The Principles And Effectiveness Of Concluding Labor Contracts

The third entry

Labor contracts shall have legal effect in accordance with law, and the employing units and workers shall fulfill their obligations stipulated in the labor contract.

This article deals with the principles for concluding labor contracts and labor contracts.

I. Principles for concluding labor contracts

1. the principle of legality.

Legality is a prerequisite for effective labor contracts.

The so-called legitimacy is the form and content of the labor contract must comply with the provisions of laws and regulations.

First of all, the form of a labor contract should be legal, for example, unless full time employment is required, labor contracts need to be written in writing. This is the requirement of this Law for the form of labor contracts.

If it is an oral contract, when the dispute arises between the two parties, the law does not recognize its effect, and the employer shall bear the legal consequences of not writing a contract. If the eighty-first article of this Law stipulates that "the employer has worked for more than one month from the date of his own employment but fails to conclude a written labor contract with the worker in less than one year, he shall pay two times the labor remuneration of the laborer."

Secondly, the content of the labor contract should be legal.

The seventeenth section of this Law stipulates nine contents of the labor contract.

Some contents, relevant laws and regulations stipulate that employers and workers must make specific provisions within the limits prescribed by law, for example, when the term of a labor contract should be fixed, under what circumstances should a fixed period be made, and no fixed time limit should be established under any circumstances. It should be consistent with the provisions of this law; for working hours, it is forbidden to violate state regulations on working hours; labor remuneration shall not be lower than the local minimum wage standard; and labor protection shall not be lower than the labor protection standard stipulated by the state.

If the content of the labor contract is illegal, the labor contract is not only protected by law, but also the legal liability of the parties concerned.

2. the principle of fairness.

The principle of fairness means that the contents of labor contracts should be fair and reasonable.

It is in accordance with the provisions of the law that the parties to a labor contract establish their rights and obligations equally and reasonably.

Some contract contents, relevant labor laws and regulations often stipulate a minimum standard. On this basis, it is lawful for the two sides to reach an agreement voluntarily, but sometimes the legality is not fair and reasonable.

Just like a post, two people who have the same qualifications and abilities are highly discriminate, or the ability to earn more is lower than their ability.

Another example is to provide laborers with a small amount of training fees to train their labourers, but require workers to enter into a longer period of service, and do not raise their wages or increase their wages in accordance with the normal wage adjustment mechanism during the service period.

These are not against the mandatory provisions of the law, but unreasonable and unfair.

In addition, we should pay attention to the fact that employers can not abuse their dominant position and force workers to conclude unfair contracts.

The principle of fairness is the embodiment of social ethics. Taking the principle of fairness as the principle of concluding labor contracts, it is possible to prevent the parties in the labor contract, especially the employing units, from abusing their dominant position and injures the rights of the workers, which is conducive to balancing the interests of the parties to the labor contract and conducive to the establishment of a harmonious and stable labor relationship.

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3. the principle of equality and voluntariness.

The principle of equality and voluntariness includes two meanings, one is the principle of equality, the other is the principle of voluntariness.

The principle of equality is that the laborers and employers have equal legal status in the conclusion of labor contracts. There is no difference between them. There is no relationship between orders and obedience, management and management.

Only with equal status can the two sides express their true meaning freely.

Of course, after signing a labor contract, the laborer becomes a member of the employing unit. The management of the recipient unit is in the status of the manager, and the status of the employing unit and the worker is not equal.

The equality mentioned here is legal equality and formal equality. Under the situation that the supply of labor force exceeds supply in China, the position of most labourers and employers can not actually be equal.

However, the employer shall not use the advantageous position and add unequal conditions when concluding the labor contract.

The principle of voluntariness refers to the fact that the conclusion of a labor contract is entirely due to the real will of the two sides of the labor force and the employing unit, and is reached by consensus between the two sides. Neither party can impose its will on the other party.

