Professor, School of Labor and Personnel, Renmin University of China
On June 29th, 2007, the 28th meeting of the 10th the NPC Standing Committee passed the Labor Contract Law of People's Republic of China (PRC) (hereinafter referred to as the Labor Contract Law). This law, which involves the vital interests of tens of thousands of workers in Qian Qian and is directly related to social harmony and stability, has lasted for one and a half years and has been deliberated for four times, which has aroused widespread concern from all walks of life, with interest games, contending opinions and legal speculation throughout. Compared with the Labor Law of People's Republic of China (PRC) promulgated by 1994 (hereinafter referred to as the Labor Law), the Labor Contract Law adheres to the basic framework of the labor contract system established by the Labor Law, further improves the labor contract system, makes up for the shortcomings of the original system, and promotes the employment stability of workers on the basis of giving consideration to the interests of enterprises. Its promulgation and implementation will have a far-reaching impact on promoting the harmonious development of labor relations in China.
The contractualization of labor relations is the basic feature of labor relations under the condition of market economy. In China, although the signing of labor contracts has been promoted since 1995, there is still a long way to go before the labor relations are fully signed. The labor contract system establishes a two-way employment mechanism, and both parties to labor relations have the right to stipulate their respective rights and obligations according to law, and regulate the conclusion, performance, alteration, dissolution and termination of labor contracts according to law. However, due to the long-term oversupply in China's labor market, there are obvious differences between employers and employees in terms of negotiation and asking price, so problems such as low labor contract signing rate, short labor contract term, abuse of probation period and labor dispatch have always existed. In order to standardize and standardize the development and operation of labor relations under the market economy system, make up for the shortcomings existing in the implementation of the current labor contract system, and solve the outstanding problems existing in the employment field after the implementation of the labor contract system for more than ten years, formulating the labor contract law is helpful to alleviate the contradiction between labor and capital, and establish and improve standardized, orderly, legal, reasonable, harmonious and stable labor relations.
First, improve the labor contract and standardize the employment system.
The Labor Contract Law has achieved a breakthrough and innovation in standardizing the employment system, and its institutional arrangements are mainly reflected in the aspects of the employment system of public institutions, standardizing the labor dispatch system, and adjusting part-time employment.
1. towards integration, the employment contract system of public institutions conforms to the labor contract law.
In order to protect the legitimate rights and interests of all workers, the Labor Contract Law further expands the scope of application of labor contracts, and brings the employment system personnel of public institutions into the scope of labor contract management. The Labor Contract Law stipulates that the conclusion, performance, alteration, dissolution or termination of labor contracts by state organs, institutions, social organizations and laborers who have established labor relations with them shall be implemented in accordance with this Law. This provision extends the labor contract to all civil servants and workers except those who are managed by referring to the Civil Service Law, which tends to be more and more comprehensive protection, which will make more workers protected by law and make all kinds of units more standardized and perfect in employing people.
China has more than 30 million staff in public institutions. Since 2000, the state has intensified the reform of personnel system in public institutions, and successively issued a series of supporting documents for personnel system reform. In particular, in July 2002, the General Office of the State Council forwarded the Opinions on the Trial Employment System of Personnel in Public Institutions, which standardized the employment contract management system of public institutions. It is an important institutional innovation of personnel management in public institutions to change the employment mechanism and try out the personnel appointment system. The implementation of the employment contract system in public institutions has broken the identity boundaries of staff in public institutions and the current cadre tenure system and fixed employment system in public institutions. Its essence is to implement two-way choice, from the past administrative appointment relationship to equal consultation employment relationship, from identity management to post management, from pure administrative management to legal management, from national employment to unit employment. Because the personnel system of public institutions is under the overall responsibility of the Ministry of Personnel, which mainly implements the national personnel laws and policies, it is different from enterprises in terms of management system, personnel withdrawal mechanism, social insurance connection, insurance source, etc., and some supporting policies and regulations are not perfect, which leads to the problems and contradictions in the process of implementing the appointment system in public institutions. "Labor Contract Law" includes the employees employed by public institutions in its adjustment scope, and extends the application scope of the Labor Contract Law to the employees employed by public institutions. The significance of this institutional arrangement lies in breaking the traditional division between the labor market and the talent market, helping to establish a unified employment legal norm, fundamentally changing the planned employment system and the fixed employment system of public institutions, and integrating the personnel system reform of public institutions with the labor contract law.
