Labor Legislation Is Relatively Fast. Conflicts Between The Old And New Laws Are Unavoidable.

Since the beginning of reform and opening up, great changes have taken place in China's social economy, and labor laws have also undergone great changes. Especially in recent years, labor legislation has been relatively fast, but the old law has not been followed up, and conflicts between the old and new laws are unavoidable.

There are many legislations in labor legislation, and there are conflicts between different legislations.

Defects in legislative technology will also lead to conflicts between labor laws and regulations.

In order to solve the conflict of rules and regulations in labor law, in legislation, we should unify the legislative policy and abolish the legislation at the same time. After the completion of the legislation, the relevant laws and regulations, especially the lower level legal norms, will be carded out in a timely manner. Recently, the China Labor and Social Security Research Institute and the social science publishing house jointly issued the "China labor security development report (2016)" (the Chinese labor protection Blue Book), sorting out two laws, 7 administrative regulations, 15 departmental regulations, 139 replies, 139 opinions, 48 notifications, etc.

However, in the above labor relations legislation, there are differences between individual clauses. Experts suggest that the relevant norms making organs urgently need to clean up.

Ask this question, maybe many people will say, 40 hours.

Because according to the regulations of the State Council on the working hours of workers, workers work 8 hours a day and work 40 hours a week.

This requirement shall be implemented no later than May 1, 1997.

But there must be other answers in practice.

Reporters on a science and Technology University website, a large enterprise group recently issued the school recruitment information clearly written: "the long shift staff work six days a day off (44 hours a week, Sunday rest)."

According to the thirty-sixth provisions of the labor law of the People's Republic of China and the instructions of the Ministry of labour on the provisions of the People's Republic of China labor law, the longest working time is 44 hours.

Li Wenjing, Assistant Research Fellow of the Labor Science Research Institute of the Ministry of human resources and social security, told the "Legal Daily" reporter that although we have generally accepted the longest working hours of 40 hours in practice, we should obviously apply the provisions of the labor law according to the applicable rules of the law stipulated by the legislative law, that is, the normal working hours are not more than 44 hours per week.

Li Wenjing's suggestion is that in order to avoid these conflicts in form, we propose to amend the thirty-sixth labor laws and explicitly authorize the State Council to formulate specific working hours within the statutory scope.

While avoiding conflicts, this amendment also gives the State Council a certain degree of discretion, making it easier for the State Council to establish a man hour system in a timely and reasonable manner according to the social and economic situation.

Li Wenjing carding found that in the field of labor relations in China, there are disagreements among the two existing laws, 7 administrative regulations, 15 departmental rules and numerous replies, replies, opinions and notices.

In this regard, Shen Jianfeng, vice president of Law School of China Institute of Industrial Relations, told the "Legal Daily" reporter: "regulating conflicts is a common phenomenon in China's labor law."

Shen Jianfeng believes that the reason lies in the fact that the labor law has strong social policy color. With the development of social economy, rules need to be adjusted constantly.

"Secondly, there are many legislations in labor legislation, and there is a conflict between different legislations.

Finally, defects in legislative technology will also lead to conflicts between labor laws and regulations. "

Shen Jianfeng said.

Li Wenjing carding also found an inconsistent situation, the new law did not provide for the relevant content, whether the old regulations need to continue to implement.

For example, the relevant provisions of Medicaid.

For workers who have terminated or terminated the labor contract on sick or non public injury, the employer has paid twenty-second medical expenses on the implementation of the labor contract system, the sixth article on the economic compensation measures for violating and relieving the labor contract, and thirty-fifth opinions on the implementation of some issues concerning the labor law of the People's Republic of China.

However, the labor contract law of the People's Republic of China only stipulates that employers need to pay economic compensation, and no medical subsidy is provided.

In March 16, 2011, Sun Mou signed a written labor contract with a company, and the agreed labor period was from March 16, 2011 to December 31, 2013.

Since then, sun because of illness, from February 27, 2012 to November 2, 2012, 9 times in hospital treatment.

