Interpretation Of The New Labor Law From The Perspective Of Employers

This article is from the perspective of employers.

Interpretation 1: rules and regulations making procedures are more stringent.

Related provisions:

"Fourth employing units shall establish and improve labor regulations according to law.

The employing units are formulating, modifying or deciding the relevant labor remuneration, working hours, rest and vacations, labor safety and health.

In the process of deciding on the implementation of rules and regulations and major matters, the trade union or the staff and workers consider it inappropriate, they shall have the right to propose to the employer and make amendments and improvements through consultation.

The employing units shall publicized the rules and regulations and major matters directly related to the vital interests of the workers, or notify the laborers.

Interpretation:

This section mainly stipulates the procedures for employing units to make rules and regulations.

Compared with the existing provisions, this provision mainly adjusts and modifies the democratic procedures formulated by rules and regulations.

According to the existing law, the rules and regulations formulated by the employer through democratic procedures, which do not violate the provisions of national laws, administrative regulations and policies, and have been publicized to the workers, can serve as the basis for the people's courts to try labor disputes cases.

To sum up, the main elements of the legal effect of the employer's rules and regulations generally include three aspects, that is, the contents of the system are legitimate and reasonable, democratic procedures and publicity procedures.

What is democratic procedure? According to the eighteenth provision of the current company law of the People's Republic of China, the so-called democratic procedure means that when formulating important rules and regulations, the company should listen to the views of the trade union of the company and listen to the opinions and suggestions of the staff through the staff congress or other forms.

It can be seen that the democratic procedure in the current provisions is mainly "listening to opinions".

The main change of the new regulation is that the "listening advice" has been changed to "discussion".

"Equal consultation" has significantly increased the rights of trade unions, workers' congresses and employees in the formulation of rules and regulations of employers, and strengthened the legal procedures for employing units to formulate rules and regulations.

For those employing units that have not yet established trade unions or workers' congresses, if the number of employees is larger or the workplace of employees is more dispersed, the efficiency of the democratic process of making rules and regulations according to the new law will be rather low.

Therefore, another "unexpected result" introduced by the clause may promote the construction of trade unions and staff associations in the employing units.

Interpretation two: employers will face strong penalties for not signing labor contracts.

Related provisions:

"Tenth, in establishing labor relations, a written labor contract shall be concluded.

Where a labor relationship has been established and a written labor contract has not been written at the same time, a written labor contract shall be concluded within one month from the date of the employment.

Where a labor contract is concluded between the employing unit and the laborer before the employment, the labor relationship shall be established from the date of the employment.

The fourteenth unfixed term labor contract refers to the labor contract stipulated by the employer and the worker without definite termination time.

Employers and workers can conclude an unfixed term labor contract through consultation.

In case of any of the following circumstances, if a worker proposes or agrees to renew or conclude a labor contract, he shall conclude an unfixed term labor contract unless the worker proposes a fixed term labor contract.

...

If the employer fails to conclude a written labor contract with a worker for one year from the date of his employment, he shall be deemed to have entered into an unfixed term labor contract between the employer and the employee.

The eighty-second employer shall not pay a written labor contract with a worker for more than one month after the date of his own employment, and shall pay two times the monthly salary to the laborer.

If the employer fails to conclude a labor contract without a fixed term in violation of the provisions of this law, he shall pay the laborer two times the monthly salary from the date of the conclusion of the contract.

Interpretation:

When a labor relationship is formed, a written labor contract shall be signed, and a labor contract without a written labor contract is legally called "factual labor relationship".

This article mainly stipulates strictly the time of signing labor contracts and the legal liability of factual labor relations.

There are two reasons why employers are unwilling to sign labor contracts with laborers. First, they are driven by the reduction of labor costs. Without signing labor contracts, they may evade the obligation to pay social insurance for employees, reduce the cost of payment of financial compensation when they dismiss workers, and two, in the existing legal provisions, the legal liability of employers not signing labor contracts is only a lighter legal liability for employees who can resign at any time, units must terminate their bilateral relations and pay a small fine.