2. Clarify part-time labor standards and standardize the flexible employment system.
Since 1990s, with the development of industrialized economy to global economy, traditional and standard labor relations have gradually weakened, and "increasing flexibility", "deregulation" and "economic globalization" have become the key words of labor relations legislation. There is a growing call for deregulation and the establishment of a more free and flexible employment mechanism in the labor market. With the diversified development of China's economy, the types of enterprises and employment forms are increasingly diversified, and a large number of flexible employment forms such as hourly work, part-time work and shift work have emerged. However, incompatible with the reality of more and more diversified employment, China has not made legal norms on flexibility and flexible employment, which often leads to the embarrassment of rights protection for those engaged in flexible employment. The Labor Contract Law regards flexible employment as an independent part, stipulates that part-time employment is one of the forms of employment system, regulates part-time labor relations, and makes specific provisions on the working hours, labor remuneration, contract conclusion, social insurance, contract termination and other issues of flexible employees. According to the Labor Contract Law, part-time employment refers to a form of employment in which hourly remuneration is the main factor, and the average daily working hours of workers in the same employer generally do not exceed four hours, and the cumulative working hours per week do not exceed twenty-four hours. Different from the full-time employment system, part-time employment is different in the establishment form of labor relations, dual labor relations, termination flexibility and whether there is economic compensation. Part-time employment, enterprises and workers can conclude oral agreements; Laborers engaged in part-time work may conclude labor contracts with one or more employers, but the labor contracts concluded later will not affect the performance of the previous labor contracts; Either party of part-time employment can notify the other party to terminate the contract at any time; Enterprises can terminate employment without paying economic compensation. These regulations have promoted the development of part-time flexible employment forms. At the same time, in view of the lack of legal regulation of part-time employment, repeated violations of workers' rights and interests, and some employers evading legal responsibilities, the Labor Contract Law has made restrictive provisions on part-time probation period and wage payment: part-time employment shall not stipulate probation period; The hourly wage standard for part-time employees shall not be lower than the minimum hourly wage standard stipulated by the local people's government of the employer; The settlement and payment period of labor remuneration for part-time employees shall not exceed fifteen days at the longest. These regulations have solved the problem of safeguarding the rights of flexible employees.
3. Standardize the employment of labor dispatch, and clarify the rights and obligations in labor dispatch.
Labor dispatch is another new flexible employment system that has emerged in recent years. Different from labor relations, labor dispatch involves the legal relationship between dispatching agencies, workers and employers (actual employers). After signing a labor contract with the employee, the dispatching agency sends the employee to work in the employer according to the labor dispatch agreement signed with the actual employer. Under the background of economic globalization and increasingly fierce competition among enterprises, it has become the choice of enterprise employment system in many countries to choose a new form of employment, including labor dispatch, to reduce the cost and risk of employment and ensure the flexibility of employment. According to the data provided by the Japanese Ministry of Health, Labor and Welfare's White Paper on Labor Economy (2006), the proportion of temporary workers employed by labor dispatch was 20% in 2000 and rose to 24% in 2005. Among them, the proportion of men increased from 9.4% to 12.5%, and the proportion of women increased from 3 1.6% to 40.6%. This shows that two-fifths of Japanese female employees are temporary employees, while in the economic growth of 1970, this figure is only 12.2%. This is because "it is very difficult for a regular employee to be fired, and now the company is not willing to take this risk." When the enterprise is thriving, you can recruit more employees. When the business is depressed, you may say you are sorry and can't come back tomorrow. "[1] In Japan, the income gap between regular employees and dispatched employees is about double, and there are also differences in insurance benefits, pensions and annual leave. In China, labor dispatch has also adapted to this demand, and it has mushroomed, and the number of people employed through labor dispatch is also increasing at an alarming rate. Due to the lack of clear legal norms, there are differences between dispatched employees and regular employees in labor relations, dismissal protection, social insurance payment, welfare treatment, equal pay for equal work and so on. Once there is a dispute between the dispatched parties, they will often pass the buck to each other and infringe upon the rights and interests of the workers, so standardizing the dispatched labor relations has become a concern of the labor contract law.
