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Analysis Of Eight Hot Experts In The Labor Contract Law

2008/10/10 17:00:00 41867

After the promulgation of the regulations on the implementation of the labor contract law (hereinafter referred to as the "Regulations"), some of the disputes have been clarified. Whatever the regulations or the labor contract law itself, what will change the labor relations?

To give readers a better understanding of the regulations on the implementation of the labor contract law, we invite experts and legal workers to interpret the hot topics for you.

Hot spot 1

Re signing contract seniority to "zero" violation

A case of Lee, a large shopping mall employee in Xi'an East Street, complained that at the beginning of this year, the company informed them to sign contracts with them, but the contract did not advance a few years' service age.

She was worried about whether such a contract would "return to zero" for her previous working years. Mr. Yang, who works in a research institute in Xi'an, reflected that he had worked in a research institute. At the end of last year, the Institute sent him to a research institute under his subordinates, while the new unit did not recognize his previous working years.

Xie Decheng, director of the research center of labor law and social security law, Northwest University of Politics and Law: at the end of last year, the phenomenon of circumventing the labor contract law was very common. Many enterprises signed contracts with employees, or forced their employees to the new employers, trying to return the seniority of their employees to zero.

The newly enacted regulations clearly stipulate that the practice of returning the working age to zero is illegal. The starting time of the length of service should be calculated from the date of the employer's employment, including the length of service before 2008, which has led some enterprises to rush to lay off workers or re sign labor contracts before the implementation of the labor contract law.

In addition, the regulations also stipulate that the laborers are not assigned to the new employer units for their own reasons, and the working years of the workers in the original employing units are calculated as the working life of the new employing units.

In this way, the length of service of Mr. Yang should be calculated from the time limit for his work in the Institute.

Hot spot two

How to calculate double pay?

In March of this year, Xiao Yue, a worker working in a hospital in Shaanxi, was sentenced to the provincial labor dispute arbitration committee for failing to sign a contract with her.

According to the labor contract law, the hospital should pay double wages for the 232 months of this year.

Xie Decheng read: when should double pay be paid? There is also controversy in the academic circles before the "Regulations".

The introduction of the regulations has made it clear that double pay can be paid up to 11 months, and the starting time for employers to pay double wages to workers is the next day after the full day of employment. The deadline is for the first day of the labor contract.

If a worker has not signed a labor contract for one year after the day of his own employment, he shall pay double wages from the next day to the full day of the first month after the day of his own employment, and become a contract with no fixed term on that day.

Hot spot three

Workers do not want to sign contracts with units.

The case "I opened a small restaurant, recruited several employees, wanted to sign labor contracts with them, but because of the mobility of their employees, they were unwilling to sign labor contracts."

After the implementation of the labor contract law, some restaurants and other industries due to strong liquidity, some employees are afraid of contracts to restrain themselves, often refused to sign a labor contract, some enterprises are also very embarrassed, afraid not to sign the contract workers will ask for double wages.

Liu Luxun, lawyer of Renhe Wanguo law firm, there are still some workers, especially those who work part-time, who are unwilling to sign labor contracts.

The regulations clearly stipulate that within one month from the date of the employment of the employer, if the employer fails to conclude a written labor contract with the employing unit after written notice by the employing unit, the employer shall notify the worker in writing to terminate the labor relationship without paying the economic compensation to the laborer, but shall pay the laborer the actual work hours in accordance with the law.

For a period of less than one month from the date of employment, the regulations stipulate that if a worker fails to conclude a written labor contract with the employer, the employer shall notify the worker in writing to terminate the labor relationship and pay two times the wage and financial compensation in accordance with the provisions of the labor contract law.

This has urged the employing units to sign contracts with laborers in a timely manner, and has also strengthened their restrictions on labourers.

Hot spot four

The social security clause must be signed in the labor contract.

Case 1, employees of the coal industry reflected that although the unit signed labor contracts with them this year, the contract required employees to pay their own social insurance, and the company returned them on the basis of employee payment vouchers.

It is understood that there are still some companies in the contract with employees, there is no social insurance in this contract, the company does not pay social security for employees, and some employees negotiate with the company, unwilling to pay social insurance.

Gao Jin, lawyer of Shaanxi Zhi Zheng law firm: the labor contract law clearly stipulates that social insurance is a necessary clause in the labor contract, and units and employees should participate in social insurance according to law.

No matter whether there is a social insurance contract, the unit should pay in accordance with the law.

