????????"People’s Republic of China (PRC) Labor Contract Law (Draft)" has been published to the public for comments since March 20, 2006, which has aroused strong repercussions in the society. People from all over the country actively put forward their opinions through the Internet, newspapers and other media. As of 8: 00 a.m. on April 6, 2006, the Legislative Affairs Commission of the National People’s Congress Standing Committee (NPCSC) had received 37,560 opinions from local people, including 32,791 opinions from March 28 to April 6. The main opinions put forward from March 28th to April 6th are summarized as follows:
????????First, the general view
????????Many people believe that it is an important measure for democratic and scientific legislation to openly solicit opinions from the whole society, which is commendable.
????????Most people think that the draft is scientific in terms of structural arrangement and content setting, which is based on reality and long-term. It is a law that really cares about the disadvantaged groups and protects the interests of the workers, and it is the patron saint of the disadvantaged groups. It is hoped that the draft will be formally promulgated before the May 1 ST holiday after making corresponding amendments, so as to protect the rights and interests of workers.
????????Some people think that the draft not only regulates the rights and obligations of the parties in the labor contract relationship, but also stipulates the supervision and inspection responsibilities of the government, which is of great practical significance.
????????Some people think that the legislative thinking of the draft is inclined to protect workers, but it does not take into account the stratification of workers. Therefore, the specific provisions of the draft are not inclined to the bottom workers, but to the top workers, making the draft a "protection law for aristocratic workers." At present, some provisions of the draft deviate from the reality in China. It is suggested that the draft should change from the idea of "high standards" to the idea of "wide coverage", expand the scope of application of the draft, and effectively protect the workers at the bottom.
????????Some people think that some concepts in the draft are too broad and many provisions are beneficial to workers, but they are too general and not easy to operate, which will inevitably lead to disputes in practice.
????????Some people think that there are many types of employers, but the draft only defines employers as large and medium-sized state-owned enterprises when designing the provisions, without fully considering the actual situation of private small and medium-sized enterprises. A large number of small private enterprises rely on meager profits to maintain normal business activities and contribute to alleviating the pressure of labor and employment. If it is fully implemented according to the existing contents of the draft, such as paying corresponding economic compensation when the contract is terminated, many small and medium-sized private enterprises are likely to face bankruptcy and bankruptcy.
????????Some people think that the construction of harmonious labor relations can not be achieved only by means of supervision and punishment, and it is unrealistic for a group that has been "specially rectified" by law to actively participate in the construction of harmonious labor relations. It is also difficult for a group of workers who can realize their rights and interests by reporting, applying for arbitration and litigation to feel harmonious. The draft proposal should not only focus on rectification, but also think more about the responsibility of the government and consider how to establish a mechanism to encourage employers and workers to participate in the construction of harmonious labor relations. For example, the government can publicize the basic standards of labor contracts for employers free of charge through public websites, and workers can inquire for free, which will solve the problem of information asymmetry and help form healthy competition.
????????Second, about the legislative purpose
????????There is a heated discussion on the legislative purpose of the labor contract law, and there are obvious differences of opinion. Most people agree that the first article of the draft clearly protects the legitimate rights and interests of workers, and that the legislative value of the Labor Contract Law, as a law regulating labor relations, lies in the pursuit of the balance between employers and employees. In practice, because employers are too strong and workers are too weak, if the draft gives equal protection to employers and workers, it will inevitably lead to an unbalanced relationship between employers and employees and deviate from the proper value orientation of the labor contract law.
????????Others are opposed and think that any law should be fair. Not all workers are weak, and some high-quality workers urgently needed by society are in a strong position in labor relations; Workers are not weak at all times, and they are not weak when they strive to be greater than their contributions. Employers are not destroyers of socialism, but are making contributions to society just like workers. Employers need to stand the test of market economy. Therefore, the legitimate rights and interests of employers also need to be protected in the labor contract law. It is suggested that the legislative purpose of the draft should be revised to protect the legitimate rights and interests of both parties to the labor contract.
????????Some people think that the draft should protect the legitimate rights and interests of both workers and employers in order to promote the formation of harmonious labor relations. In view of the weak position of workers, they can be appropriately inclined to workers in specific provisions, but this does not affect the legislative purpose of the draft is to protect the legitimate rights and interests of both parties to the labor contract.
????????Third, about the legislative basis
????????Most people think that the labor law is biased towards workers. It has been promulgated for more than ten years, and practice has proved that it can safeguard the legitimate rights and interests of workers. The draft should be based on the labor law and protect workers with confidence.
????????Some people think that the labor law was enacted in 1994 when the people’s status as masters fell to a historical low, so the labor law ignores the status and role of the workers and staff of state-owned enterprises as the pillar of the national economy. In order to reflect the characteristics of the new period, it is suggested that the labor law should be greatly revised. The draft should be based not on the labor law but directly on the constitution.
????????Some people think that the draft is based on the labor law, but from the content point of view, there are many breakthroughs in different degrees compared with the labor law, so it is suggested to solve the connection problem between the draft and the labor law.