The Labor Contract Law mainly regulates labor dispatch from the aspects of stipulating the obligations of dispatching agencies and receiving units and the rights of dispatched workers, and guides this form of employment. The provisions of the Labor Contract Law on labor dispatch units mainly include the qualifications, status and related obligations of labor dispatch units: 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. In the tripartite relationship of labor dispatch, the labor dispatch unit shall bear the responsibility of the employer, sign a fixed-term labor contract with the dispatched personnel for not less than two years, and pay the labor remuneration monthly. Even when the dispatched personnel are not working, the labor dispatch unit shall pay them monthly labor remuneration according to the minimum wage standard stipulated by the local people's government. The labor dispatch unit shall inform the dispatched personnel of the contents of the dispatch agreement, and shall not deduct the labor remuneration paid by the employing unit to the dispatched personnel according to the dispatch agreement, nor shall it collect fees from the dispatched personnel.
For the employing units that actually accept labor dispatch, the Labor Law Contract Law stipulates that the employing units shall actually implement the national labor standards and provide corresponding working conditions and labor protection; Inform the dispatched personnel of the job requirements and labor remuneration; Pay overtime pay and performance bonus, and provide post-related benefits; To provide on-the-job training for dispatched personnel required for their work; Continuous employment, the implementation of the normal wage adjustment mechanism. The employing unit shall not send dispatched personnel to other employing units, set up labor dispatch units to dispatch workers to its own unit or subordinate units, or collect fees from dispatched workers.
The Labor Contract Law not only stipulates the obligations of the dispatching unit and the employing unit, but also clearly stipulates that the dispatched personnel have the right to equal pay for equal work, especially for the most criticized issue of equal pay for equal work in labor dispatch. If the employer does not have 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 employer is located; The dispatched personnel have the right to join or organize trade unions according to law and safeguard their legitimate rights and interests. In order to avoid the employer and the dispatching unit shirking each other when the rights and interests of the dispatched workers are infringed, the Labor Contract Law stipulates that if the rights and interests of the dispatched workers are damaged, the labor dispatching unit and the dispatching unit shall bear joint and several liability for compensation; Labor dispatch is generally implemented in temporary, auxiliary or alternative jobs. The provisions of the Labor Contract Law on labor dispatch posts, return of labor dispatch, joining trade unions and other issues can effectively avoid the disorderly development of labor dispatch and make labor dispatch enter a standardized development stage according to the "rules of the game". For enterprises that use dispatched workers, it is necessary to re-evaluate the risks, advantages and disadvantages of dispatched workers and adjust the concept of employment, so that the use of workers meets the legal requirements and the needs of enterprises.
Second, balance the rights and interests of both employers and employees, and seek the convergence of interests.
As far as the norms of individual labor relations are concerned, market economy countries mainly make adjustments by enacting labor standards laws, focusing on protecting the basic rights of workers, including wages, working hours, dismissal protection, minimum employment age, safety and health standards, etc. Judging from the specific institutional arrangements of the Labor Contract Law, it is generally a law that determines the standards of labor relations, including the standards for concluding labor contracts, performing changes and dissolving labor contracts, and arranging and setting the rights and obligations of workers and employers in this process. The labor contract law focuses on adjusting the standards of labor relations, which involves the law's grasp of the "degree" of intervention by both parties to the contract. If there is too much intervention, it will violate the principle of free consultation between the two parties to the contract. If there is too little intervention, it will not be enough to solve the problems in the implementation of the labor contract system. Although the Labor Contract Law has some characteristics of social law, it cannot reduce the nature of party autonomy under public law. "Labor Contract Law" is to pursue the harmony and balance adjustment between labor and capital under the standard of social interests, and to seek the meeting point of labor and capital interests.
