The General Office of the National People's Congress Standing Committee (NPCSC) held a press conference at 4pm on June 29th, inviting the person in charge of the Law Commission of the National People's Congress Standing Committee (NPCSC) to answer questions from Chinese and foreign journalists on the Labor Contract Law. Here is a brief introduction to the main contents of the Labor Contract Law.
First, about the purpose of legislation.
Improve the labor contract system, clarify the rights and obligations of both parties to the labor contract, protect the legitimate rights and interests of workers, and build and develop harmonious and stable labor relations.
Second, about the scope of adjustment.
This Law is applicable to enterprises, individual economic organizations, private non-enterprise units and other organizations (hereinafter referred to as employers) in People's Republic of China (PRC) to establish labor relations with workers and conclude, perform, modify, dissolve or terminate labor contracts.
State organs, institutions, social organizations and laborers who have established labor relations with them shall conclude, perform, modify, dissolve or terminate labor contracts in accordance with this Law.
At the same time, supplementary provisions: if there are other provisions in laws, administrative regulations or the State Council, such provisions shall prevail in the conclusion, performance, alteration, dissolution or termination of labor contracts between institutions and staff members who implement the employment system; If there are no provisions, the relevant provisions of this law shall prevail.
Third, about rules and regulations.
The employing unit shall establish and improve the labor rules and regulations according to law, so as to ensure that workers enjoy labor rights and perform labor obligations. When an employing unit formulates, modifies or decides the rules and regulations or major issues directly related to the vital interests of workers, such as labor remuneration, working hours, rest and vacation, labor safety and hygiene, insurance and welfare, employee training, labor discipline and labor quota management, it shall discuss with the workers' congress or all employees, put forward plans and opinions, and negotiate with trade unions or employee representatives on an equal footing. In the process of implementing rules and regulations and major issues, trade unions or employees have the right to propose to the employer and revise and improve them through consultation. The employing unit shall publicize or inform the rules and regulations and major issues directly related to the vital interests of workers.
Four, on the establishment of labor contract relationship and conclude a written labor contract.
The employer shall establish a labor relationship with the employee from the date of employment. To establish labor relations, a written labor contract shall be concluded. The conclusion of a labor contract shall follow the principles of legality, fairness, equality, voluntariness, consensus through consultation and good faith. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the employer and the employee conclude a labor contract before employment, the labor relationship shall be established from the date of employment. Employers and workers may conclude fixed-term labor contracts, non-fixed-term labor contracts and labor contracts with the completion of certain tasks as the term.
A labor contract shall have the following clauses: (1) the name, domicile and legal representative or principal responsible person of the employing unit; (2) The name and address of the laborer and the number of the resident identity card or other valid identity documents; (3) The term of the labor contract; (4) Work content and work place; (five) working hours and rest and vacation; (6) Labor remuneration; (7) Social insurance; (eight) labor protection, working conditions and occupational hazard protection; (nine) other matters that should be included in the labor contract as stipulated by laws and regulations. In addition, the employer and the employee can agree on probation, training, confidentiality, supplementary insurance and welfare benefits. At the same time, it is stipulated in the legal responsibility that if the employer fails to conclude a written labor contract with the employee for more than one month from the date of employment, it shall pay the employee twice the monthly salary.
Verb (abbreviation of verb) on open-ended labor contract
The employer and the employee may conclude an open-ended labor contract through consultation. Under any of the following circumstances, if the 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 employee has worked in the employer 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 has not renewed the labor contract under the circumstances specified in Items 1 and 2 of Article 39 and Article 40 of this Law.
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. At the same time, it is stipulated in the legal liability that if the employer violates the provisions of this law and fails to conclude an open-ended labor contract with the employee, it shall pay the employee twice the monthly salary from the date when the open-ended labor contract should be concluded.
Six, about the probation period
If the term of the labor contract is more than three months but less than one year, the probation period shall not exceed one month; If the term of the labor contract is more than one year but less than three years, the probation period shall not exceed two months; The probation period of a labor contract with a fixed term of more than three years or without a fixed term shall not exceed six months. The same employer and the same worker can only agree on a probation period. A probation period may not be stipulated in a labor contract whose term is to complete certain tasks or whose term is less than three months.
The probation period is included in the labor contract. If the labor contract only stipulates the probation period, the probation period is not established, and this period is the term of the labor contract. The employee's salary during the probation period shall not be less than 80% of the minimum wage of the same position in the unit or the wage agreed in the labor contract, and shall not be less than the minimum wage standard in the place where the employer is located.
During the probation period, the employer shall not terminate the labor contract except that the employee does not meet the employment conditions, violates the rules and regulations and is incompetent. If the employer terminates the labor contract during the probation period, it shall explain the reasons to the employee. At the same time, it is stipulated in the legal responsibility that if the employer violates the provisions of this law and agrees with the employee on a probation period, the labor administrative department shall order it to make corrections; If the probation period agreed in violation of the law has been completed, the employer shall pay compensation to the employee based on the monthly salary of the employee after the expiration of the probation period and according to the time limit that has been fulfilled outside the statutory probation period.