????????IV. Definition of labor relations
????????Article 3 of the draft stipulates that the term "labor relations" as mentioned in this law refers to the rights and obligations arising from the employer’s employing laborers as its members and the laborers providing paid labor under the management of the employer. Some people think that the concept of labor relations is the basis of the draft, and it is suggested to define it carefully. At present, the definition of labor relations in the draft is too broad and principled, which has little effect on guiding practical work and solving the dispute between employers and workers, and causes other ambiguities, and it is suggested to amend it.
????????Some people think that whether it constitutes a labor relationship cannot be judged by "being a member". In the current market economy, there are more and more occupations that are not members of the employer, such as migrant workers, seasonal workers, entertainers, and employees outside the organization. Some workers may have worked for the employer for many years, but they are still not members of the employer. Taking "being a member" as the criterion to judge whether it is a labor relationship is in contradiction with some provisions in the draft, such as the labor relationship in a labor contract with the completion of a certain job as the deadline, and the establishment of labor relations between foreign enterprises and workers in China.
????????Some suggest that neither "being a member" nor "managing the unit" can be the constitutive requirements of labor relations. If the employer fails to confirm "being a member" or hides or destroys the evidence of "being a member" and "managing the unit", or the laborer cannot provide these evidence, the court may decide that labor relations do not exist.
????????Some suggest that "providing paid labor" cannot be an essential element of labor relations. Some volunteers carry out voluntary activities, and some even volunteer to work for several years. Although volunteers do not need to be paid for their work, they have formed a labor relationship with employers, and their labor protection, insurance and other rights and interests need to be protected. Some college graduates are willing to engage in "zero-wage" jobs, and other labor rights and interests of unpaid workers need to be protected, and they certainly form labor relations with employers.
????????Some people think that the definition of labor relations in the draft is vague, and it is impossible to distinguish between labor relations and civil relations such as employment relations, labour relation and processing contracts. It is suggested that the distinguishing criterion should be whether the labor post can be separated from the production and operation business process of the employer. If the labor post cannot be separated from the production and operation business process of the employer, it constitutes a labor relationship.
????????V. On the Collective Contract
????????Many people agree that it is not enough to mention the collective contract in the draft, and the collective contract should be specially and centrally stipulated. Some people think that a collective contract is a contract concluded as all employees, and the corresponding party of all employees is the investor. Therefore, a collective contract is a general agreement and agreement on the rights, responsibilities and obligations of employees and employers. Collective contract and labor contract are inextricably linked. In some places, collective contract has become an effective mechanism to adjust labor relations, so collective contract should be the soul of labor contract law.
????????Some pointed out that the practice in many countries proved that the collective contract is an effective measure to improve the status of workers in labor relations, and it is also the cornerstone to stabilize labor relations. China’s labor law stipulates the collective contract, but the corresponding provisions are not operable and exist in name only. In practice, as a weak party, workers can’t form a joint force by means of collective contracts, so they don’t have the status of equal consultation with employers. The absence of collective contract has become one of the reasons that hinder the formation of harmonious labor relations. It is suggested that the draft set up a special chapter to promote and standardize collective contracts.
????????Some people think that making a special chapter on the collective contract system in the draft is conducive to the coordination between the labor contract and the collective contract system, to clearly define and standardize the collective contract, to highlight the uniqueness and importance of the collective contract system, to promote the establishment and improvement of the collective contract system, and to provide a clearer legal basis for giving full play to the role of the collective contract system.
????????Some people think that the draft should strengthen the awareness of employers to sign collective contracts, clearly stipulate that employers should not refuse to sign collective contracts without justifiable reasons, punish enterprises that refuse to establish a collective negotiation and sign collective contracts system, and stipulate that they should not be recommended to participate in various advanced awards organized by the government and trade unions.
????????Some draft proposals should clearly stipulate the scope of application, subject qualification, necessary clauses, time limit, signing, performance, modification, supervision and labor disputes of collective contracts.
????????Some suggestions, the draft added provisions of the local people’s governments at all levels of labor security and relevant departments and the corresponding trade union organizations, enterprise representative organizations to establish a tripartite organization to coordinate labor relations, participate in the formulation of collective contracts, and supervise and inspect the implementation of labor contracts and collective contract systems by employers.
????????VI. Administrative authorities in charge of labor contracts
????????Many opinions hold that the administrative authority in charge of labor contracts should be the labor security department, and it is suggested to delete the provision that the township people’s government has the right to supervise the labor contract system in the second paragraph of Article 6 of the draft. Some people think that the provisions of the second paragraph of Article 6 of the draft are inconsistent with those of Article 85 of the Labor Law.
????????Some people think that the diversity of law enforcement subjects will lead to the conflict of departmental interests, and the county-level labor and social security department and the township people’s government are at the same level. If two units at the same level are in charge of one thing at the same time, it will definitely lead to mutual shirking, which is not conducive to protecting the rights of workers.
????????Some people think that in the past, the labor and social security department was responsible for supervising the implementation of the labor contract system, and the township and town governments did not set up a special department in charge of labor, nor were they equipped with full-time staff familiar with the labor law, so it was difficult to perform this statutory duty in practical work. It is suggested that the labor and social security department at or above the county level may entrust the township and town governments to supervise and manage the implementation of the labor contract system within their respective administrative areas when necessary.