In the new regulation, the time for signing the labor contract is clearly defined.

It should be said that the time limit for signing a written labor contract within one month from the date of self employment is still relatively broad. However, a written contract has not yet been written beyond this time, and the employer must pay two times the monthly salary to the employee.

The above penalty rules are very strict.

It is foreseeable that after the implementation of the new law, employers will not dare to play with fire and sign labor contracts with their employees.

For employers, the key points to be considered in the future should be how to take various measures to strengthen management, establish strict labor contracts within the unit, sign discipline, prohibit or prevent employees from signing labor contracts with the units, and avoid forming a factual relationship with employees.

With the implementation of the new labor contract law, the traditional viewpoint that "labor contract is a document protecting the legitimate rights and interests of employees" will change. The labor contract will gradually become a "document protecting the legitimate rights and interests of employers and employees". Employers must pay more attention to the importance of labor contracts in human resource management.

Interpretation three: guiding the establishment of long-term or non fixed term labor contracts

Related provisions:

"Fourteenth non fixed term labor contracts" refers to the labor contract stipulated by the employer and the worker without definite termination time.

Employers and workers can conclude an unfixed term labor contract through consultation.

In case of any of the following circumstances, if a worker proposes or agrees to renew or conclude a labor contract, he shall conclude an unfixed term labor contract unless the worker proposes a fixed term labor contract.

(1) the worker has worked continuously for ten years in the employing unit.

(two) when the employer first implements the labor contract system or the state-owned enterprise reestablishes the labor contract, the worker will continue to work for ten years in the employing unit and less than ten years from the statutory retirement age.

(three) two consecutive fixed-term labor contracts shall be concluded continuously, and the laborers shall renew their labor contracts without the provisions of the first and second provisions of the thirty-ninth and fortieth articles of this law.

If the employer fails to conclude a written labor contract with a worker for one year from the date of his employment, he shall be deemed to have entered into an unfixed term labor contract between the employer and the employee.

The eighty-second item...

If the employer fails to conclude a labor contract without a fixed term in violation of the provisions of this law, he shall pay the laborer two times the monthly salary from the date of the conclusion of the contract.

Interpretation:

The main provision of this article is that the employer should sign an unfixed term labor contract with the employee.

The current state regulations on non fixed term labor contracts are mainly embodied in the twentieth article of the labor law: "...

If a worker has been working for the same employer for more than ten years, if the parties agree to renew the labor contract, if the worker proposes to conclude a labor contract with no fixed term, it shall conclude a labor contract with no fixed term. "

The new regulations extend the scope of the non fixed term labor contract on the basis of the above provisions.

For example, the "renewal of the consent" of the existing labor law has been abolished. Instead, the employee can make an unfixed term labor contract as long as ten years of continuous employment in the same employer, and add two new contracts to be signed without fixed term. At the same time, it clearly stipulates that the employer has violated the above provisions and does not sign the legal liability of the non fixed term labor contract.

Long term or no fixed term labor contract is considered to be an important foundation for building harmonious labor relations.

Therefore, legislators try to build up the domestic employment system of long term or non fixed term labor contracts through these Provisions, and guide employers and employees to sign long-term labor contracts or non fixed term labor contracts, so as to promote long-term or non fixed term labor contracts to take root in China.

The author believes that although there are still many employers have fear of unfixed term labor contracts and the provision, in fact, no fixed term labor contract is not an unrelievable labor contract.

From the lifting of the statutory conditions, the employer to terminate the non fixed term labor contract and the lifting of a fixed term labor contract is actually the same.

No matter which term of labor contract is released, it is required that our employers should establish and perfect a set of standardized and complete rules and regulations, and establish a reasonable and scientific job evaluation system.

