(A) the law itself is flawed. As far as the labor contract law itself is concerned, some clauses are too principled and unclear, and some clauses have defects or loopholes. For example, most enterprises reflect that the Labor Contract Law only pays attention to protecting the rights of workers, but ignores the rights of enterprises and the obligations of workers. Although some workers have signed labor contracts with enterprises, due to the influence of wages and other benefits, they just leave. In this case, the labor contract law has no restrictions and penalties for workers, and enterprises have no way to deal with it. For another example, Article 12 of the Labor Contract Law stipulates that labor contracts are divided into fixed-term labor contracts, non-fixed-term labor contracts and labor contracts with the completion of certain tasks as the deadline. The employer and the employee may conclude a labor contract within the time limit of completing certain tasks. For the first two kinds of contracts, the Labor Contract Law gives comprehensive and powerful protection, but for labor contracts with the completion of certain tasks as the deadline, the legal protection is insufficient. "Labor Contract Law" does not specify the scope and standard of application of "a labor contract whose term is to complete a certain task", which is likely to lead to the abuse of this contract form in practice and become a safe haven for employers to avoid economic compensation. If the employer and the employee sign a "labor contract to complete a certain task", not only do they not need to pay economic compensation when they terminate the contract, but they also don't have to worry about the employee's request to sign an open-ended labor contract, which greatly reduces the labor cost. For another example, the provisions of the Labor Contract Law on open-ended labor contracts are also controversial. Article 14 (2) (3) of the Labor Contract Law stipulates that if two fixed-term labor contracts are concluded in succession, and the employee does not meet the circumstances stipulated in Articles 39 and 40 (1) and (2) of this Law, if the employee proposes or agrees to renew the conclusion of the labor contract, an open-ended labor contract shall be concluded unless the employee proposes to conclude a fixed-term labor contract. According to this regulation, workers sign fixed-term labor contracts twice in a row under the conditions of obeying the law, working hard and being competent. If they want to sign an open-ended labor contract with the employer, the employer must sign an open-ended labor contract. However, this provision has produced the opposite effect in practice. Employers are generally extremely reluctant to sign open-ended labor contracts with ordinary workers. Under the premise of rigid legal constraints, they will try their best to avoid and reduce the second fixed-term labor contract, which will make the clause unqualified and lead to a shorter labor contract term.
(2) Some employers and workers lack legal knowledge. From the perspective of enterprises, some enterprises have evaded the labor contract law. Some enterprises with irregular management have always equated the illegal costs of social insurance and other incomplete performance with the new production costs of enterprises, believing that the promulgation and implementation of the labor contract law has increased the costs of enterprises, so they hold a negative and evasive attitude towards the implementation of the law. Some enterprises have a strong reaction to open-ended contracts, thinking that signing open-ended contracts is tantamount to giving employees an "iron rice bowl", shifting the labor security costs to enterprises, increasing the employment costs of enterprises and limiting the autonomy of enterprises in employment. As a result, "Huawei Gate" and "Wal-Mart Resignation" and other "layoffs" or "re-competition for posts" have appeared in some places. Even if some enterprises sign labor contracts with employees, they are not standardized enough. The terms of the contract are simple and empty, and issues involving the immediate interests of employees, such as working hours, overtime pay, welfare benefits, etc., are not included or stated in detail. From the perspective of workers, some workers are also relatively indifferent to the Labor Contract Law. It is generally believed that the labor contract law attempts to achieve stable labor relations by protecting workers. However, there is no positive response from workers in the implementation process. Some workers are reluctant to sign labor contracts, thinking that signing labor contracts will affect the free flow and "bind" their hands and feet. In particular, some middle and high-level managers and high-tech personnel believe that signing labor contracts (especially long-term contracts) will affect their development to a higher level and is not conducive to free employment. Among a considerable number of migrant workers, most of them think that they are idle at work and busy farming, so they can't come and go freely after signing labor contracts.
