Legal Matters That Enterprises Should Pay Attention To In Formulating Internal Rules And Regulations

In view of the subordinate relationship between the laborers and the employing units in the labor relations, the rules and regulations formulated by the employer according to law can play a similar legal effect in the labor dispute.

Especially in the dispute of company's dismissal of employees and punishment of employees, due to China's laws and regulations generally lack detailed provisions on such problems, the rules and regulations of employers have played a supplementary role in the law.

Therefore, the internal rules and regulations of the enterprise as a unit to strengthen labor management, protect workers' right to work according to law and fulfil their labor obligations are a necessary system for enterprises to organize labor. It is of great significance for improving the efficiency of labor production, protecting the legitimate rights and interests of employees and enterprises, and promoting harmonious and stable labor relations.

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The labor law of the people's Republic of China and the relevant provisions of the Ministry of labor have given the company's rules and regulations to regulate the legal effect of labor relations.

For example, the twenty-fifth provisions and second provisions of the labor law stipulate "serious violation of the labor discipline and rules and regulations of the employing units". The company can terminate the labor contract at any time. The eighty-seventh provisions of the Ministry of labour on the implementation of certain issues concerning the labor law of the People's Republic of China stipulate that the "serious damage" in the twenty-fifth item (three) of the labor law shall be stipulated by the company's internal rules.

The formulation of company rules and regulations should pay attention to the following aspects: clarify the purpose of setting rules and regulations; the rights and obligations obligations clauses should serve the purpose of the system; ensure that rights and obligations are consistent with responsibilities, obligations and responsibilities; pay attention to the openness and incentive functions of rules and regulations; focus on stimulating employees' enthusiasm and responsibility; concise, clear, easy to understand, and no ambiguity; clear terms, consistency, no contradiction, compliance with logical rules, general provisions for technical terminology that are difficult to fulfill, clear scope of rules and regulations, connection with other rules and regulations, and interpretation and enforcement departments of rules and regulations.

However, not all the rules and regulations made by the company can produce the above effect.

According to the nineteenth provision of the Supreme People's Court on the interpretation of several issues concerning the application of law in labor dispute cases: the employer's rules and regulations formulated by democratic procedures under the provisions of article fourth of the labor law do not violate national laws, administrative regulations and administrative policies, and have been publicized to the workers, which can serve as the basis for the people's courts to hear labour disputes.

This requires effective rules and regulations of the company must have three conditions:

First,

Democratic process formulation.

In accordance with the judicial interpretation of the Supreme People's court, "democratic procedures" should be adopted in the formulation of company rules and regulations.

But how to operate is regarded as a "democratic procedure". Our law does not specify that the eighteenth articles and third paragraphs of the "company law of the People's Republic of China" should be heard from the opinions of the trade union and the opinions and suggestions of staff members through the staff congress or in other forms when it comes to the major issues of the company's research and decision making, and the formulation of important rules and regulations.

In judicial practice, it is generally recognized that the "democratic procedure" includes the following situations: (1) to convene a staff meeting or a staff representative meeting; (2) to be drawn up by the trade union of the company; 3, if there is neither a staff meeting nor a staff congress nor a trade Union, the employees shall have the right to make suggestions and suggestions in the process of making rules through appropriate ways, and the staff's suggestions and opinions should be fully reflected in the formulation process of rules and regulations.

What needs to be brought to the attention of the company is that in the process of formulating rules and regulations in the above way, the company should keep the evidence of the staff (representatives) assembly, trade unions or employees involved in the formulation of rules and regulations.

Two, the contents should be clear and specific, and do not violate national laws, regulations and policies.

Rules and regulations are designed to maintain the normal operation order of the company and regulate the behavior of employees. Therefore, in addition to the normative provisions, there must be corresponding penalties.

Otherwise, the company rules and regulations will exist in name only, and will not achieve the actual effect.

The penalties for employees can be stipulated in the company's rules: written warning, record, deduction of wages or bonuses, demotion or demotion, salary reduction, downtime, dismissal, etc.

Because punishment often touches the employee's personal interests, if it is not handled well, it will easily lead to labor disputes.

Therefore, it is suggested that the punishment for employees who violate discipline should be established on the basis of legality and rationality.

