Which Workers Are Not Protected By The Labor Contract Law?

Since January 1, 2008,

Here, the Southern Weekend enumerates several types of occupations that are not protected by the labor contract law.

Some of them are not applicable to the law. Some of them are protected by law but are not protected in reality.

Experts pointed out: compared with the labor law adopted in 1994, the labor contract law has narrowed the scope of protection for labourers.

1. Illegal employment represented by "black brick kiln".

According to the data released by the joint working group according to the "black brick kiln" incident, 3168 unlicensed brick tile kilns were found in Shanxi Province, involving 81 thousand workers.

13 of them used illegal child labour and the youngest child was 13 years old.

The kiln workers got up at 5 and finished work at 12 midnight.

In order to prevent workers from escaping, the supervisor will lock the shed door at night.

After the "black brick kiln" incident, the Ministry of labor and social security and other nine ministries jointly organized a special action to "regulate illegal employment".

Within a month, there were 67 thousand unlicensed units in rural small brick kilns and small coal mines all over the country, involving 1 million 434 thousand illegal workers.

Illegal use of illegal child owners is illegal.

The scope of the labor contract law must be the legal employers and workers.

[legislative authority response] precisely because of the black brick kiln incident, the labor contract law has added one in its last deliberation, that is, the ninety-third provision: "it is legal liability to investigate the illegal and criminal acts of the employing units that do not have legal business qualifications; if the laborers have paid the labor, the unit or its contributors should pay the laborers remuneration, economic compensation and compensation for the workers in accordance with the relevant provisions of this law; and the workers shall be liable for damages if they cause damage to the workers."

2, 15 million nanny

Group condition. This is a group of 15 million people, about 1/10 of migrant workers.

The problems they encountered included: the right to leave was not implemented. A survey in Chongqing showed that 23% of housekeeping housekeepers had no rest days. Sexual harassment - "Beijing migrant workers' home" had once conducted a sample survey of 206 attendants, and at least 10% of them had been sexually harassed.

In addition, due to the lack of government compulsion, the promotion of commercial insurance in the home industry is not high enough.

As of October, only more than 10 thousand people in Beijing had bought "user insurance", and over 4 housekeeping attendants bought accidental injuries and medical insurance.

(unprotected) because the employer is not a "employer", and housekeeping staff can not be protected.

The labor contract law stipulates that the main body determining labor relations with laborers must be "employers", including enterprises, individual economic organizations, private non enterprise units, and so on, and individuals can not act as the role of the management.

[legislative authority responded] this is rather complicated and we have studied it for a long time.

The nanny is not included in the labor contract law, but it does not mean that they are not protected.

If the two people talk directly, the rights and interests of the nanny are protected and operated according to the civil law.

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3, 1 million 900 thousand insurance salesmen

[group] there are 1 million 900 thousand insurance salesmen in China, but they do not belong to the official employees of the insurance company. They have no right to enjoy the benefits and allowances of the company, nor do they have social insurance.

Because the personnel system of the whole life insurance industry is "agency system", not the employee system - most of the life insurance salesmen are not the staff of the company, they are only connected with the insurance company, and one is connected with the "intermediary" of the insured.

[unprotected reasons] strictly speaking, the relationship between salesmen and insurance companies is consistent with the definition of labor relations between workers and employers.

But in the insurance industry, industry rules are tougher than legal provisions.

A lawyer reluctantly said: "under the present circumstances, even if the insurance salesman is lawsuits for this, it is also very difficult to win."

This is the industry rules. "

The court had precedents that there was no labor contract between insurance salesmen and insurance companies, so there was no labor relationship.

But our legislature believes that as long as the insurance salesman gets a commission, he has formed a labor relationship with the insurance company.

At least when we were studying legislation, we brought them in.

4. CCTV is a typical extra employment.

[group situation] in the summer of 2007, a great retreat took place in CCTV.

It is accompanied by various kinds of vivid rumors. Some say that 1800 people have been retreated and some say 4000.

At the beginning of 1990s, CCTV had only 3 channels, and its business establishment was more than 2000. Now there are 18 channels, but there is no obvious growth in its establishment.

This prompted CCTV to make an attempt to compile outside employment. In 2003, CCTV resolved the identity of the extra staff through labor dispatch.

In addition to the staff in the Taiwan area, all the other people signed a contract with the central vision company and then dispatched to the television station to become a "company recruited" staff.

At present, at least five thousand people have signed the contract of "enterprise employment", which is more than two times that of "Taiwan employment".

This has made CCTV the largest institution of labor dispatch in China.

Apart from "Taiwan employment" and "enterprise recruitment", some columns have recruited some unsigned personnel, which is called "column Recruitment".

Their identities are equivalent to "temporary workers" and they are paid for services.

After the promulgation of the labor contract law, a large number of large enterprises and institutions may choose labor dispatching companies to solve the problem of employment.

This mode has risks for workers, such as if a unit does not want to use an employee, he does not need to dismiss him, but only needs to return it to the labor dispatch company.

The sending company can promise to find another new unit for him, but perhaps the difference between the two units is the difference between the state TV station and the county TV station.

"If he is a famous host, will he go?" an expert said.

As for the personnel engaged in "column Recruitment", they are not equal to the illegal employment of black brick kilns, and are not protected by the labor contract law.

[legislative authority responds] if labor dispatch violates the voluntary principle of the parties, this will be coercive.

If the dispute arises, the court does not support the employer.

The labor contract law stipulates that labor dispatching is temporary, auxiliary and alternative labor posts. But this is not the case now. We must stop this loophole. We are stepping up our efforts.

5, freelancers

The group of "northern drift" is a typical image of freelancers who are eager to enter the world in Beijing.

Most of them work in performing arts, design, writing, etc., providing short-term services to the theatre group or the media, or engaging in task calculation.

Once there are occupational risks, such as journalists being beaten or traffic accidents, employers often take responsibility for the reason that they are not our employees.

According to a survey conducted by the Ministry of labor and social security in 2006, the number of flexible employment in urban areas has reached 50 million.

Unprotected reasons: the labor contract law requires the enterprise to sign a written labor contract with its employees and has three constraints: first, the enterprise must sign a written labor contract with the employee within one month from the date of employment, and the form of the contract must be a book.

Two, if there is still no sign after one month, employees should be paid double wages.

Three, if there is still no written labor contract for more than one year, the law is directly regarded as a labor contract with no fixed term between the two sides, and enterprises should still pay double wages to their employees.

But experts believe that this is difficult to achieve in real operation.

Because freelancers are often less powerful than employers, and most of them can only feel bad about accidents.

[lawmakers responded] freelancers should not only assume their responsibilities as laborers, but also be responsible for their own employers, such as buying various kinds of insurance.

But if freelancers work with another person, then this is a typical contractual relationship, governed by contract law.

Therefore, it is not because the labor contract law does not protect, but because it does not form a labor contract relationship, it is entirely an economic relationship and a civil contract relationship.