????????VII. On the Role of Trade Unions
????????Some opinions hold that the trade union organization is a bridge between leaders and workers, and matters involving the vital interests of workers should be resolved through consultation led by the trade union, and the draft should highlight the role of the trade union organization in the labor contract system.
????????Some people think that the role of trade unions should be actively played in practice. Although the draft stipulates the duties of trade unions, it does not provide necessary conditions for trade unions to perform their duties, and it does not stipulate the legal responsibility for trade unions not to perform their duties. It is suggested to make amendments.
????????Some reflect that some employers have not established trade unions; Although some employers have set up trade unions, the chairman of the trade union is the deputy leader of the unit, the former leader or the head of the personnel department; Although some employers have trade unions, the chairman of the trade union is an ordinary worker, who has little right to speak, so it is difficult to safeguard his rights and interests. Therefore, the draft proposal should be adjusted accordingly.
????????Some suggestions are made to delete the provisions in the draft that the trade union directly negotiates with the employing unit, formulates unit rules and regulations and signs collective contracts. In practice, the trade union organization is actually the management organization of the employer, which rises and falls together with the employer and has little to do with the immediate interests of the workers. If trade unions are allowed to directly negotiate with enterprises about relevant rules and regulations or collective contracts, then employers will choose the way to negotiate with trade union leaders, and the workers’ congress or workers’ congress may become a decoration.
????????Some suggest that the draft should clearly define the types of trade unions, whether they are within the employing unit or in a certain area beyond the employing unit.
????????Eight, on strengthening the protection of old workers.
????????Many old workers’ proposals tend to protect the legitimate rights and interests of old workers, thinking that old workers have worked for more than 20 years, contributed their youth to society and the country and made great contributions. These old employees, especially those over 40 years old for women and over 50 years old for men, have a heavy burden on the employer because of their old qualifications and relatively high wages, and are easy to become the targets for the employer to dissolve or terminate the labor contract. Due to objective reasons, the employability of old employees is relatively poor. Once unemployed, it is difficult to re-find, and the employment problem of old employees can easily become a social problem. Therefore, the draft proposal should focus on protecting old employees. Others hold an opposing view that the market economy is the survival of the fittest. If the rights and interests of the old workers are excessively protected, it will inevitably affect the employment and development of the younger generation, and appropriate protection is suggested.
????????In order to protect the legitimate rights and interests of the old workers, some draft proposals should clearly stipulate that the employer shall not terminate the labor contract for workers who have reached the age of 45 for women and 55 for men, except as otherwise provided by law and force majeure. Some suggest that the draft should clearly stipulate the conditions for signing an open-ended labor contract. If a worker has worked continuously in an organization for more than 20 years, or if a woman is over 40 years old and a man is over 50 years old, he has the right to ask the employer to sign an open-ended labor contract.
????????Some suggest that in order to protect the legitimate rights and interests of old workers, the draft should stipulate the minimum term of fixed-term labor contracts, and any labor contract shall not be less than the statutory term. At the same time, it is stipulated that the number of times a worker signs a fixed-term labor contract with the same employer shall not exceed a certain number. If the legal number is reached, a non-fixed-term labor contract must be signed.
????????In practice, the layoffs of employers are basically to lay off the old employees who have worked in the unit for a long time, are older and have higher wages, especially those who will sign open-ended labor contracts with employers. Some suggestions, the draft clearly stipulates that it is not allowed to cut old workers with more than 30 years of service.
????????Many people think that under the statutory circumstances stipulated in Article 39 of the draft, it is very good for the employer to pay economic compensation for the dissolution and termination of labor contracts, which is very beneficial to workers, especially old employees. However, many old workers object to the stipulation in the second paragraph of Article 39 of the draft that when calculating economic compensation after termination of labor, the economic compensation will be reduced by 10% every five years of the labor contract, and they think that this is an infringement on the legitimate rights and interests of old workers, which should not be stipulated in reason. According to the provisions of the draft, the longer you work, the less compensation you will get when you terminate the contract. If you work for 30 years, you will get no compensation when you terminate the contract.
????????Some employees of state-owned enterprises reported that some employers intentionally transferred some old employees from one state-owned enterprise to another state-owned enterprise in order to achieve the purpose of not signing a labor contract with workers without fixed term. Because the length of service can no longer be calculated, the labor contract was correspondingly signed from a fixed term to a fixed term, so that the employer can terminate the labor contract before the workers retire. It is suggested that the draft should regulate how to calculate the length of service and the types of labor contracts in the case of malicious transfer.
????????Some suggestions have been made that the draft adds provisions that the state should give certain tax incentives to employers if they use unemployed people who have reached the age of 40 for women and 50 for men. If an employer uses unemployed persons who have reached the age of 45 for women and 55 for men, the social basic insurance originally paid by the employer shall be jointly paid by the local finance.
