Why is there such a false statement that the new labor contract law has been promulgated? It is because the state did not promulgate the labor contract law in time after the promulgation of the labor law. In order to adjust the labor relations between employers and workers in various places, local government departments have adopted the method of formulating local laws or regulations and formulated relevant policy documents for adjusting labor relations in their respective regions. For example, Shanghai has provisions on labor contracts in Shanghai, Beijing has provisions on labor contracts, and Shenzhen has provisions on labor management in Shenzhen Special Economic Zone ... These local regulations are temporary provisions for exercising the functions of the labor contract law and cannot be regarded as labor contract law. After the entry into force of 5438+ 10 1 Labor Contract Law in June 2008, all these local regulations will be abolished, because their historical mission has been completed. It is precisely because of the existence of these local laws and regulations before this that it is reasonable for some people to regard the newly promulgated labor contract law as a new labor contract law.
Although the specific rules for adjusting labor relations will be different after the promulgation of the labor contract law, there is no difference between the old and the new labor contract law itself, because it is formulated for the first time. Labor law is the basic law in the field of labor, its main content is some principles, and its main provisions reflect the legislative spirit and principles. There must be a number of supporting laws under the labor law, which can constitute an integral law in the labor field.
The Labor Contract Law is one of the sub-laws of the Labor Law, which forms the relationship between the subordinate law and the superior law with the Labor Law. In addition, the Employment Promotion Law was adopted at the 29th meeting of the Standing Committee of the 10th NPC on August 30th, 2007, and was formally implemented together with the Labor Contract Law on June 5th, 2008. The draft Labor Dispute Mediation and Arbitration Law was also reviewed for the first time by the National People's Congress Standing Committee (NPCSC) in August 2007. The draft Social Insurance Law has been drafted for two or three years, but it has not yet been submitted to the National People's Congress Standing Committee (NPCSC).
Recently, the Ministry of Labor initiated the legislative process of the Wage Law. It can be seen that in recent years, there are more and more legislative councils in the field of labor, and these laws are closely related to each of us and every employer.
Although the Labor Contract Law follows the legislative spirit of the Labor Law, it will conflict with the Labor Law, especially the chapter of Labor Contract, in the implementation of specific rules. Once there is a legal conflict, how to solve it in practice is a very realistic problem.
Some people may say that since the labor contract law is a sub-law of the labor law, there should be no conflict. However, the labor contract law is a sub-law of the labor law, which is only a theoretical statement. When the "Draft Labor Contract Law" was first considered, there was indeed a sentence in the (draft) clause: "This Law is formulated in accordance with the Labor Law." However, there is no such sentence in the officially promulgated Labor Contract Law. Then, how should we understand the relationship between labor contract law and labor law? On the second day after the Labor Contract Law was officially passed, the National People's Congress Standing Committee (NPCSC) held a press conference. A reporter asked a similar question at the meeting, and the answer was that the labor law was discussed and passed by the National People's Congress Standing Committee (NPCSC), and the labor contract law was also discussed and passed by the National People's Congress Standing Committee (NPCSC).
What is the significance of this statement to the actual operation of the Labor Contract Law? Although the labor contract law is regarded as the subordinate law of the labor law in theory, in practice, because both of them are laws discussed and passed by the National People's Congress Standing Committee (NPCSC), according to the provisions of China's Legislation Law, if there is a legal conflict between two laws in the same institution and in different periods, a new law should be adopted to solve this conflict.
Therefore, if the provisions of the Labor Law and the Labor Contract Law are inconsistent, don't take it for granted that since the Labor Law has not been abolished, it can be handled in accordance with the provisions of the Labor Law. In fact, it should be handled in accordance with the provisions of the Labor Contract Law, because the new provisions of the Labor Contract Law have replaced the relevant provisions of the Labor Law.