(3) The signing and performance rate of labor contracts in some industries is low. A survey in Wenling City shows that the signing rate of labor contracts in some industries is low, especially in small and medium-sized private enterprises and labor-intensive enterprises. Most of these enterprises are small in scale and flexible in employment, and there are weak links in enterprise employment management and government supervision. They are used to the traditional way of employment, and their awareness of signing labor contracts is weak. Many small and medium-sized enterprises do not have institutions and personnel specialized in labor management, lack labor rules and regulations, and some enterprises produce while building, which makes it difficult to sign and perform labor contracts. Some special industries and groups, such as agents, promoters, part-time, multiple labor relations and other forms of employment coexist, which leads to unclear employment subjects and unclear relations, and also affects the signing of labor contracts. The author also noticed that many people left the same company within one month due to the high mobility of personnel in service industries such as catering, entertainment and tourism, and it is difficult to standardize the signing of labor contracts.
(D) labor supervision and law enforcement power is insufficient. With the implementation of the labor contract law, workers' awareness of safeguarding rights according to law has increased, and labor dispute cases have also increased greatly. In this situation, the responsibility of the labor inspection department is becoming more and more important, which is also an important guarantee for the real implementation of the labor contract law. However, judging from the current labor inspection departments at all levels, the supervision network is not perfect enough, and the law enforcement power is generally insufficient. According to the survey in Wenling City, there are more than 1000 enterprises supervised by each supervisor at the city and town (street) levels, and the proportion of supervisors serving employees is more than tens of thousands. Neither institutions nor personnel can meet the needs of work, and it is difficult to implement effective supervision. Due to the lack of supervision power, the supervision power is directly softened, which leads to a more common phenomenon: employers do not sign labor contracts for employees, and no one is held accountable; Illegal employment and other issues that harm the rights and interests of workers have not received the attention of relevant departments; Did not pay social insurance for employees, and did not punish anyone according to the Labor Contract Law and Social Insurance Regulations. The existence of these problems has greatly reduced the actual implementation effect of this law and failed to play its due role.
(E) The relevant supporting system is not perfect. For example, in terms of social insurance, although the labor contract law has further strengthened the social insurance system, the current social insurance system is not perfect enough to be transferred freely across regions. When workers move across regions, they can only take the personal part, but not the part paid by the employer, which affects the enthusiasm of workers to participate in insurance and makes the legislative intention of the labor contract law fail. Another example is that the supporting systems such as labor protection and annual leave are not perfect, which affects the signing and performance of labor contracts. Although the Regulations on the Implementation of the Labor Contract Law promulgated by the State Council last year clarified some provisions, there are still some provisions that need to be further clarified. For another example, the Labor Contract Law and the Trade Union Law need further convergence. In practice, it is difficult for grass-roots trade unions to effectively organize and represent employees and employers for equal consultation and dialogue. Trade unions in some enterprises, especially private enterprises, rarely really play a role, because trade union leaders are employed by business owners, which leads to problems such as illegal employment in some enterprises that harm the rights and interests of workers.
(VI) The current financial crisis has brought new challenges to the implementation of the Labor Contract Law. Since June 5438+ 10 last year, the financial crisis has spread rapidly around the world and deeply affected China, resulting in increased downward pressure on the domestic economy, intensified business difficulties, increased loss-making enterprises and loss-making industries, and a substantial increase in the number of closed enterprises; The number of new jobs in cities and towns has decreased, some enterprises have laid off employees, and some enterprises have taken early or long-term vacations, although they do not lay off employees. With the increase of laid-off migrant workers and returnees, the employment problem of college graduates is outstanding, which makes the labor contract law face severe challenges in the first year of implementation. As far as enterprises are concerned, due to operational difficulties, the situation of unpaid wages of enterprises has increased, and it is more difficult to pay social insurance premiums in full. In some places, the phenomenon of unpaid wages of business owners has also appeared. As far as workers are concerned, due to the reduction of jobs, job competition is more intense. Many employees know that business owners have violated the labor contract law, and they can only swallow their words, fearing that they will lose their jobs and their lives will be difficult to maintain. This is a serious problem in the implementation of the current Labor Contract Law.