????????IX. Handling of factual labor relations
????????Paragraph 3 of Article 9 of the draft stipulates that if there is a factual labor relationship, it shall be deemed that the employer and the employee have concluded a labor contract with no fixed term. Article 32 of the draft stipulates that an employer may terminate an open-ended labor contract under three circumstances. Some people think that because the circumstances of the termination of the labor contract in Article 32 of the draft are very vague, the user unit is actually subject to few restrictions when exercising the right to terminate the contract, which is very easy to exploit the loopholes. Therefore, the employer will tend to sign an open-ended labor contract with the employee or deliberately not sign a written labor contract, which is not conducive to the strict implementation of the labor contract stipulated in Article 9 of the draft. It is also not conducive to the original intention of achieving stable labor-employment relations and effectively protecting the legitimate rights and interests of workers. The draft proposal clearly stipulates that if an employer signs an open-ended labor contract with a worker, the employer may not terminate the contract unless there is sufficient evidence to prove that it falls under the circumstances stipulated in Article 31 of the draft.
????????Some people think that the provisions of Article 9 of the draft may make workers deliberately not sign a fixed-term labor contract with the employer in order to sign a non-fixed-term labor contract. It is suggested that the situation of not signing a labor contract in writing be clarified.
????????Some people suggest that in practice, some workers with factual labor relations often have no evidence to prove that they are employees of the employer after a work-related injury, so they cannot be identified as work-related injuries. The draft proposal clearly stipulates that when there is a dispute between the two sides on whether there is a factual labor relationship, the employer shall bear the burden of proof.
????????Some suggestions are that the draft stipulates the starting time of an open-ended labor contract signed due to factual labor relations, and makes it clear that the labor contract will be established from the day when the laborer provides labor for the employer.
????????X. About Labor Dispatch
????????There is a heated discussion on the issue of labor dispatch. Everyone thinks that the labor dispatch market in China is chaotic at present, but there are different views on whether to retain labor dispatch as a form of employment. Some workers suggest canceling the employment form of labor dispatch, believing that labor dispatch is a deformed employment form, which has completely shaken the dominant position of workers in labor relations. Through the form of labor dispatch, the employer avoids risks and responsibilities, and the dispatching unit pursues economic benefits, only the legitimate rights and interests of the dispatched workers can not be guaranteed.
????????More people have suggested that it is unrealistic to completely cancel the dispatch of labor force, but the provisions of the draft on the dispatch of labor force are not rigid enough and restrictive, and it is suggested to impose stricter restrictions on this form of employment. Some suggest to improve the entry threshold of labor dispatch, not only to set the capital conditions of labor dispatch units, but also to stipulate the qualifications of personnel engaged in labor dispatch business. Some suggestions strictly limit the application scope of the form of labor dispatch, which should be limited to hourly workers, seasonal workers or construction contractors. This form of employment should be explicitly prohibited in general industries, and the main types of jobs or positions fixed by employers cannot accept the dispatch of labor. In particular, it is forbidden to transfer rural labor to large foreign-funded enterprises in developed areas in batches to adopt the form of labor dispatch. Some suggestions clarify the time limit of labor dispatch and prohibit employers from using dispatched labor for a long time. Some suggest that the relationship among labor dispatch units, employers and workers should be defined, and it should be clearly stipulated that the agreement between dispatch units and employers can not be against workers. If workers are infringed during the dispatch of labor, dispatch units and employers should bear joint and several liabilities and avoid wrangling with each other. Some suggest strict legal liability, and severe punishment should be given to the behavior of labor dispatching units and employers that shirk each other or maliciously collude against the legitimate rights and interests of workers.
????????Some labor dispatch units think that the stipulation in Article 12 of the draft that labor dispatch units must provide a reserve fund of not less than 5,000 yuan per worker is too harsh, which is a blow to the new thing of labor dispatch, and the existing labor dispatch units, especially the relatively large-scale labor dispatch units, can hardly bear it. Some people think that it is difficult to deposit the reserve fund into the designated bank account, and the mobility of workers in labor dispatch is strong, and the increase and decrease range is large. The reserve fund should be changed accordingly according to the changes of personnel. In this way, not only the dispatching unit needs to be exhausted, but also the labor and social security department is difficult to monitor. Some people think that the amount of the reserve fund is very large, and it is a waste to idle such a large sum of money. At the same time, we must consider how to ensure the safety of this fund.
????????Some dispatching units think that the stipulation that the dispatch contract must be terminated after one year in the draft is unreasonable, and it is suggested that the time limit be abolished. The enterprise is not a public welfare or financial allocation unit, and needs a group of qualified, skilled workers who know the rules and regulations of the employer to engage in production. If the dispatch contract can only be signed for one year, it will not only make the employer have to face the pressure of receiving a large number of novices every year, but also not necessarily beneficial to the workers. Some people think that the duration of the labor dispatch contract should not be a matter of administrative intervention. The provisions of the draft make the labor security department excessively involved between the workers and employers, which will not only make the labor security department overwhelmed, but also can not solve the existing problems well.
????????Some suggest that many labor dispatch units are set up by labor and social security departments, and it is easy to cause problems when they supervise themselves. The draft proposal adds provisions that labor and social security departments, labor inspectors or their families may not set up labor dispatch organizations, and the employment agencies they set up can only carry out job introduction, and may not carry out labor dispatch business, and directly establish labor relations and sign labor contracts with workers.