For example, both the Labor Contract Law and the Labor Law stipulate that "employees who have worked continuously 10 years or more should sign open-ended contracts", but they are completely different. Article 20 of the Labor Law stipulates that if an employee has worked continuously in the same unit for more than ten years and both parties agree to extend the labor contract, if the employee proposes to conclude an open-ended labor contract, he shall conclude an open-ended labor contract. According to this clause, if the employee's contract expires and he has worked continuously in this unit for more than ten years, the employer may sign a one-year labor contract with him if both the employer and the employee are willing to renew it, but the employer has not asked the employee about the term, and the employee himself has not proposed to sign an open-ended labor contract.
situation
Lao Wang has worked in a unit for more than ten years and has feelings for this unit. One day his labor contract expired, and the unit asked him to stay, and the two sides renewed the labor contract. Lao Wang thought that he had worked in this unit for more than ten years, and he could sign an open-ended contract with the unit according to the provisions of the labor law. Thinking of this, he wants to remind the unit. But on second thought, the unit's personnel policy level must be higher than his own, and he must have known this rule for a long time, so there is no need to remind others, so he kept silent. The head of the personnel department of the unit only drafted a one-year contract for Lao Wang to sign. At that time, Lao Wang didn't look closely, but signed his name with a stroke of the pen.
After a month, Lao Wang inadvertently took another look at the contract and found that the term of the labor contract was one year. So he took the contract to the personnel manager and asked, "Why don't you sign an open-ended contract with me?" The HR manager replied, "At that time, you didn't say you wanted to sign an open-ended contract. Our current contract is not illegal. "
Having said that, some people may not quite understand what an open-ended labor contract is. The so-called non-fixed-term labor contract refers to a labor contract in which the employer and the employee agree on the termination time without a contract. The characteristic of this kind of labor contract is that the labor contract has no definite termination date, and the labor relationship can only be terminated if it meets the statutory or agreed conditions.
It can be seen that after signing such a contract, workers can work in this enterprise for a long time if there are no major problems during their work. Many workers are willing to sign such open-ended labor contracts with enterprises in order to gain a sense of job stability. However, many enterprises are reluctant to sign open-ended labor contracts with employees. They will sign short-term fixed-term contracts with employees as a form of motivating employees, forcing them to work hard and produce excellent performance, and at the same time facilitating enterprises to take advantage of the golden age of workers. Once the golden age is over, the enterprise will immediately terminate the contract without any additional burden. That is to say, in China, generally speaking, employees are willing to sign open-ended labor contracts, while enterprises are unwilling to sign them. This is why Lao Wang's unit is unwilling to sign an open-ended contract with him, but only willing to sign a one-year contract.
Lao Wang feels that he has worked in this unit for more than ten years. According to the labor law, he should sign an open-ended contract, but it is wrong for the unit to renew the contract for one year. But the personnel manager of the unit showed Lao Wang a labor law. Article 20 of the Labor Law stipulates: "If a laborer has worked in the same employer for more than ten years continuously and both parties agree to extend the labor contract, if the laborer proposes to conclude an open-ended labor contract, he shall conclude an open-ended labor contract."
According to this regulation, the personnel manager explained to Lao Wang: "There are three preconditions for a unit to conclude an open-ended labor contract with employees: first, employees have worked in the same employer for more than ten years; 2. Both parties agree to renew the labor contract; Third, the laborer proposes to conclude an open-ended labor contract. When the above three conditions are met at the same time, the unit must conclude an open-ended labor contract with the employee. Now, although you have met the first and second conditions for signing an open-ended labor contract, you did not ask the unit to sign an open-ended labor contract when renewing the labor contract, that is, you did not meet the third condition. In this case, if the three prerequisites for the company to conclude an open-ended labor contract with employees are not met at the same time, the one-year labor contract signed by the company with you cannot be said to be a violation of the labor law. That is to say, according to the provisions of the Labor Law, if a worker has worked continuously in the same employer for more than ten years, when renewing the labor contract, if the worker himself does not propose to sign an open-ended contract, the employer may sign a labor contract with him for one year or several years. "
It should be said that this explanation of the personnel manager is in full compliance with the provisions of the labor law.
