How To Calculate The Length Of Work In The Same Parent Company?

The termination of labor contracts must not be ignored.

Brief introduction of the case

Zheng and a measurement and control company signed a 3 year term labor contract in April 3, 2002 as a new software evaluation work.

The labor contract which expired in April 2, 2005 and renewed for a period of 5 years will expire on April 2, 2010.

Due to the serious and responsible work of Zheng, he has been awarded the title of advanced worker in many times. In May 2007, TT & amp; C decided to send it to the software development company subordinate to it as the project manager of the development department.

In March 2008, the software development company changed its R & D direction and agreed with Zheng to terminate the labor contract and pay the economic compensation.

When Zheng took over the handover work and received the payment of economic compensation, he found that the starting time of his working years was May 2007, and then challenged the software development company. He requested that the number of years of work should be counted from the beginning of April 2002.

The software development company disagreed with Zheng Mousui's request for arbitration.

Arbitration result

The measurement and control company, as the superior unit of the software development company, signed a labor contract with Zheng and had a labor relationship with Zheng. Zheng was assigned to work in the subordinate units. It was pferred to work in March 2008. The two sides agreed to cancel the labor contract. The economic compensation should be calculated according to the working life of the measuring and controlling company, that is, the starting time is April 2002.

Expert comment

Focus one: economic compensation, according to what years?

According to the forty-seventh provision of the labor contract law, the economic compensation shall be paid to the laborers according to the number of years worked by the laborers in their units and the wages paid for one month per year.

The term of work in this unit refers to the working hours of laborers in the same employer.

In this case, the software development company of the measurement and control company and its subordinate units advocate that it is not lawful to calculate the working life of the company in accordance with the working hours of Zheng in different companies.

First of all, the measurement and control company and Zheng MOU signed a 3 year term labor contract in April 2002, and renewed the 5 year term labor contract. As a labor contract, the employer of the Party A, the measurement and control company still has labor relations with Zheng before the termination of labor contract (April 2010); second, in May 2007, the measurement and control company sent Zheng to work in the software company, which is the inter unit work mobility; third, the measurement and control company and the software company are subordinate units.

Therefore, as a software company, there is no right to terminate the labor contract with Zheng.

But after consultation, Zheng agreed to terminate labor relations and receive financial compensation.

Therefore, it is lawful for the Arbitration Commission to determine the length of service of the software company as a merger of the same employer.

With the continuous growth of enterprises' own business, their business scope has been expanding, and their business models and management systems have been diversified.

Under such circumstances, how to correctly define the legal relationship between enterprises and employees and how to regulate employment management has always been a headache for enterprise human resource managers.

The author believes that the employer should first determine the labor relations or labor relations with the laborers, and conclude labor contracts or labor agreements within one month from the date of employment, establish legal relations according to law. Second, employing units to arrange the mobilization of workers' work, no matter the pfer between units, or the mobilization of posts within the unit, all the labor contract changes or post contract change procedures should be handled in time according to the change procedures prescribed by the law.

Focus two: the distinction and application of the working life and the continuous working life of the unit.

As mentioned above, "the working life of the unit" is generally used in the calculation of economic compensation in the provisions of the labor law.

According to the author's investigation and analysis of such labor disputes, it is reminded that employers should also pay attention to the following conditions:

(1) when workers enjoy the expectation of medical treatment in accordance with the law, they do not terminate the labor contract with the employer, and the medical period should be regarded as the working life of the unit.

(2) because of the reasons of non workers such as administrative orders and business pfer, the labourers are pferred to the new employing units and re signed labor contracts. The working life of the laborers in the original employing units is calculated as the working life of the new employing units.

(3) although the employee has suspended the labor contract with the employing unit during his enlistment, it should be regarded as the working life of his unit.

(4) the length of service, the length of military service and the time to be allocated before the enlistment of retired servicemen and demobilized cadres should be combined to calculate their working life.

(5) the number of years of work in the original unit should be counted as the working life of the unit because of the change of the work unit due to reasons such as merger, merger, joint venture, and changing nature of the enterprise.

"Continuous working years" in the labor law provisions, mainly for the following purposes:

(1) as a criterion for determining whether there is no fixed term.

According to the fortieth provision of the labor contract law, when a worker has worked continuously for ten years in the employer's unit, when the employer first implements the labor contract system or the state-owned enterprise restructure and restarts the labor contract, the worker who has worked continuously in the unit for ten years and is less than ten years from the statutory retirement age shall sign an unfixed term labor contract.

(2) as a time standard for determining annual leave.

According to the second provision of the annual regulations on paid annual leave for employees, workers who have worked continuously for 1 years can enjoy paid annual leave.

(3) as a condition not to terminate the labor contract.

According to the forty-second provision of the labor contract law, the employer can not terminate the labor contract in accordance with the provisions of fortieth and forty-first of this law after fifteen consecutive years of work in the unit and less than five years from the statutory retirement age.

Special note: when the terminating conditions of the labor contract appear, some employers deliberately work for a period of time and then sign a labor contract with the laborer to break the calculation of continuous working hours. This practice is a way of avoiding the employer's obligation. The termination conditions of the labor contract arise. Whether the employer and the worker are in the process of terminating the labor contract, as long as the laborer still maintains labor relations with the employer, the working hours before the re signing of the labor contract, including the interval between the two labor contracts, shall be regarded as the continuous working time of the same unit.