests of workers are violated and cannot be protected.
The Labor Contract Law mainly limits the probation period: the period of the probation period, the period of the labor contract less than three months, the probation period shall not exceed one month; if the labor contract period is less than one year for less than three years, the probation period shall not exceed Two months; for a fixed-term and three-year fixed-term labor contract, the trial period shall not exceed six months; for the trial period, the same employer and the same laborer may only agree on one trial period; the probationary period shall not be lower. The minimum wage in the same position of the unit or the 80% of the wages agreed in the labor contract shall not be lower than the minimum wage standard in the place where the employer is located; during the probation period, the employer shall not terminate the labor contract.
Illegal cost: Article 83 If the employer violates the provisions of this Law and the laborer agrees on the probation period, the labor administrative department shall order it to make corrections; if the trial period of the illegal agreement has been fulfilled, the employer shall use the full monthly salary of the laborer's probation period. The standard pays compensation to workers according to the period of time that has been fulfilled beyond the legal probationary period.
5. Encourage labor contracts without fixed period. For example, Lao Li has been working continuously for 15 years in a company. One month before the expiration of the contract in the ninth year, the company told him not to renew the labor contract and terminate the labor contract. Lao Li can't defend his rights, he can only take the bag and leave.
According to Article 20 of the Labor Law, the two parties must have three conditions for signing a non-fixed-term labor contract: the laborer has worked continuously for more than 10 years in the company; both parties agree to renew the labor contract; the laborer proposes to sign no fixed Term contract.
According to the current labor law, as long as the employer does not agree to sign a non-fixed-term labor contract, Lao Li cannot sign a labor contract with the employer without a fixed term, the contract is terminated, and the employer may not pay the economic compensation. According to the "Labor Contract Law", Lao Li proposed to sign a non-fixed-term labor contract with the employer, and the employer must sign. The Labor Contract Law clearly stipulates that unless the laborer proposes to conclude a fixed-term labor contract, if the employee has worked continuously for ten years in the employer; the employer first implements the labor contract system; the state-owned enterprise reforms and re-enters the labor contract; After the employer has worked continuously for ten years and is less than ten years from the statutory retirement age; it has successively entered into a second fixed-term labor contract, and the laborer does not have Article 39 and Article 40, Item 1, and Article 2 of this Law. In the case of the item, if the labor contract is renewed, the employer shall conclude a labor contract with the laborer without a fixed term.
6. Formulating labor rules and regulations is no longer the employer's party has the final say that the Labor Contract Law stipulates that the employer is formulating, modifying or determining the relevant labor remuneration, working hours, rest and vacation, labor safety and health, insurance and welfare, employee training, and labor. Discipline and labor quota management, etc., which directly involve the rules and regulations or major events of the immediate interests of the workers, shall be discussed by the employee representative assembly or all employees, and the plans and opinions shall be submitted and negotiated with the trade union or employee representatives on an equal footing.
The draft of the original labor contract law stipulates: "If the rules and regulations of the employer directly relate to the immediate interests of the workers, they shall be discussed and approved by the trade unions, the workers' assembly or the workers' congress." The content of the foreign-funded enterprises is very strong, they think This runs counter to the modern enterprise system. As the owner of the company, the shareholders (boss) should have the absolute right to formulate and implement relevant rules and regulations. "If the company's supreme power has been turned to the hands of Others in accordance with the provisions of the Exposure Draft." The "Labor Contract Law" finally passed has been deleted from the "shall be discussed by ..." and replaced by "equal consultation."
In practice, the rules and regulations of the employer itself are the â€œoverlord systemâ€. Such unilateral regulations are difficult to guarantee the interests of employees. Therefore, when the Labor Contract Law stipulates rules and regulations or major matters directly related to the immediate interests of workers, Then the employer has the final say, which better safeguards the legitimate rights and interests of workers.
Illegal cost: Article 80 If the employer directly violates the laws and regulations of the immediate interests of the laborer, the labor administrative department shall order it to make corrections and give warnings; if it causes damage to the laborer, it shall be liable for compensation.
7. The administrative department does not act as compensation for the current situation of higher laborer rights protection costs. The law stipulates that: if the labor administrative department and other relevant competent departments and their staff fail to perform their statutory duties and cause damage to the workers, they shall bear Liability for compensation; if the employer defaults or fails to pay the labor remuneration in full, the laborer may apply to the local people's court for a payment order, and the people's court shall issue a payment order according to law.
8. Clarification of the four types of forced labor in employers Wang Mei concludes that the Labor Contract Law increases the illegal costs of employers and has the following five types:
(1) The case where the employer fails to deliver the labor contract text to the laborer is included in the scope of administrative punishment and is supplemented by the liability for compensation.
Article 81 If the labor contract provided by the employer does not specify the necessary clauses of the labor contract stipulated in this Law or the employer fails to deliver the labor contract text to the laborer, the labor administrative department shall order it to make corrections; Should be liable for compensation.
(2) If the employer violates the provisions of this Law to terminate or terminate the labor contract, it shall pay compensation to the employee in accordance with twice the economic compensation standard stipulated in Article 47 of this Law.
(3) It is stipulated in the Labor Contract Law of four types of cases, such as forced labor by employers. If the employer has the following four types of circumstances, it will be given administrative punishment according to law; if it constitutes a crime, it shall be investigated for criminal responsibility according to law; if it causes damage to the worker, it shall bear Liability. These include: forced labor by means of violence, threats or illegal restrictions on personal freedom; violation of regulations or forced risk-taking operations endangering the personal safety of workers; insults, corporal punishment, beatings, illegal searches or detention of workers; poor working conditions, environment Serious pollution causes serious damage to the physical and mental health of workers. The Shanxi Black Brick Kiln incident applies to this law.
(4) The employer will be punished for detaining the ID card of the employee's resident ID card.
If the employer violates the provisions of this Law and collects property from the laborer in the form of a guarantee or other name, the labor administrative department shall order it to return the laborer within a time limit, and impose a fine of 500 yuan or more per person below 2,000 yuan; causing damage to the laborer. Should be responsible for compensation. If the laborer terminates or terminates the labor contract according to law, and the employer detains the employee's file or other articles, it shall be punished according to the preceding regulations.
(5) If the employer has one of the following circumstances, the labor administrative department shall order the payment of labor remuneration, overtime pay or economic compensation within a time limit; if the labor remuneration is lower than the local minimum wage, the difference shall be paid; if it is not paid within the time limit, The employer is ordered to pay compensation to the workers according to the standard of 50% or more of the amount payable:
1. Failure to pay the labor remuneration of the laborer in full and in full according to the labor contract or the state regulations; 2. Paying the wages of the laborer below the local minimum wage; 3. Arranging overtime to not pay the overtime pay; 4. Dissolving or terminating In the labor contract, the laborer is not paid according to this regulation to pay economic compensation.
(Article source: Shenzhen Talent Network)
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