In addition, since August 27, 2012, sun did not work for a company because of illness.

In June 2013, Sun Mou asked for the termination of labor relations on the grounds of hospitalization for his illness and a company's deduction of wages during the medical treatment period.

One of the controversial issues is whether the employer should pay for medical treatment.

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The court of first instance held that, in order to regulate the economic compensation standards for labourers violating and relieving labor contracts, the former Ministry of labor has formulated the department rules and regulations for the employer to pay the medical subsidy according to the provisions of the labor law.

After the implementation of the labor contract law, the above regulations have not been abolished by the authorized organs, and the sixth provisions on Medicaid fees do not conflict with the higher authorities, and are still effective.

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Therefore, sun asked a company to pay the medical subsidy, and the court supported it.

After the first instance decision, the company filed an appeal.

After hearing the case, the court of second instance dismissed the appeal and upheld the first instance decision.

Li Wenjing believes that although the labor contract law does not provide medical subsidies, the function of Medicaid is obviously different from the function of economic termination of termination of labor contracts, and should continue to be applied in cases where the relevant provisions have not been explicitly abolished.

In addition, Li Wenjing also found that the legal liability of the employer's deduction or undue arrears of wages (not paid in full and in time) is not consistent with the laws, administrative regulations and departmental rules. There is a disagreement between the laws, administrative regulations and departmental rules when the labor contract is not paid according to law.

In Shen Jianfeng's view, the conflict between the legal norms of labor relations will have a great impact on the judiciary, law enforcement, workers and employers.

Shen Jianfeng believes that the biggest impact is to increase the difficulty of applying the law to the judiciary and arbitration institutions, resulting in the occurrence of different cases of the same case and the damage of the authority of the law.

"It reduces the predictable nature of labor laws and regulations by workers and employers.

In the process of labor employment, the behavior rules are uncertain. For employers, on the one hand, they lead to higher cost of employment management. On the other hand, coexistence of the employer's obligation rules and the rules of employing units under the background of market economy often result in the burden of enterprises. The laborers are not sure about the legal rules to protect their interests, and the cost of safeguarding rights and interests is increasing.

Shen Jianfeng said.

According to Li Wenjing's comb, our country's laws, departmental rules and normative documents have very inconsistent provisions on the probation period, and need to be unified.

According to the labor contract law,

For a term of three months or less, the probation period shall not exceed one month; if the term of the labor contract is less than one year or less than three years, the probation period shall not exceed two months; the probation period of three years or more with a fixed term and no fixed term shall not exceed six months.

The notice on the administration of labor and employment in the state railway and the Ministry of labour on the implementation of the labor contract system stipulates that the labor contracts that are less than six months, less than one year and less than one year or less for more than six months shall be prescribed on probation periods of not more than 15 days, 30 days and 60 days.

Labor department's labor contract

And the reply to the probation period "second stipulates that the probationary period of the contract workers is three months to six months.

Li Wenjing believed that in view of the above conflicts, the labor contract law should be applied in accordance with the law priority principle.

It is suggested that the relevant contents of the normative documents of the relevant departments be no longer applicable through proper ways, and it is suggested that the railway administration departments amend the relevant contents of the "National Railway Labor Employment Management Measures".

Shen Jianfeng believes that in order to solve the conflict of norms in the labor law, in legislation, we should unify the legislative policy, abolish it and carry out it at the same time. After the completion of the legislation, we should comb out relevant legal norms, especially the lower level legal norms.

"Combing the norms in the field of labor law is an urgent and arduous task."

Shen Jianfeng told reporters.

Shen Jianfeng said that the technology applicable to the law should also be constantly improved.

The legislation law has established some rules to solve the conflict of laws. To some extent, these rules can solve the conflict between the old law, the special law and the general law.

From the perspective of perfecting the mechanism, we should improve the censorship system of our legal norms. Although the rules of normative review have been set up in the legislative law, the rules themselves are too difficult to start and implement, and the conflict of laws that has been found is hard to solve through this mechanism.

Shen Jianfeng said