Seven, about the performance of the labor contract
The employer and the employee shall fully perform their respective obligations in accordance with the provisions of the labor contract. The employing unit shall, in accordance with the labor contract and state regulations, pay the laborers' labor remuneration in full and on time. If the employer is in arrears or fails to pay the labor remuneration in full, the employee may apply to the local people's court for a payment order according to law; The people's court shall issue a payment order according to law.
The employing unit shall strictly implement the labor quota standard, and shall not force or force workers to work overtime in disguised form. Where the employing unit arranges overtime work, it shall pay overtime wages to the workers in accordance with the relevant provisions of the state. Workers who refuse to command or force the management personnel of the employer to take risks in violation of regulations shall not be regarded as violating the labor contract.
Laborers have the right to criticize, report and accuse the employer of working conditions that endanger life safety and health. The state takes measures to establish and improve the system of trans-regional transfer and connection of employees' social insurance relations.
Eight, about the laborer can terminate the labor contract.
The employer and the employee may terminate the labor contract through consultation. The employee may terminate the labor contract by giving a written notice to the employer 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probation period.
If the employing unit has any of the following circumstances, the employee may terminate the labor contract: (1) Failing to provide labor protection or working conditions as agreed in the labor contract; (2) Failing to pay labor remuneration in full and on time; (3) Failing to pay social insurance premiums for laborers according to law; (4) The rules and regulations of the employing unit violate the provisions of laws and regulations and damage the legitimate rights and interests of workers; (five) the labor contract is invalid due to the fault of the employer; (6) Other circumstances under which the laborer can terminate the labor contract as stipulated by laws and administrative regulations.
If the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or if the employer illegally directs or forces the risky operation to endanger the personal safety of the laborer, the laborer may immediately terminate the labor contract without notifying the employer in advance.
Nine, about the employer can terminate the labor contract.
The employer and the employee may terminate the labor contract through consultation. The employer may terminate the labor contract if the employee is under any of the following circumstances: (1) The employee is proved to be unqualified for employment during the probation period; (two) a serious violation of the rules and regulations of the employer; (three) serious dereliction of duty, corruption, causing great damage to the employer; (4) The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the unit, or the employer refuses to correct it; (five) the labor contract is invalid due to the fault of the laborer; (6) Being investigated for criminal responsibility according to law.
Under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an extra month's salary: (1) The employee is sick or injured non-work-related, and cannot engage in the original job or other jobs arranged by the employer after the prescribed medical treatment period expires; (two) the laborer is not competent for the job, and he is still not competent for the job after training or adjusting his post; (3) The objective conditions on which the labor contract was concluded have changed greatly, which makes it impossible to perform the labor contract, and the employer and the employee cannot reach an agreement on changing the contents of the labor contract through consultation.
X. About economic layoffs
Under any of the following circumstances, if it is really necessary to lay off more than 20 employees or less than 20 employees, but it accounts for more than 10% of the total number of employees in the enterprise, the employing unit shall explain the situation to the trade union or all employees 30 days in advance, and after listening to the opinions of the trade union or employees and reporting to the labor administrative department, it can implement the layoff plan: (1) carry out rectification in accordance with the provisions of the enterprise bankruptcy law; (two) serious difficulties in production and operation; (three) the enterprise has changed production, major technological innovation or adjustment of business mode, and it still needs to reduce staff after changing the labor contract; (4) Other major changes have taken place in the objective economic situation on which the labor contract was concluded, which makes it impossible to perform the labor contract.
When downsizing, priority should be given to retaining the following workers: (1) concluding a long-term fixed-term labor contract with the unit; (2) Concluding an open-ended labor contract with the unit; (3) there are no other employees in the family, and there are elderly people or minors who need to support them. If the employing unit reduces its staff according to law and recruits again within six months, it shall notify the retrenched staff and give priority to recruiting the retrenched staff under the same conditions.
XI。 On collective contract
On the one hand, enterprise employees and employers can conclude collective contracts on labor remuneration, working hours, rest and vacation, labor safety and health, insurance and welfare through equal consultation. The draft collective contract shall be submitted to the workers' congress or all the workers for discussion and adoption. The collective contract shall be signed by the trade union on behalf of the employees of the enterprise and the employer; Where a trade union has not been established, the superior trade union shall guide the representatives elected by the employees to conclude with the employer.
Enterprise employees and employers can conclude special collective contracts on labor safety and health, protection of women employees' rights and interests, and wage adjustment mechanism. In areas below the county level, trade unions and business representatives may conclude industrial collective contracts or regional collective contracts in industries such as construction, mining and catering services.
After the conclusion of a collective contract, it shall be submitted to the labor administrative department; If the labor administrative department does not raise any objection within fifteen days from the date of receiving the text of the collective contract, the collective contract will take effect. Collective contracts signed according to law are binding on employers and workers. Industrial and regional collective contracts are binding on local employers and workers in this industry and region.
