How can an enterprise do a legal transfer

Introduction: Enterprise legal risk management is a new high-end legal service business, which is different from the traditional legal adviser, and is not a simple enterprise compliance management. It is through the setting of a series of scientific index system, the use of identification, analysis, assessment and other technical means, the enterprise existing and may encounter the legal risk of comprehensive evaluation and diagnosis, and on this basis to formulate the enterprise legal risk management of the overall solution, to help enterprises to establish a legal risk management as the core of a comprehensive, dynamic risk management system.

The transfer cases are mainly: the negotiation between the two sides of the transfer, the transfer of incompetent employees, the transfer of the employer due to the needs of production and operation, as well as the transfer of significant changes in the objective situation.

a.? Transfer? Do a broad understanding

The transfer referred to in this paper to do a broad understanding, including: adjusting the workplace, the work content, the work position.

Second, the adverse legal provisions of the enterprise

Transfer belongs to the change of the content of the labor contract, in accordance with the provisions of Article 35 of the Employment Contracts Law, change the content of the labor contract, as in the case of signing a labor contract, the need for consensus between the two sides, and at the same time, should also be signed in writing, or else the change is invalid. When the enterprise wants to change the position of the employee, the employee takes the provisions of the article? Say things? The enterprise is often in a passive.

According to the "Supreme People's Court on the trial of labor disputes on the application of law on a number of issues of interpretation" (4) Article 11 provides: change the labor contract is not in writing, but has actually performed a verbal change in the labor contract for more than one month, and change the content of the labor contract does not violate the laws, administrative regulations, national policies and public order and morals, the parties to the non-written form for the reason of invalidating the change of the labor contract. The people's court does not support the claim that the change of the labor contract is invalid.

Third, the two sides of the negotiation to change jobs

According to the above provisions, the employer note:

1, the change of the labor contract, the employer and the employee is best to sign a written agreement to change, as long as there is a written change of the contract, and does not exist coercion, Fraud and other circumstances, the change of jobs, wages and treatment, whether higher or lower, due to the consensus of the two sides, are valid.

2, such as the adjustment of the employee's job, but did not sign a written change of contract, we must look at the adjustment of the job is actually performed for more than one month, whether or not the actual fulfillment of the main look at the employee has been in the new job, acceptance of the assessment, according to the new post of the payroll to receive labor compensation. And the transfer does not violate the laws, administrative regulations, national policies and public order and morals, is also considered valid.

Fourth, the enterprise how to reasonably and legally adjust the position

(a) the law transfer

In the Labor Contract Law, Article 40 (a), (b) clearly stipulates:

1, the employee? Sickness or non-work-related injury, the expiration of the medical period can not be engaged in the original workplace?

2, the employee? Unable to perform their original jobs? The unit has the right to transfer the employee, the employee should be obeyed.

The transfer, and the employee's own reasons for the close relationship, I think, the enterprise can be based on the actual situation? Salary change with the post?

The transfer, and the employee's own reasons are closely related, the author believes that the enterprise can according to the actual situation?

(ii) transfer according to the agreement

1, according to the labor contract agreement to change the workplace.

Such as an employee and a labor dispatch unit to sign a labor contract, in the labor contract agreed:? The workplace for a hospital headquarters and branches (locations are in a city). Units due to the performance of the employee is not good, decided to transfer the employee, the workplace from a branch to adjust to the headquarters, the employee to the distance from the place of residence, and the need for night shifts, refused to transfer. I believe that the unit behavior is legal, in full compliance with the agreement of the contract between the two sides, and change the location in the same city, but also more reasonable, the employee has no right to refuse to transfer.

2, the labor contract agreed that the employer has the right to adjust the position, the key transfer should be reasonable.

If the labor contract agreed:? The employer can adjust the position of the employee at any time due to the needs of production and operation. And an employee originally worked in Beijing, his family also lives in Beijing, now the unit requires the transfer of the employee to work in Tianjin. Although there is an agreement in the labor contract, the unit has the right to transfer, but it is unreasonable, very unfavorable to the employee, will affect the employee's life and take care of the family, therefore, the unit transfer is invalid.

(C) due to production and management needs and adjust the post

In the practice of labor relations, some employers will be due to some objective reasons need to adjust the work of the workers, but also worried about the negotiation with the employees, how to deal with this time? If there is no change in the main content of the labor contract, or although there is a change but really necessary for the production and operation of the employer, and the remuneration of workers and other labor conditions have not made adverse changes, the workers have the obligation to comply with the arrangements.

First, we have to prove its legitimacy

That is, the employer signed a labor contract with the employee, the workplace and the job agreed to a broader point, such as the workplace agreed to the business scope of the company's business area; job agreed to the management position or operating positions, so as to facilitate the transfer of employees in the two sides of the labor contract before the embankment of the job.

Second, to prove the reasonableness of the transfer

Employers based on the needs of production management, can be for the worker's workplace or job changes in a small range, at the same time, the employer has no inconvenience caused to the workers to take reasonable measures to compensate. For example, the employer transfers workers from Jianggan District to Shangcheng District, and provides shuttle buses or car allowance, and relaxes the commuting time by half an hour for those who are transferred from other districts other than Shangcheng District, so that they can come to work half an hour later, and leave half an hour earlier after work. The employer should try to minimize the disadvantages of the change for the workers and justify the adjustment.