From the perspective of the long-term development of employers, the use of unfixed term labor contracts, if properly applied, can also bring the effectiveness of attracting talents, retaining talents, motivating employees and enhancing team cohesion. In general, the author believes that the benefits of non fixed term labor contracts to employers are greater than risks.

At the same time, remind employers to note that legislators in the article also remain for the employer not to sign no fixed term labor contract space.

Interpretation four: competition restriction and confidentiality clause "autonomy of will"

Related provisions:

"Twenty-third employers and workers may stipulate in their labor contracts the business secrets of the employing units and the confidentiality matters related to intellectual property rights.

For a laborer who has a duty of confidentiality, the employer may stipulate a competition restriction clause with the laborer in the labor contract or confidentiality agreement, and stipulates that the worker's economic compensation shall be given to the laborer on a monthly basis within the time limit of the competition according to the termination or termination of the labor contract.

If a laborer violates the stipulations of the competition restriction, he shall pay liquidated damages to the employer in accordance with the contract.

The twenty-fourth persons with limited competition shall be limited to the senior managerial personnel, senior technical personnel of the employing units and other personnel who have the obligation of confidentiality.

The scope, region and time limit of the competition shall be stipulated by the employing unit and the laborer, and the agreement on the restriction of competition shall not violate the provisions of laws and regulations.

After the termination or termination of a labor contract, the time limit for the entry of any other person in the preceding paragraph to any other employing unit that has a competitive relationship with the unit's production or operation of similar products or similar businesses, or the time limit for engaging in production or running similar products or engaging in similar businesses in its own business shall not exceed two years.

Interpretation:

This article is about the stipulation of confidentiality clauses and competition restriction clauses in labor contracts.

Confidentiality provisions and articles of competition are important means for employers to protect business secrets.

Compared with the current provisions, the main changes of the article are: 1. The longest period of the competition restriction has changed from three years to two years; 2, it has been clear that the time for the payment of the economic compensation should be released after the termination or termination of the labor contract, and the monthly payment must be made within the time limit for the competition. 3, the standard of the economic compensation and the penalty for the limitation of business shall be implemented according to the agreement between the two parties.

The specific and specific provisions of this article on competition restrictions are more clear and reasonable, which will play a dual role in restricting and protecting both employers and employees.

Interpretation five: strictly define investment training and limit the scope of application of liquidated damages.

Related provisions:

"Twenty-second employers provide special training fees for workers, and if they engage in professional and technical training, they may conclude an agreement with the worker and agree on the service period.

If a worker violates the stipulations of the service period, he shall pay liquidated damages to the employer in accordance with the contract.

The amount of penalty shall not exceed the training fee provided by the employer.

The liquidated damages paid to the laborers by the employer shall not exceed the training expenses that should be apportioned in the part of the service period that has not yet been fulfilled.

If the employer and worker agree on the service period, they will not affect the labor remuneration during the service period according to the normal wage adjustment mechanism.

Twenty-fifth in addition to the twenty-second and twenty-third provisions of this law, the employer shall not agree with the laborer that the worker shall bear the penalty for breach of contract.

Interpretation:

This article strictly restricts the condition that the employer and employee agree to pay the breach of contract damages by the employee, and makes a specific definition for the "training" that can specify the liquidated damages.

What is meant by "investment training" has always been controversial in academic circles. This legislation has been one of the biggest controversial issues from the first instance, second instance, three instance to the four instance.

Today's finalization is more reasonable.

However, the author thinks that the conditions for liquidated damages should be reduced or appropriately relaxed.

The establishment and payment of liquidated damages in labor contracts is one of the most common, sensitive and complex problems in labor disputes.

The existing labor law does not contain provisions on liquidated damages, and local labor contract laws and regulations in various provinces and cities have made various provisions for liquidated damages, which are advocated and restricted.

Therefore, the article has made a significant contribution to the unification of the labor contract liquidated damages system across the country.