In accordance with the regulations, employers can not pay social insurance premiums for workers in accordance with the law. Workers can terminate their labor contracts with employers.

Hot spot five

No fixed term contract is not a "iron rice bowl".

The case of a peasant worker in a musical instrument factory in Xi'an, who worked for more than 10 years in the factory, was dismissed by the factory last year.

This year, the party has been supported by labor arbitration departments and courts, and the instrument factory should sign an unfixed term contract with the party.

"No fixed term contract" has caused many enterprises to feel "panic". In the society, they think they have returned to the previous "iron rice bowl" and "lifelong system".

Zhao Yansong, a legal worker: the party has the right to sign a "non fixed term contract" with the unit, because he has worked for more than 10 consecutive years, and the unit dismissed him without any reason, which is a serious violation of the labor contract law.

Some experts believe that the regulations stipulate the termination of labor contracts including non fixed term labor contracts, clarify 13 situations where workers can terminate labor contracts according to law, and 14 cases where employers can rescind labor contracts in accordance with the law.

This stipulation clarifies that the unfixed term labor contract is a misunderstanding of "iron rice bowl" and "lifelong system".

At yesterday's news conference of the new China office, Yin Yumin, Minister of the Ministry of human resources and social security, made clear that the term "no fixed term contract" is not an "iron rice bowl".

Hot spot six

Can employment assistance contract be signed?

In order to promote employment, Xi'an, Baoji and other places have successively provided a number of public welfare posts to help unemployed people to get jobs.

Some workers who are employed by public welfare posts reflect that although their wages exceed the minimum wage standard, they can not sign "no fixed term contract".

Xie Decheng: employment assistance posts are purchased by the state and belong to special employment; before the introduction of the regulations, the labor contract law does not specify and is vague.

The regulations specifically put forward the public welfare posts offered by the government to provide job subsidies and social insurance subsidies for those who are hard pressed for employment. Their labor contracts do not apply to the provisions of the labor contract law concerning the non fixed term labor contracts and the payment of economic compensation.

Hot spot seven

How much is the minimum wage during probation period?

Many graduates who work just now reflect that the company has provided them with a probationary salary. Some of them are not lower than the minimum wage standards, but they are quite different from the official salaries. This is not fair.

Xie Decheng: at present, the wages of many units during the probation period are low, which seriously violates the legitimate rights and interests of workers.

In order to prevent the employing units from abusing the probation period, the labor contract law and the regulations stipulate clearly that the probation period should not exceed 1 months if the labor contract period is more than 3 months or less than 1 years, and the probation period should not exceed 2 months if the term of the labor contract is 1 years or less, and the probation period of more than 3 years and fixed period is not allowed to exceed 6 months.

The regulations stipulate the wages of probationary period in detail, and the wages of labourers during probation period shall not be lower than 80% of the lowest wage of the same posts of the same unit, or 80% of the wage stipulated in the labor contract, and shall not be lower than the minimum wage standard of the employing units.

The two 80% rule is conducive to safeguarding the rights and interests of workers during probation.

Hot spot eight

Compensation should be "all wages".

The case "my monthly salary is around 1500 yuan, and the basic salary is only 500 yuan. When the company dismissed me, it was compensated by the standard of 500 yuan."

Because they were not satisfied with the compensation standard, the employees of a company in Lantian County once referred the unit to the labor arbitration department.

Xie Decheng: how to calculate monthly salary for economic compensation has often become the focus of disputes between employers and employees.

The regulations have clearly stipulated this and avoided disputes in the future.

Monthly wages for economic compensation will be calculated according to the workers' wages, including time wages or piecework wages, and monetary income such as bonuses, allowances and subsidies.

The average wage of a worker within 12 months before the termination or termination of the labor contract is lower than the local minimum wage standard shall be calculated according to the local minimum wage standard.

If the workers are less than 12 months' work, the average wage shall be calculated according to the actual working months.

Newspaper reporter Zhou Yantao

Yin Yumin, Minister of human resources and social security,

Transfer of endowment insurance for migrant workers is expected to be launched at the end of the year.

Yesterday afternoon, the State Council held a press conference. The head of the two Department of the Ministry of human resources and social security and the Legislative Affairs Office of the State Council answered reporters' questions on the hot issues of the labor contract law and the newly promulgated regulations on the implementation of the labor contract law.

Since the promulgation and implementation of the labor contract law, there have been many controversies.