The Enterprise Has Set Up A Unilateral Mediation Right To Arbitrate, And The Action Is Invalid.

In recent years, the flexibility of personnel allocation has been increasing.

As a means of human resource management, "adjusting posts" plays an important role in team building and optimization. On the other hand, for employees, "adjusting posts" is also a way to recognize the training of compound talents and post competency.

Under the regulation of labor law, how to make legal adjustment of posts so as to achieve seamless connection between this management method and the law? During this year's "labor school open class", Xie Yanping, a lawyer in Daocheng law firm, interpreted the typical cases of labor contract alteration and post adjustment.

In reality, enterprises often ignore this point and ignore the objection of employees to alter the content of the contract without authorization. Such a change does not happen.

And it will also be liable for damages to employees.

In March 2012, Xiao Zhang joined a company as a sales manager with a monthly salary of 8000 yuan.

The labor contract specifically states that "a company can reasonably adjust its position according to the business status and work needs of the company, and the employees must obey the salary."

In 2014, the company's performance declined, and decided to reduce management positions. In June 2014, the company issued a written notice of adjustment to Xiao Zhang, which indicated that "because of the changes in the management of the enterprise, the decision to change the position of Xiao Zhang to general sales staff was reduced to 5000 yuan."

Xiao Zhang was very dissatisfied with this. In June 2014, Xiao Zhang applied for arbitration and requested that the posts be revoked and continued to be performed according to the original labor contract.

The Arbitration Commission held that the company could not change the labor contract without the consent of Xiao Zhang. Therefore, the decision made by the company unilaterally was invalid, and the ruling supported Xiao Zhang's arbitration request.

According to the labor contract law, employers and workers can change the contents stipulated in the labor contract through consultation, and at the same time, the labor contract should be changed in written form.

In this case, the company changed the position of Xiao Zhang without obtaining the consent of Xiao Zhang, and did not reach an agreement. It had no binding effect on Xiao Zhang.

In arbitration, Xiao Zhang will submit the labor contract signed before entering the office as evidence.

Xiao Zhang's post is a sales manager. His monthly salary is 8000 yuan. After changing, he is a general salesperson with a monthly salary of 5000 yuan.

From the point of view of protecting employees, employees are not expected to have such a big change in their post and salary changes when they enter the job.

As a result, the early adjustment of posts must be clear, specific and reasonable, so that it can be legally and effectively.

In this case, enterprises refer to "reasonable adjustment of jobs" depending on the operation and working needs of the enterprises, but they are not explicitly stated, so they are not protected by law.

In practice, there are still a lot of enterprises in the context of violating the wishes of employees to implement the post adjustment. When employees go to new jobs for a period of time, they are required to return to their original posts.

In view of this situation, according to the interpretation of the supreme law on Several Issues concerning the application of the law in labor dispute cases (four), it is stipulated that the labor contract is not written in form, but has actually fulfilled the labor contract which has been changed orally for more than 1 months, and the content of the labor contract after the change does not violate the laws, administrative regulations, national policies and public order and good customs.

Therefore, although the change of the labor contract is not in written form, the unit may refuse the actual performance after a change for more than 1 months, that is, if the employee has the legal effect and the worker continues to ask for a return.

From this, enterprises in

We should pay attention to the following problems in changing the labor contract: (1) the labor contract must be carried out within the effective time before the contract has been fulfilled or has not yet been fulfilled.

(2) we must adhere to the principle of equality, voluntariness and consensus. That is, the change of the labor contract must be agreed by the parties of the employer and the worker.

(3) must be legal and must not violate the mandatory provisions of laws and regulations.

(4) changing labor contracts must be written in order to prevent enterprises from being passive in the absence of evidence.

(5) the change of the labor contract should be carried out in time and signed with the employee the change agreement.

Combined with the circumstances of this case, the change of employee positions is followed by the change of salary.

If the two parties stipulate the principle of "pay change with job" in the contract, or have already stipulated this principle in the rules and regulations issued by employees, then the enterprise can determine the salary of the employee according to the corresponding standards of the new post; if the two parties do not stipulate the principle of "salary change with job change", the enterprise can not make adjustments to the staff's remuneration without the consent of the employee.