Unfortunately, the article strictly limits the scope of application of liquidated damages, stipulates that the penalty for breach of contract is only limited to two cases of competition restriction and investment training, which means that under normal circumstances, the employer can not stipulate the liquidated damages borne by laborers.

In the current employment environment is not loose and workers are in an absolutely weak position, the specific provisions of the relevant provisions of the fine penalty will play an important role in protecting the legitimate rights and interests of workers.

But for the employer, how to protect the legitimate rights and interests of the unit legally and effectively will be a new research topic for the employer.

Interpretation six: employers will unilaterally rescind labor contracts with more legal conditions.

Related provisions:

"If thirty-ninth workers have one of the following circumstances, the employer may rescind the labor contract:

(1) during the probation period, it is proved that it does not meet the employment requirements;

(two) a serious violation of the rules and regulations of the employing units;

(three) serious dereliction of duty, malpractice, causing serious damage to the employer;

(four) laborers should establish labor relations with other employers at the same time, which will have a serious impact on the completion of their work tasks or refuse to correct them by the employing units.

(five) the employment contract is invalid because of the first provision of the twenty-sixth paragraph of Article 1 of this law.

(six) be investigated for criminal responsibility according to law.

Twenty-sixth the following labor contracts are invalid or partially invalid:

(1) by making use of fraud or coercion or taking advantage of danger, the other party may conclude or change the labor contract in violation of the true meaning;

Interpretation:

This article is about the statutory conditions for the employer to terminate the labor contract.

Compared with the existing provisions, the item mainly increased item (four) and item (five).

Item (four), what is "labor relations with other employers" needs further explanation of future supporting provisions.

Item (five), what is meant by "cheating, coercion or taking advantage of danger, so that the other party is in violation of its true meaning" requires the employer to give evidence.

The above two situations are more favorable to employers, but employers must grasp the specific requirements of the new regulations and apply them flexibly.

For example, in the future, when employing units or employees change or conclude labor contracts, it is particularly important for employees to make written confirmation of recruitment requirements, recruitment intention and intention of contract change, etc., otherwise they will not be able to prove the true meaning of the unit.

Interpretation seven: expand the scope of economic layoffs

Related provisions:

"Forty-first of the following circumstances, it is necessary to reduce the number of personnel or more than twenty or less than twenty people, but the total number of workers and staff members is ten percent or more. The employer can explain the situation to the trade union or the whole staff thirty days in advance, and after listening to the opinions of the trade union or the staff, the personnel reduction plan can be reduced to the staff through the report to the labor administrative department.

(1) reorganization in accordance with the provisions of the enterprise bankruptcy law;

(two) serious difficulties in production and operation;

(three) the pfer of enterprises, major technological innovation or adjustment of the way of operation, and after the change of the labor contract, staff still need to be laid off.

(four) any other objective economic situation based on the conclusion of the labor contract has undergone major changes, resulting in the failure of the labor contract to be fulfilled.

When reducing personnel, priority should be given to the following personnel:

(1) a fixed term labor contract concluded with the unit for a longer period.

(two) enter into an unfixed term labor contract with the unit;

(three) there are no other employment personnel in the family, there are elderly people or juveniles who need support.

In accordance with the provisions of the first paragraph of this article, the employing unit shall re employ personnel within six months, and shall notify the people who have been laid off, and give priority to those who are under reduction under the same conditions.

Interpretation:

This provision provides for economic redundancies.

According to the provisions of the current labor law, the economic layoffs are limited to two situations: the employer is on the verge of bankruptcy or the production and operation situation is seriously difficult.

In the course of the production and operation of the employer, various difficulties will be encountered. Therefore, this section adds several new cases of economic layoffs to meet the actual needs.

At the same time, this article also makes mandatory provisions on the question of who should be given priority in economic layoffs.

The author believes that the purpose of the implementation of economic layoffs is to reduce staff and increase efficiency. Therefore, the employees with strong ability and good performance must be retained.