1. Seek the balance of rights distribution between labor relations.
One of the goals of labor contract legislation is to balance the rights and obligations of both parties and clarify the rights and obligations of both parties in the conclusion, performance, alteration, dissolution and termination of the contract. How to arrange the rights and obligations of both parties is the focus and difficulty of legislation. For example, is the formulation of enterprise rules and regulations negotiated by employers and employees? Or is it unilaterally formulated by the employer? It has always been the focus of debate in the legislative process. The Labor Contract Law further clarifies that when an employer formulates, revises or decides on rules and regulations or major issues that directly affect the vital interests of workers, it shall discuss them with the workers' congress or all the workers, put forward plans and opinions, and negotiate with trade unions or workers' representatives on an equal footing to determine them. In the process of implementing the rules and regulations, if the trade union or employees think that the rules and regulations of the employer are inappropriate, they have the right to propose to the employer and modify and improve them through consultation. The Labor Contract Law also requires that rules and regulations directly related to the vital interests of workers should be publicized or informed. It is no longer a matter for enterprise managers to formulate rules and regulations, let alone something that enterprises can decide unilaterally. In the process of formulating and amending the rules and regulations concerning the vital interests of workers, the Labor Contract Law endows them with the spiritual connotation of democratic management and establishes a decision-making consultation mechanism between employers and employees.
2. Seek the balance between substantive rights and legal procedures.
The Labor Contract Law seeks the convergence of the interests of both employers and employees through the balance between substantive rights and legal procedures, such as the substantive conditions and legal procedures for economic layoffs. In essence, the economic layoff system is a no-fault unilateral notice to terminate the labor contract, which is an inevitable phenomenon under the conditions of market economy. However, a large number of layoffs will inevitably lead to a large number of workers losing their jobs, which will adversely affect social stability. Therefore, the regulation of economic layoffs should be allowed and strictly regulated. The Labor Contract Law not only relaxes the substantive conditions of layoffs, but also restricts economic layoffs from the procedure.
The Labor Contract Law stipulates that an enterprise may lay off employees in any of the following circumstances: it shall be reorganized in accordance with the provisions of the Enterprise Bankruptcy Law; Serious difficulties in production and operation; After the change of production, major technological innovation or adjustment of business mode, it is still necessary to reduce the number of employees after changing the labor contract; 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. The regulation also includes non-economic reasons such as changing production, technological innovation and adjustment of business methods into the scope of layoffs. At the same time, the law also provides for the protection of vulnerable workers when laying off employees, that is, when laying off employees, enterprises should give priority to workers who have entered into fixed-term labor contracts with their own units for a long time, as well as workers who have no other employees, the elderly or minors who need support. This regulation appropriately relaxes the control over the authenticity and severity of the economic reasons for layoffs, and stipulates that layoffs should take into account the family burden, length of service, professional qualifications, age, physical condition and other factors of the laid-off personnel.
The Labor Contract Law also stipulates the procedural conditions for layoffs, mainly including trade union intervention in economic layoffs, early warning period, and employment protection for laid-off workers. The Labor Contract Law stipulates that if an enterprise needs to lay off more than 20 employees or less than 20 employees, accounting for more than 10% of the total number of employees in the enterprise, the employer may lay off employees after explaining the situation to the trade union or all employees 30 days in advance and listening to the opinions of the trade union or employees. 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. The Labor Contract Law strengthens the negotiation function between trade unions and employers in the process of economic layoffs from the setting of procedural conditions, strengthens the labor protection of trade unions for employees, and ensures the priority of laid-off workers. The Labor Contract Law stipulates the conditions and procedures for layoffs, taking into account the interests of both enterprises and workers. It not only confirms that enterprises can lay off employees according to the needs of competition, but also ensures that laid-off employees are compensated, and individual poor groups enjoy special protection, seeking a balance between the interests of employers and employees from the aspects of substantive rights and procedural regulation.