As we all know, economic punishment means a great impact on employees' psychology, and it is easy to generate labor disputes.

Therefore, our lawyers believe that the scope of economic punishment should be reduced as far as possible or without economic penalties. In the process of operation, other punishment can be replaced by other means of management. For example, enterprises can impose economic penalties on their employees through another way, especially the way of assessment. Because of the fierce competition in the labour market, even if workers do not get financial penalties immediately, these violations of rules or regulations or labor discipline can be regarded as the basis for their promotion or renewal of labor contracts from the perspective of assessment, which is more deterrent than the results of economic punishment.

In addition, some enterprises take disciplinary actions such as verbal reminders, written reminders, final warnings, and termination of labor contracts to employees who violate discipline and regulations.

In doing so, it helps to optimize the internal microclimate of the enterprise, ease the relationship between the upper and lower levels, stimulate the enthusiasm of the staff, form a set of people-oriented, pay attention to the dignity of people, and derive the procedures for handling the interpersonal relationship between enterprises.

There are two advantages of this operation: first, we can carefully prevent the rupture of labor relations from occurring through the use of relatively relaxed penalties other than economic punishment.

Two, through the assessment system, workers can be directly linked to their income due to their violation of discipline and irregularities, so as to achieve a better positive result than punishment.

Generally speaking, the salary structure of employees includes two parts: fixed wages and unfixed bonuses. Enterprises can put the requirements of employees' behavior into the evaluation system of bonus payment, thus playing a role in restraining the violation of discipline.

The method of floating bonuses is used to regulate the behavior of employees, and it is also easier for employees to accept.

Because the wage portion of the company has not been reduced, and the bonus is more or less, after all, it is "taking" rather than "bucking". In order to get more bonuses, employees will try to make their behavior standards conform to the requirements of the enterprise.

From the point of view of the enterprise, the cost has not increased at all, and there has been no loss.

This way of operation can also achieve the constraint on employees, but it can reduce a lot of trouble.

However, if the company's rules and regulations violate the mandatory provisions of laws and regulations, this part is invalid.

In litigation practice, enterprises' rules and regulations are often found to be invalid because of violation of the mandatory provisions of the law. For example, the basic management system set up by the board of directors may be invalid because of the approval of the board.

The most controversial thing in practice is whether the labor contract is legally provided.

Article twenty-fifth (two) of the labor law clearly stipulates that the employer may at any time rescind the labor contract if the worker seriously violates the labor discipline or the rules and regulations of the employing unit.

Clause (three) of this article stipulates that if a worker is seriously dereliction of duty and causes serious damage to the interests of the employer, the employer may terminate the labor contract at any time.

According to the relevant provisions of the Ministry of labor, under these two circumstances, the company dissolves the labor contract (relationship) without paying the economic compensation to the laborers. At the same time, the labor laws and regulations do not clearly stipulate whether it is a serious violation of the labor discipline or the employer's rules or regulations, or whether it is a "major interest damage", and it should be stipulated by the company's rules and regulations.

It is suggested that the rules and regulations of a company should be specified in specific circumstances according to the specific circumstances of the workers' actions.

(1) a single serious violation can be dismissed.

Such as: "employees do not obey the management, beat or abuse the management personnel, that is, to dismiss, the company does not pay any economic compensation".

(2) cumulative repetition increases.

If it is stipulated that "employees shall not be subject to reasonable work assignments, they shall be given serious warning. If they are committed again, they will be dismissed and the company will not pay any economic compensation".

(3) cumulative penalties for a period of time.

If it is stipulated, "employees shall be dismissed within 3 months of a written warning, and the company will not pay any financial compensation".

Three, publicity to workers.

The most important problems in the publicity of company rules and regulations are: retaining the evidence that has been publicized.

It can usually be done in the following ways:

(1) read the rules to each employee and sign them after reading.

The signature confirmation of reading rules and regulations can be registered by making forms, or a single page statement can be signed by employees, including staff confirmation that "have fully understood and committed to comply with company rules and regulations".

(2) announce the contents of rules and regulations in the workplace, and record the record of the scene of the announcement for photographing, video recording, etc., and may be witnessed by the property management personnel in the workplace.

(3) convene the workers' Congress to publicized and retain evidence in an appropriate manner.

(4) entrust a trade union to publicized and retain evidence.