Twelve. About trade unions
The labor administrative department of the people's government at or above the county level shall, jointly with representatives of trade unions and enterprises, establish and improve a tripartite mechanism for coordinating labor relations and jointly study and solve major problems in labor relations. Trade unions shall help and guide laborers to conclude and perform labor contracts with employers according to law, and establish a collective consultation mechanism with employers to safeguard the legitimate rights and interests of laborers.
If the employer violates the collective contract and infringes on the labor rights and interests of employees, the trade union may require the employer to bear the responsibility according to law; Disputes arising from the performance of the collective contract cannot be resolved through consultation, and the trade union may apply for arbitration or bring a lawsuit according to law. Trade unions shall safeguard the legitimate rights and interests of workers in accordance with the law and supervise employers to perform labor contracts and collective contracts. If the employer violates labor laws and regulations, labor contracts and collective contracts, the trade union has the right to put forward opinions or ask for corrections; If a laborer applies for arbitration or brings a lawsuit, the trade union shall give support and help according to law.
Thirteen. About labor dispatch
Labor dispatch units shall be established in accordance with the relevant provisions of the Company Law, with a registered capital of not less than 500,000 yuan. The labor dispatch unit is the employing unit referred to in this Law and shall fulfill the obligations of the employing unit to the laborers. The labor contract concluded between the labor dispatch unit and the dispatched worker shall not only specify the matters specified in Article 17 of this Law, but also specify the employing unit, dispatch period and post of the dispatched worker.
The labor dispatch unit shall conclude a fixed-term labor contract with the dispatched workers for more than two years, and pay the labor remuneration monthly; During the period when the dispatched workers are not working, the labor dispatch unit shall pay the labor remuneration monthly according to the minimum wage standard stipulated by the local people's government. The labor dispatch unit shall inform the dispatched workers of the contents of the labor dispatch agreement. The labor dispatch unit shall not deduct the labor remuneration paid by the employing unit to the dispatched workers according to the labor dispatch agreement. Labor dispatch units and employing units shall not charge the dispatched workers.
The employing unit shall perform the following obligations: (1) to implement the national labor standards and provide corresponding working conditions and labor protection; (2) Informing the dispatched workers of their job requirements and remuneration; (3) Pay overtime pay and performance bonus, and provide post-related benefits; (four) to provide necessary on-the-job training for the dispatched workers; (five) continuous employment, the implementation of normal wage adjustment mechanism. The employing unit shall not send dispatched workers to other employing units.
The dispatched workers have the right to equal pay for equal work with the workers of the employing unit. If the employing unit has no workers in the same position, it shall be determined by reference to the labor remuneration of workers in the same or similar positions where the employing unit is located. Labor dispatch is generally implemented in temporary, auxiliary or alternative jobs.
The employing unit shall not set up a labor dispatch unit to dispatch workers to the unit or its subordinate units.
Fourteen On supervision and inspection
The labor administrative department of the local people's government at or above the county level shall supervise and inspect the following implementation of the labor contract system according to law: (1) the rules and regulations formulated by the employer that are directly related to the vital interests of workers and their implementation; (2) The conclusion and dissolution of the labor contract between the employer and the employee; (three) the labor dispatch units and employers to comply with the relevant provisions of labor dispatch; (four) the employer's compliance with the provisions of the state on the working hours and rest and vacation of workers; (five) the employer's payment of labor remuneration agreed in the labor contract and the implementation of the minimum wage standard; (six) the employer's participation in various social insurances and payment of social insurance premiums; (seven) other labor supervision matters stipulated by laws and regulations. When conducting supervision and inspection, the labor administrative departments of local people's governments at or above the county level have the right to consult the materials related to labor contracts and collective contracts and to conduct on-site inspections of workplaces. Both the employer and the employee shall truthfully provide relevant information and materials. When conducting supervision and inspection, the staff of the labor administrative department shall show their certificates, exercise their functions and powers according to law, and enforce the law in a civilized manner.
Fifteen. Relief of workers' rights
If the legitimate rights and interests of workers are infringed, they have the right to ask the relevant departments to deal with them according to law, or apply for arbitration or bring a lawsuit according to law. Any organization or individual has the right to report violations of this law, and the labor administrative department of the people's government at or above the county level shall promptly verify and deal with them, and reward those who report meritorious deeds.
Sixteen. Provisions on the transition period
Labor contracts concluded in accordance with the law before the implementation of this Law, which existed on the date of implementation of this Law, shall continue to be performed; The number of consecutive fixed-term labor contracts stipulated in Item 3 of Paragraph 2 of Article 14 of this Law shall be counted from the time when the fixed-term labor contract is renewed after the implementation of this Law. Where a labor relationship has been established before the implementation of this Law and a written labor contract has not been concluded, it shall be concluded within one month from the date of implementation of this Law. If the existing labor contract is dissolved or terminated after the implementation of this Law, and economic compensation should be paid according to the provisions of Article 46 of this Law, the period of economic compensation shall be counted from the implementation date of this Law; Before the implementation of this law, according to the relevant regulations at that time, if the employer should pay economic compensation to the workers, it shall be implemented in accordance with the relevant regulations at that time.
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