????????Some report that there are labor agencies and personnel agencies in many places, which are affiliated to the labor security department and the personnel department respectively. Personnel agency continues some practices in the planned economy period, such as receiving college graduates and storing and managing graduate files. Personnel agents can’t provide services for the employment of college graduates, but some personnel agents are engaged in the business of labor dispatch, which is suggested to be banned.
????????Some people think that in practice, there are also forms of labor dispatch in the domestic and tutor industries, but most of them are individuals or families. If the draft recognizes the labor dispatch as a form of employment, it should not exclude the recipients such as individuals or families, and it is suggested that the recipient unit be modified as the recipient.
????????XI. On Non-competition
????????Some people agree with the provisions on non-competition in the draft, and think that more and more confidentiality agreements and non-competition clauses greatly limit the employment scope of technicians after leaving their jobs. Employers often explain that the economic compensation for non-competition has been included in their daily wages when signing the non-competition agreement. The provisions of the draft on compensation for non-competition and the time of payment will not only protect the intellectual property rights and business secrets of the employer, but also help the workers to protect this information on the basis of certain economic conditions.
????????In practice, incidents of workers leaking business secrets of employers have occurred repeatedly, causing great harm to employers. Some employers exaggerate the scope of trade secrets and damage the legitimate rights and interests of workers. Some suggestions, the draft in the provisions of non-competition restrictions at the same time, increase the provisions of the employer and the employee in the labor contract, the employee has the obligation to keep business secrets, and can stipulate the corresponding liability for breach of contract. The labor contract law should reasonably define the specific scope of trade secrets.
????????Some people have suggested that the employees in some national defense scientific research units are also involved in the issue of non-competition, but the technical secrets involved by these employees are hardly business secrets and should belong to state secrets. Although the national defense scientific research institutions have stipulated the confidentiality responsibility of the secret-related personnel and the release period after leaving the post, it is difficult to restrict the violations. The non-competition clause in the draft proposal is also applicable to workers involved in state secrets.
????????XII. About Equal Pay for Equal Work
????????Many people reflect that there are many forms of employment in many enterprises, and workers with different identities have great differences in treatment, even though they are engaged in the same job. Different pay for equal work is the most disharmonious factor in labor relations, which not only damages the rights and interests of workers, but also damages the interests of the country and the image of the government. The draft proposal clearly stipulates the principle of equal pay for equal work.
????????Some reflect that their units still implement a variety of employment systems, such as state-owned workers, collective workers, state-owned contract workers, collective contract workers, temporary workers, temporary agency workers and so on. Among them, collective workers have low income, often work overtime, have no overtime pay, engage in toxic and heavy-duty jobs, and do not distribute labor insurance supplies, etc., which seriously violates the labor law and the labor rights and interests of collective workers are not guaranteed.
Some reflect that some employers have stipulated various forms of employment, such as regular workers, hired workers, seconded workers, temporary workers, promoters, shopping guides, consultants, etc. Different forms of employment have relatively different wages, artificially creating unfair factors and infringing on the rights and interests of workers in distribution according to work and equal pay for equal work.
????????Some report that in some monopoly industries such as electric power, tobacco, telecommunications, banks, etc., the front-line salespersons in their business halls are almost all temporary workers. Their workload is larger than that of formal workers, but their wages are only one-third or even one-tenth of that of formal workers, and their work is still very unstable. In some postal enterprises, most of the heavy jobs such as mail delivery staff are temporary workers. Even the editors and reporters of some TV stations and newspapers are divided into three or six grades, and quite a few of them are inferior secondments and laborers. The existence of a large number of temporary workers has caused the unreasonable phenomenon of different pay for equal work, and the draft proposal cancels the temporary employment form.
????????Some suggest that the proliferation of labor dispatch is also an important reason for different pay for equal work. In some labor dispatch, the dispatched workers do more than the regular employees of the employing unit, but they get only one-fifth or one-third of the salary of the regular employees, so they should be careful in their work, otherwise they may be dismissed at any time. It is suggested that Article 12 of the draft be amended to read: The wages and various welfare benefits enjoyed by the dispatched workers when providing labor shall be no less than those of the regular employees of the labor service receiving unit.
????????Some suggest that in some state-owned enterprises, men and women have different pay for equal work. Male and female employees enter the company on the same day, and their retirement wages are different because of different retirement age regulations. The draft proposal regulates this unreasonable situation.
????????Thirteen, about serious violations of rules and regulations, the employer may terminate the labor contract.
????????Many people pointed out that the provision in the draft that the employer can terminate the labor contract if the laborer seriously violates the rules and regulations of the employer is very easy to be used maliciously by the employer. It is suggested that it should be carefully considered and some restrictive conditions should be stipulated for the employer to use the rules and regulations to terminate the labor contract.
????????Some people think that item (2) of Article 31 of the draft is basically the same as item (2) of Article 25 of the Labor Law, which has caused many labor disputes in practice. Some employers not only want to terminate the labor contract, but also don’t want to bear the responsibility of economic compensation to the workers, so they try their best to make conditions by formulating rules and regulations, so that the workers are dismissed as serious violations of the rules and regulations of the employer if they make a slight mistake.