But the ability and performance are not based on the contract duration of employees.

It is compulsory to stipulate that employees who have made a long term or no fixed term labor contract should be given priority in economic layoffs, which may reduce staff members and increase efficiency, and fail to bring the enterprises back to life.

Therefore, in order to lay off staff economically, employers should decide who should be retained first.

As for those who are in a long contract or belong to a non fixed contract period, they should protect their rights by improving the state's social security system.

Interpretation eight: labor contract termination or termination of economic compensation overall cost increase

Related provisions:

"Forty-sixth of the following circumstances, the employing unit shall pay economic compensation to the laborers:

(1) a laborer shall terminate his labor contract in accordance with the thirty-eighth provision of this law.

(two) the employing unit shall, in accordance with the provisions of the thirty-sixth provision of this law, propose to the laborer to terminate the labor contract and terminate the labor contract with the laborers through consultation.

(three) the employer shall terminate the labor contract in accordance with the fortieth provision of this law.

(four) the employer shall terminate the labor contract in accordance with the first paragraph of article forty-first of this law.

(five) the employer shall terminate the fixed-term labor contract in accordance with the first provision of article forty-fourth of this law unless the employer maintains or improves the conditions stipulated in the labor contract, renews the labor contract, and the worker does not agree to renew the contract.

(six) termination of labor contracts in accordance with the fourth and fifth provisions of the forty-fourth articles of this law;

(seven) other circumstances stipulated by laws and administrative regulations.

The forty-seventh 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 full year.

For more than six months with less than one year, the financial compensation for half a month's wages will be paid to the laborers for a period of one year or less than six months.

The monthly salary of laborers is higher than that of the Municipal People's Government of the municipality directly under the central government or the municipal district where the unit is located, and the monthly average wage of the workers in the region is three times higher than that of the local people's government. The standard of paying the economic compensation to the workers is three times the average monthly wage of the workers, and the maximum annual limit for paying the economic compensation to them is not more than twelve years.

The monthly wage mentioned in this article refers to the average wage of a worker within twelve months before the termination or termination of the labor contract.

Interpretation:

This article mainly stipulates the issue of the economic compensation for the service age of the labor contract's termination or termination. On the whole, it basically increases the economic compensation cost for the employer to terminate or terminate the labor contract with the employee.

According to the existing labor law, compensation is only paid when the labor contract is terminating.

And when the labor contract expires naturally, it does not need to pay compensation.

At present, the reason for the short term labor contract is mainly that the employer should reduce the cost of termination as much as possible, shorten the term of the contract, make it expire naturally, and avoid paying the laborers' economic compensation when the labor contract is terminated.

Accordingly, forty-sixth items (five) have been stipulated accordingly.

At the same time, personally, it is considered that, from a rational point of view, when the contract is terminated or other circumstances terminate the labor contract, the employer should pay an economic compensation to the employee according to his working age, which can also be regarded as a commendation and encouragement for the service life of the employee to the employer.

In addition, in the calculation standard of economic compensation, the forty-seventh distinction between high-end workers and ordinary workers.

There are two high limits for high income earners, one is the limit of monthly average wage and the other is the total amount of economic compensation.

Separating the high-end workers from the general workers and making two kinds of economic compensation reflects the inclined protection of the labor contract law for the general workers, avoiding the excessive disparity in the standard of the economic compensation, and at the same time, appropriately balancing the compensation for the termination or dissolution of the labor contract by the employer.

Interpretation nine: norms and restrictions on labor dispatch

Related provisions:

"The fifty-eighth labor dispatch units are the employing units referred to in this law, and the employer's obligations to the laborers shall be fulfilled.

The labor contract concluded between the labor dispatch unit and the dispatched worker shall not only specify the matters specified in the seventeenth provision of this law, but also specify the employing units, the time limit for dispatch and the work posts of the dispatched workers.