The principle of voluntariness includes the conclusion that no labor contract shall be signed by both sides, and the labor contract shall be voluntary by both parties, and the contents of the contract shall be voluntarily agreed between the two parties.

According to the principle of voluntariness, no unit or individual can force a laborer to conclude a labor contract.

4. the principle of consensus.

Consensus is to use units and workers to agree on the contents of the contract.

The contract is the result of the agreement between the two sides. The labor contract is also a contract, and it is also necessary for the workers and employers to reach a consensus by consensus. One side can not override the other party, nor impose their will on the other side, nor force the order to coercion the other party to conclude a labor contract.

When concluding labor contracts, employers and workers should carefully study every aspect of the contract, conduct full communication and consultation, resolve differences and reach agreement.

Only the labor contract embodying the real will of both parties can be faithfully performed in accordance with the contract.

In reality, the labor contract is often provided by the employer with the standard contract text, and the worker only needs to sign it.

The format contract text stipulates more rights to employers, clearer and less prescribed for the rights of workers.

Such a labor contract is hardly the result of consensus.

Therefore, when using the format contract, the laborer should seriously study the contract provisions and argue against himself.

5. the principle of good faith.

It is to be honest and trustworthy when signing labor contracts.

If a labor contract is concluded, neither party shall have any fraudulent conduct.

According to the eighth provision of this law, when employing units to recruit laborers, the employer shall faithfully inform workers of their work contents, working conditions, working places, occupational hazards, safety production status, labor remuneration, and other circumstances demanded by the laborers. The employer has the right to solve the basic situation that the workers are directly related to the labor contract, and the laborer shall explain them faithfully.

Neither side can hide the truth.

In reality, some employers do not tell workers the occupational hazards, or the working conditions provided are not the same as those stipulated in the contract, and so on. There are also workers who offer fake diplomas, which are against the principle of honesty and credit.

In addition, in reality, some laborers have entered into a labor contract with the employing units. When the laborers find other jobs, they regret their contracts and do not work in the employing units. This also violates the principle of good faith.

Honesty and credit is a basic principle of contract law. It is also a basic principle of labor contract law. It is also a social moral principle.

Two, the effectiveness of labor contracts

The effect of a labor contract is the binding force of a labor contract to the parties concerned.

According to the provisions of this article, labor contracts shall have legal effect in accordance with law, and employers and workers shall fulfill their obligations stipulated in the labor contract.

Labor contracts shall be protected by law in accordance with law.

No party may alter or terminate the labor contract without authorization or consent from the other party, otherwise it shall bear legal liability.

When the labor specific labor contract comes into force, the parties may agree in the labor contract. If there is no agreement, the parties shall enter into force from the date of signing by both parties.

When we understand this clause, we should notice that the effective time of labor contract and the establishment of labor relations are two different things.

Labor contract is a manifestation of labor relations. In some cases, labor relations have been established, but labor contracts have not been signed. In some cases, labor contracts have already come into effect, but there is no actual employment, and labor relations have not yet been established.

Therefore, breaking the labor contract can be divided into two situations, one is violation of the labor contract that has already been fulfilled.

At this time the labor relations have been established, in violation of the labor contract stipulations, it is necessary to undertake the illegal responsibility in accordance with the provisions of this law, such as the eighty-sixth provisions of this Law: "the employer shall disend or terminate the labor contract in violation of the provisions of this law, and shall pay compensation to the workers in accordance with the two times the economic compensation standard stipulated in the forty-seventh article of this law."

The other is violation of the labor contract that has already been effective but not yet fulfilled.

At this time, labor relations have not yet been established. The labor contract law does not stipulate the responsibility for violating the labor contract under such circumstances, which requires the two parties to stipulate when signing labor contracts.

At this point, the labor contract stipulate the responsibility for breach of contract. If the contract is agreed upon, the responsibility for breach of contract is not agreed.

Therefore, when concluding a labor contract, the two parties shall stipulate the fulfillment obligation in the contract.