????????Some people think that the meaning of "serious violation" is unclear, and whether the laborer is ten minutes late is a serious violation of the rules and regulations of the employer. The draft proposal can make further provisions on "serious violation".
????????Some have suggested that if the rules and regulations of the employer are overlord clauses, whether the workers should still abide by them. It is suggested to limit the rules and regulations in this item, which must be legal and reasonable. In order to ensure that the rules and regulations can be legal and reasonable, the draft proposal can clearly stipulate the rules and regulations of the employer, which must be discussed and approved by the trade union or the workers’ congress and reported to the local labor and social security department for examination and filing before it becomes effective.
????????XIV. Restrictions on layoffs
????????Article 20 of the Labor Law stipulates that as long as an employer lays off employees, it must explain the situation to the trade union or all employees 30 days in advance, listen to opinions and report to the competent department of labor security. Some people think that in Article 33 of the draft, the employer will explain the situation to the trade union or all employees only when it has laid off more than 50 employees, and the provision of consultation is different from that in the labor law, which not only narrows the scope for the employer to explain the situation to the trade union or all employees, but also simplifies the procedures for the employer to lay off employees, cancels the requirement of 30 days in advance, and suggests that the draft should be adjusted.
????????Article 21 of the Trade Union Law stipulates that if an enterprise infringes on the labor rights and interests of employees, the trade union may put forward opinions and coordinate the handling; The trade union should give support and help to the workers who bring a lawsuit to the people’s court. Some people think that the provisions of the first paragraph of Article 33 of the draft are in conflict with the trade union law. According to the provisions of the trade union law, workers are laid off, which belongs to the situation that the rights and interests of employees are damaged, and the trade union has the obligation to provide support and help. When the number of laid-off workers is smaller, the more vulnerable they are, and the more they need the assistance of trade unions. It is suggested that the employer should lay off employees, even if only one person is laid off, it must be checked by the trade union and reached an agreement through consultation with the trade union.
????????Some people think that the draft relaxes the conditions for employers to lay off employees, and the provision that "objective conditions have changed significantly" is too broad, such as changes in production conditions, changes in sales conditions, changes in labor safety and health conditions, major technological transformation, enterprise production change, merger and division, etc., all of which belong to major changes in objective conditions. Therefore, employers are prone to abuse the provisions on layoffs and infringe on workers’ employment rights. The draft proposal should clearly stipulate that employers should not lay off employees at will, only in the face of bankruptcy.
????????Some people think that under the modern enterprise system, it is unnecessary for the employer to reduce a small number of incompetent personnel, if it must be explained to all employees, because the procedures are too cumbersome.
????????Fifteen, about the employer shall not terminate the labor contract.
????????Article 34 (1) of the draft stipulates that if an employer suffers from an occupational disease or is injured on the job and is considered to have lost or partially lost the ability to work, the employer shall not terminate the labor contract. Some people pointed out that the work-related injury insurance regulations clearly stipulate the handling of work-related injuries, and they are very operable. For some workers who have lost their ability to work, the work-related injury insurance regulations allow workers to terminate their labor contracts with employers through consultation. The provisions of the draft are inconsistent with the provisions of the industrial injury insurance regulations. In order to avoid ambiguity, it is suggested to delete this paragraph or make corresponding adjustments.
????????Article 34 (3) of the draft stipulates that if a female employee is pregnant, giving birth or breastfeeding, the employer shall not terminate the labor contract. Some people think that it is not enough that the draft only stipulates that the employer may not terminate the labor contract. In practice, some employers force female employees to resign themselves by means of not approving holidays, and some employers arbitrarily adjust the positions of female employees during pregnancy, childbirth and lactation. The draft proposal makes further provisions.
????????Some suggest that it is unreasonable for female employees to have illegal or serious disciplinary behaviors during pregnancy, childbirth and breastfeeding, such as unplanned childbirth or illegitimate childbirth, if they are not allowed to terminate the labor contract.
????????Article 34 (4) of the draft stipulates that the employer shall not terminate the labor contract if it is acting as an equal negotiation representative. Some people think that what is equal consultation representative should be made clear. Some reflect that many employers generally crowd out, pressure or even dismiss workers’ representatives after labor disputes have subsided. In order to prevent employers from settling accounts after autumn, the draft proposal stipulates a reasonable period for the protection of equal consultation representatives. Some people think that not only equal consultation representatives need protection, but also trade union chairmen and trade union members who are in office should be protected.
????????Sixteen, about the termination of the labor contract to give economic compensation.
????????Article 37, paragraph 1, of the draft stipulates the termination of the labor contract. Article 39, paragraph 1 (3), stipulates that if the labor contract is terminated, the employer shall pay economic compensation in addition to the fact that the employee has started to enjoy the basic old-age insurance benefits according to law. Most people agree with the above provisions of the draft, and think that it is a great protection for the rights and interests of workers, which effectively restricts the employer’s behavior of dismissing workers at will by using short-term contracts, and is one of the highlights of the draft. Some people have expressed different views on the specific content.