The labor dispatching unit shall make a fixed term labor contract with the dispatched worker for more than two years, pay labor remuneration on a monthly basis, and the dispatched worker shall pay monthly remuneration according to the minimum wage stipulated by the local people's Government during the period of no work.

The sixty-third workers are entitled to equal pay for equal work with the workers in the employing unit.

If the employing unit does not have a similar post, it shall be determined according to the remuneration of the laborers in the same or similar posts.

The sixty-fourth dispatched workers have the right to participate in or organize trade unions in accordance with the law, or safeguard their own legitimate rights and interests.

The sixty-fifth dispatched workers may terminate the labor contract with the labor dispatching unit in accordance with the provisions of the thirty-sixth and thirty-eighth articles of this law.

If the dispatched worker has thirty-ninth or fortieth provisions of the first and second regulations, the employing unit may return the laborer to the labor dispatch unit, and the labor dispatching unit may terminate the labor contract with the laborer in accordance with the relevant provisions of this law.

The sixty-sixth labor dispatch is usually implemented in temporary, auxiliary or alternative jobs.

The sixty-seventh employer shall not set up a dispatch unit to send workers to the unit or its subordinate units. "

Interpretation:

Labor dispatching as a new type of employment has been controversial in the domestic market.

At present, there are few legal provisions for standardizing labor dispatch. Basically, it is the blank point in legislation. Therefore, in the fifth chapter, second sections and eleven articles are used to standardize labor dispatch.

The terms of labor dispatch have always been one of the most controversial issues in the legislation of labor contract law.

The new changes in the new regulations of the labor dispatch mainly affect the following aspects: 1, the labor dispatch units should have fixed term labor contracts with the dispatched workers for more than two years; 2, the dispatched workers have the right to equal pay for the same work with the employing units; 3, the labor dispatch is usually implemented in temporary, auxiliary or alternative jobs.

Judging from the trend of these new regulations, the expected benefits of employing labor dispatch by employers will be greatly reduced compared with the previous ones, and the market size of labor dispatch will also be reduced.

Interpretation ten: vigorously implement the collective contract system

Related provisions:

"Fifty-first party members of an enterprise can conclude collective contracts on matters such as labor remuneration, working hours, rest and vacations, labor safety and health, insurance benefits, etc. through equal consultation with employers.

The draft collective contract shall be submitted to the staff congress or all staff members for discussion and approval.

A collective contract is made by the trade union on behalf of the enterprise employee and the employer; the employing unit that has not yet established a trade union shall be instructed by the higher level trade union to conclude the representative elected by the worker and the employing unit.

Article fifty-third within the county level, the construction industry, mining industry, catering service industry and other industries can be concluded by trade unions and representatives of enterprises on industrial collective contracts, or regional collective contracts.

Fifty-sixth, if the employer violates the collective contract and infringes upon the labor rights and interests of the workers, the trade union may request the employer to assume the responsibility according to law. If the dispute is solved if the collective contract is executed, if the dispute can not be resolved through consultation, the trade union may apply for arbitration and initiate litigation in accordance with the law. "

Interpretation:

The first section of the fifth chapter of the new law is about the provisions of the collective contract system.

At present, the main problems existing in our collective contract legislation lie in: first, the legal provisions are too scattered and lack of operability; two, the main basis is the collective contract stipulation formulated by the Ministry of labor and social security, the legislative level of the regulations is low, and the authority of the law is low; three, there is no provision for the enterprises to carry out collective consultation without signing collective contracts.

The contradiction in the field of labor relations in China lies in the fact that the strength and status of labourers and employers are very different.

Therefore, we need to establish a multi-level legal adjustment mechanism.

In this multi-level legal adjustment mechanism, because the law can only stipulate the minimum standard, the ordinary labor contract more embodies the unilateral will of the employing unit, and the collective contract system undoubtedly becomes a crucial legal system for coordinating labor relations.