According to this logic of the personnel manager, we can see that in order not to sign open-ended contracts with employees, some enterprises in reality say "whoever wants to sign open-ended contracts, we will not renew them". In this way, many employees are afraid to mention it when renewing their labor contracts in order to keep their existing jobs, so enterprises can openly renew their contracts with employees for one year. Employees will never feel job stability. Once they are old and the golden age is exhausted by enterprises, they may terminate their labor contracts and find it difficult to find new jobs.
In order to reverse this unfavorable situation for workers, the Labor Contract Law issued this time has made such a new provision: if a worker has worked in an employer continuously for ten years, when renewing the labor contract, he shall conclude an open-ended labor contract, except that the worker proposes to conclude a fixed-term labor contract.
According to this new regulation, let's continue to look at the above case. After the implementation of the labor contract law, the results will be very different.
situation
Similarly, after working in the company for ten years, Lao Wang did not say that he would sign a fixed-term contract or an open-ended contract when he renewed his contract. After the company gave him a one-year contract text, he signed it. A month later, Lao Wang asked the unit to change to an open-ended contract, and the unit insisted on not changing it. Later, Pharaoh had no choice but to apply for arbitration. When the arbitration institution holds a court session, the arbitrator must first verify how many years Lao Wang has worked in this unit. Lao Wang has worked for more than ten years, which is an objective fact. Next, the arbitrator verifies whether both parties agree to renew the contract. At this point, there is no problem, because Lao Wang has renewed his contract with the unit for one year. The arbitrator then asked the unit: "The employee meets the conditions for signing an open-ended contract. Why only sign a one-year contract? " The unit replied: "We just wanted to sign a one-year contract and then gave him a one-year contract text. He signed it without saying anything. Isn't this the consensus of both sides? "
The arbitrator asked Lao Wang again, "When you renewed your contract, did you ask the unit to sign a contract with a time limit?" Lao Wang said, "No, I think the unit will sign an open-ended contract with me." The arbitrator asked the unit: "Is what the employee said true?" The unit also admitted that Lao Wang's words were true. Therefore, the arbitrator ruled: "According to Article 14 of the Labor Contract Law, the unit must sign an open-ended contract with Lao Wang."
As can be seen from the above cases, the legal liability of the employer is different before and after the promulgation of the Labor Contract Law for the same contract signing behavior. Therefore, when we resolve legal conflicts, we should follow the provisions of the Labor Contract Law.
Legal connection
Article 20 The term of a labor contract can be divided into fixed term, non-fixed term and completion of certain work as the term.
If the employee has worked in the same employer continuously for more than ten years and both parties agree to extend the labor contract, if the employee proposes to conclude an open-ended labor contract, he shall conclude an open-ended labor contract.
Article 14 An open-ended labor contract refers to a labor contract in which the employer and the employee agree that there is no fixed termination time.
The employer and the employee may conclude an open-ended labor contract through consultation. Under any of the following circumstances, if an employee proposes or agrees to renew or conclude a labor contract, an open-ended labor contract shall be concluded in addition to the employee's proposal to conclude a fixed-term labor contract:
(1) The laborer has worked in the employing unit continuously for ten years;
(2) When the employing unit implements the labor contract system for the first time or the state-owned enterprise is restructured and re-concludes the labor contract, the employee has worked in the employing unit continuously for ten years and is less than ten years away from the statutory retirement age;
(3) Two fixed-term labor contracts have been concluded in succession, and the employee does not have the circumstances stipulated in Items 1 and 2 of Article 39 and Article 40 of this Law, and the labor contract is renewed.
If the employer fails to conclude a written labor contract with the employee within one year from the date of employment, it shall be deemed that the employer has concluded an open-ended labor contract with the employee.