????????Some people think that, first of all, it is necessary to find out why the employer should pay economic compensation when terminating the labor contract. Without a clear understanding of the nature of economic compensation, it is impossible to talk about the rationality of economic compensation. If the employee has worked in the employer for 20 years and has not reached the retirement age, the employer will make compensation after terminating his labor contract. Is this economic compensation recognition of the employee’s contribution, relief compensation for the employee after unemployment, or compensation for the enterprise’s breach of contract? In the process of revision, the draft proposal is made clear.
????????Some suggest that it is debatable whether economic compensation should be paid when the labor contract is terminated. The reform of the labor system is to change the situation that the planned economy used people to die, so that workers can enter and leave, and managers can go up and down. The termination of the labor contract means the termination of the rights and obligations of both parties to the labor contract. The termination of the labor contract also requires the employer to pay economic compensation. First, it is unfair. Second, it restricts the reasonable flow of labor to some extent. Third, it is overprotective, which may cause some workers to be less motivated.
????????Some people suggest that the provisions of the draft on the payment of economic compensation by the employer at the termination of the labor contract go beyond the provisions of Article 28 of the Labor Law and should be revised.
????????Some people think that when the labor contract expires and terminates, the employer should not bear the liquidated damages. This rule is like a rope around the neck of the employer. If the employer has 50 employees, each with a monthly salary of 1,600 yuan, and the contract is signed every two years, the employer will bear 160,000 economic compensation every two years, which is fatal to small-profit enterprises.
????????Some people suggest that if a worker dies, or if the people’s court declares him dead or missing, he should enjoy death treatment according to law, including funeral expenses, one-time pension and survivors’ allowance, and the employer should not pay economic compensation. It is suggested to delete the relevant provisions in the draft.
????????Seventeen, about the labor contract dispute handling procedures.
????????Some people think that the draft regulations on the conclusion, performance and termination of labor contracts are very complete, but the procedures for handling labor contract disputes are too simple in principle. Article 50 of the draft stipulates that the procedures for handling disputes over labor contracts and collective contracts shall be implemented in accordance with the provisions of the Labor Law and other relevant laws and administrative regulations. Some suggestions make special provisions on the procedures for handling labor contract disputes.
????????Some people think that according to the labor law and other relevant regulations, it takes 60 days for workers to apply for an arbitration award and 60 days to bring a lawsuit in court. This kind of labor contract dispute handling procedure is costly, time-consuming, costly and laborious, and workers generally can’t bear this kind of cost. The relevant handling procedures often fail to play their due role in ensuring the settlement of labor contract disputes. Therefore, the draft proposal refines and improves the provisions of labor contract dispute handling procedures. For example, it is stipulated to shorten the time limit of labor arbitration award, clarify the compulsory execution power of the labor administrative department to a certain extent, and give workers the right to apply to the people’s court for prior execution and compulsory execution, so as to achieve the purpose of timely and reasonable settlement of labor disputes and effectively protect the legitimate rights and interests of workers to get timely, sufficient and effective relief.
????????Some people point out that labor contracts are different from ordinary civil contracts, which are directly related to the survival rights and security of workers, and workers, as employees belonging to units, often have many tangible or intangible obstacles in exercising their rights. In this case, it is obviously unreasonable to set too strict limitation on the exercise of their rights. The draft proposal tries to avoid setting too many thresholds for workers’ rights protection. While stipulating that the limitation period for workers to revoke their labor contract rights is one year, the provisions in the Labor Law on filing an application for labor arbitration within 60 days are amended and appropriately extended.
????????Eighteen, about supervision and inspection
????????Many people think that no matter how good the provisions of the draft are, everything will be empty unless they are implemented. At present, labor law enforcement is relatively poor, so the draft must make corresponding provisions on strengthening labor law enforcement. Many people put forward many suggestions on how to strengthen labor law enforcement. Some people think that there are many reasons for the current ineffective labor law enforcement, mainly due to the lack of penalties related to labor laws and regulations, poor law enforcement environment, too much administrative intervention, and low quality of law enforcement personnel. The draft proposal gives the competent department of labor security more administrative power to improve the quality of labor law enforcement personnel and improve the shortage of labor inspectors.
????????Some suggestions, on the one hand, should strengthen the enforcement of labor security departments, on the other hand, should strengthen the enforcement of judicial departments, and take necessary judicial enforcement measures against employers who repeatedly violate laws and regulations on labor contracts.
????????Some people think that the scope of supervision and management by the competent department of labor security should be increased, and the mechanism of pre-intervention in labor contracts should be established. The draft should clearly stipulate that the labor contract concluded according to law must be registered or put on record by the competent department of labor security, and the rules and regulations of the relevant employer shall be submitted for examination as an annex to the labor contract.
????????Some draft proposals give labor inspection departments the right to suggest to the competent unit that the person responsible for the violation of the law by the employer should be punished by party discipline and political discipline.
????????Some suggest that labor security should be included in the assessment system of party and government departments at all levels. Like family planning and safety, one-vote veto should be implemented. The implementation of labor security directly plays a decisive role in the assessment, appointment and promotion of relevant personnel.