Because of the poor operating efficiency of the enterprise, the organization was adjusted, the employee's department was withdrawn, the relevant personnel streaming, the employee from the original Ministry of Personnel was arranged to the Ministry of Production, the position is reduced, and the salary has been reduced, so the employee can not agree to the unit's transfer. The core of the essence of the unit transfer to the detriment of the legitimate interests of employees, suspected of violating the law.

(4) significant changes in the objective circumstances of the transfer

Article 40 (3) of the Labor Contract Law provides that the conclusion of the labor contract based on the objective circumstances of the significant changes in the labor contract can not be fulfilled by the employer and the workers, the employer and the workers consultation, failed to change the content of the labor contract agreement. The employer can terminate the labor contract after giving thirty days' written notice to the worker or paying the worker an additional month's salary.

About? Objective circumstances have changed significantly? The law does not have a clear definition, but this does not mean that there is not a determination of the standard, generally refers to force majeure or the employer to move across the region, mergers, acquisitions, joint ventures, transfer (reform), change of production, major technological transformation and so on, resulting in the labor contract of the production, the disappearance of the workplace. For example, the employee's original workplace in Shanghai, then the employer's Shanghai branch cancelled all to Beijing, it will make the purpose of the labor contract can not be realized. Because the place of work is also an important element of the labor contract, it belongs to the labor contract of one of the necessary terms. If the parties are in disagreement as to whether or not a certain situation is? A significant change in objective circumstances? If the parties do not agree, the labor dispute arbitration committee or the people's court shall decide.

In this case, the employer has reasonable objective reasons, should be negotiated to change the content of the work, the negotiation does not agree with the employer can be compared to the provisions of Article 40, paragraph 3 of the Labor Contract Law, thirty days in advance or pay an additional month's salary can be terminated after the labor contract, but it needs to pay the workers to terminate the labor contract of economic compensation. Employers need to pay attention to the retention? The employer should keep a record of any significant changes in the objective circumstances. The employer needs to be careful to keep the material of the corresponding material of the objective situation has changed significantly, and the material of the negotiation with the employee to change the content of the work, so as to avoid the risk of being recognized as unlawful termination.

V. Recommendations

In order to avoid the above risks, the implementation of the following points should be noted:

First, to see if there are special provisions in the local laws and regulations on the prior agreement in the labor contract that the employer has the right to change the position and salary, if there is no local regulations to support the provisions of the clause suspected of depriving workers of their rights and interests will lead to the invalidation of the clause. If there is no local regulation to support, the clause is suspected of depriving the workers of their rights and interests and will lead to the invalidity of the clause.

It should be noted that the two sides agreed to change the labor contract should be in writing. After the change of the labor contract text by the employer and the worker, each of which holds a copy. Therefore, the consensus between the employer and the worker should be confirmed in writing.

Second, the requirements of the rules and regulations, the rules and regulations should be clear, in which case the enterprise can make adjustments to the positions of employees.

When the enterprise based on employee confirmation (democratic procedures and after the publicity process) of the rules and regulations of the staff to carry out a reasonable transfer, the enterprise risk will be reduced to a minimum. At the same time, the enterprise should pay attention to the daily personnel management work, the specific requirements of each position in the form of rules and regulations fixed: for example, standardize the personnel management system, regular assessment of employees, the company should require employees to work in the error must be submitted to the company to explain or review and other written materials can be used as a unit to transfer the basis of the job.

Third, the full rationality of the requirements.

Enterprises should have sufficient reasonableness for the transfer of employees and salary adjustment. Enterprises should develop different pay systems for different jobs, if the enterprise has a job-specific pay system, each job pre-established roughly the pay range, the enterprise will be with the post after the salary adjustment has a more adequate rationality.

Fourth, the requirements of the enterprise's transfer and salary adjustment procedures should be notified to employees in writing.

Fifth, to save the relevant evidence to make the transfer of salary adjustment.

For the transfer of all kinds of information involved should be carefully analyzed, properly preserved, especially due to poor performance, is considered incompetent for the original position of the employee, because this is the future may occur in the termination of the contract of the important basis required.

Guangzhou lawyer tips, for employees who are not willing to transfer the employer should be careful with the right to transfer. If the employee does not agree to adjust, we have to comprehensively analyze, if the employee is not competent, the company can unilaterally adjust, of course, provided that there is relevant evidence to confirm that indeed can not do the job, and the employer has the relevant basis. That is, the employer's unilateral adjustment of employees must be legal and reasonable, otherwise, it is very likely to bear the consequences of losing. Adjustment is one of the focus of the current labor disputes, the key is to adjust the post and the resulting salary adjustment, directly related to the most fundamental economic interests of each person. The prevention of disputes should start from the daily work, can do the following two aspects:

(1) strictly in accordance with the requirements of the text of the operation of the various steps have left clear evidence;

(2) strictly in accordance with national laws, for the transfer of the issue of transferring wages in the labor contract, rules and regulations, and so on, to make a clear agreement.