????????Some people think that Article 49 of the draft stipulates that any organization or individual has the right to report violations of this Law. It is suggested that the time limit for the competent department of labor and social security to handle reports should be specified, so that the department of labor and social security can handle reports in a timely manner and inform the whistleblower of the results in a timely manner. Some also suggested to increase the obligation of the competent labor and social security department to keep confidential the whistleblower, and correspondingly stipulate the legal responsibility for not complying with the confidentiality provisions. Some suggest that the competent department of labor security should announce the telephone number or other contact information of labor supervision complaints to the public.
????????XIX. About Legal Liability
????????For the legal liability part of the draft, the masses generally reflected that the provisions were incomplete and suggested making adjustments. Some people think that it is not enough to investigate the legal responsibility of the employer only in the draft, and suggest that the legal representative and responsible person of the employer who violates the draft should also be punished.
????????Some people think that to strengthen labor law enforcement, it is necessary to supervise the law enforcement behavior of the competent department of labor security. The draft does not clearly stipulate the legal responsibilities that the labor security department should bear if it fails to perform its legal obligations, and it does not stipulate that workers can file state compensation when the labor rights and interests are damaged due to the inaction of the labor security department, which lays the groundwork for the labor security department to shirk its responsibilities and makes the draft may become a piece of waste paper full of rights. It is suggested to increase the corresponding legal responsibilities of the labor security department.
????????Some people are disappointed that the draft does not stipulate the legal responsibility of the employer who does not sign a written labor contract. They think that this will directly affect the signing rate of a written labor contract, and suggest adding provisions that can directly punish the employer for not signing a written labor contract.
????????Some suggestions, the draft adds that if the labor contract is invalid or partially invalid due to the employer’s reasons, the competent department of labor and social security shall order it to make corrections, and if it causes damage to the workers, the employer shall be liable for compensation.
????????Some suggestions suggest that if the employee terminates the labor contract according to law and the employer detains the employee’s files or other documents and articles without justifiable reasons, the employer shall be investigated for legal responsibility in accordance with the provisions of Article 54 of the draft.
????????Some suggestions, add provisions to force workers to extend working hours, damage the physical and mental health of workers; To impose economic penalties on workers in violation of the law, and investigate the legal responsibility of the employer.
????????Some suggestions suggest that if the employer fails to pay the social insurance premium for the employee according to law, in addition to giving the employee the right to terminate the labor contract, the draft should add a stipulation that the employer must pay the social insurance premium and bear the losses caused to the employee.
????????Some people think that the draft does not provide penalties for the misappropriation of insurance benefits paid by workers. It is suggested that if the employer misappropriates insurance benefits paid by workers, the legal responsibility of the person in charge of the employer shall be investigated and the local government shall handle the aftermath.
????????Where the employing unit stipulated in Article 54 of the draft illegally requires the laborer to provide guarantee, collect property from the laborer or seize identity cards and other documents, the competent department of labor security shall order it to be returned and impose a fine of more than 2,000 yuan for each laborer. Some people think that in accordance with the provisions of Article 16 of the Resident Identity Card Law, anyone who illegally seizes another person’s resident identity card shall be given a warning by the public security organ and fined by 200 yuan. Article 54 of the proposed draft is linked with the provisions of Article 16 of the Resident Identity Card Law.
????????Some suggestions suggest that the person in charge of the employer should be punished with criminal punishment, because the malicious wage arrears endanger the survival of workers and belong to infringement of other people’s property and intentional injury.
????????Twenty, about the employer in the individual contract management.
????????Article 63 of the draft stipulates that if an individual contracts for business operations to recruit workers, the individual or organization contracting out the contract shall be the employer of the workers. Some people think that "the individual who contracts the contract" in this article is contradictory to the provisions of Article 2 of the draft. According to the provisions of Article 2 of the draft, only enterprises, individual economic organizations and private non-enterprise organizations can be used as employers in labor relations, and individuals cannot be used as employers. It is suggested to delete the provisions on individuals in this article.
????????Some people suggest that the draft does not clearly define what is the relationship between individual contractors and workers, whether it is labor relations or labour relation. Because there are great differences between labor relations and labour relation in the identification of work-related injuries, labor security, labor supervision and so on, the draft proposal should be clearly defined. Some reflect that it is very common for individual contractors to recruit workers in rural areas, and the relationship between individual contractors and workers should be judged by the court, rather than supervised and managed by the labor inspection department.
????????It is suggested that the draft should make it clear that individual contractors, as actual operators, should bear the responsibilities of the employer to the workers, and have the obligation to pay the relevant compensation in advance, and the employer should bear joint liability.
????????Some suggest that due to the stricter norms of labor dispatch in the draft, some labor dispatch units and employers are prepared to give up this form of labor dispatch, and adopt the form of project contracting to evade the provisions of the draft on labor dispatch, and use the provisions of Article 63 of the draft to evade the corresponding legal responsibilities. It is suggested that legislation should be made to plug this loophole.
????????Some people think that in practice, there are many ways for individual contractors to recruit workers. In order to prevent some people from taking advantage of the loopholes in the law, it is suggested to clearly list the situations in which individual contractors recruit workers, including those who rent counters, lease operators and affiliated operators.
????????(Provided by the National People’s Congress Standing Committee (NPCSC) Legal Affairs Committee)