3. Seek the balance between negotiation and legal regulation.
The Labor Contract Law balances the rights and obligations of both parties by setting the legal bottom line and ensuring the free negotiation between the two parties, and limits the negotiation between the two parties to the scope prescribed by law. The provisions on training agreement in the Labor Contract Law embody this spirit. The law stipulates the conditions for signing a training agreement: "If an employer provides special training fees for workers and conducts professional technical training, it may conclude an agreement with the workers to stipulate the service period." Workers who violate the service period shall pay liquidated damages to the employer. The specific payment amount of liquidated damages shall be agreed by both parties through consultation, but the agreed amount of liquidated damages during the service period shall not exceed the training expenses provided by the employer. When the laborer breaches the contract, the actual liquidated damages paid "shall not exceed the training expenses that should be shared for the unfulfilled part of the service period". On the one hand, the Labor Contract Law stipulates the conditions for signing training, which limits the amount of liquidated damages and the actual amount paid. On the other hand, it authorizes both parties to negotiate the service period and the specific amount of liquidated damages, that is, employers and employees can negotiate the relevant rights and obligations within the legal scope. The same is true of the provisions on non-competition and confidentiality. On the one hand, the Labor Contract Law stipulates the longest period of non-competition and the scope of personnel, as well as the time and scope of paying economic compensation. At the same time, the employer and the employee are also given the right to negotiate and agree on matters involving trade secrets and intellectual property rights, and specifically agree on the scope, region, duration, amount of liquidated damages and amount of economic compensation for non-competition. As long as both parties agree not to violate the mandatory provisions of the law, it is legal and effective.
Third, strengthen the game ability of the weak and protect the legitimate rights and interests of workers.
Whether the legislative purpose of the labor contract law should safeguard the legitimate rights and interests of workers has always been the focus of debate in the legislative process. Because workers are actually in a weak position in labor relations, labor contract legislation embodies the spirit of leaning towards weak workers on the basis of giving consideration to the interests of enterprises, so as to ensure fairness and promote harmony. On the basis of clarifying the rights and obligations of both parties, the Labor Contract Law strengthens the game ability of workers in labor relations through some mandatory provisions, and emphasizes the legislative spirit of protecting the legitimate rights and interests of workers.
1. Pay double wages without signing a labor contract.
Factual labor relations have been a prominent problem in the labor contract system for many years. According to sampling survey statistics, the signing rate of labor contracts in construction and catering services is only about 40%, migrant workers are about 30%, and small and medium-sized non-public enterprises are less than 20%. In order to avoid legal obligations and save money, many employers often don't sign any form of labor contracts with workers. Once a dispute occurs, they shirk their responsibilities and refuse to admit that there is a labor relationship between the two parties, and the rights and interests of workers cannot be properly protected. In view of the current widespread problem of not signing a labor contract, the Labor Contract Law stipulates that if a labor contract is not signed for more than one month after the establishment of a labor relationship, the employer shall pay the employee twice the salary. If the contract is not signed for more than one year, it is directly regarded as an open-ended labor contract signed by both parties. The Labor Contract Law strictly prohibits factual labor relations and increases the punishment, thus avoiding factual labor relations to the maximum extent and embodying the protection of workers' rights and interests.
2. Formulate the minimum wage standard during the probation period.
In view of the malicious extension of the probation period by some employers, the Labor Contract Law stipulates that 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 employee's salary during the probation period shall not be less than 80% of the minimum wage of the same position or the salary agreed in the labor contract. If the employer terminates the labor contract during the probation period, it shall explain the reasons to the employee. The Labor Contract Law clearly links the probation period with the term of the labor contract, that is, the longer the contract period, the longer the corresponding probation period, and makes restrictive provisions on the probation salary, which has a binding effect on the employer's abuse of the probation period to reduce costs.
3. Incorporate the occupational hazard clauses into the essential clauses of the contract.
At present, there are more than 200 million people suffering from occupational hazards in China, most of whom are migrant workers, and the occupational hazards in small and medium-sized enterprises are prominent. The Labor Contract Law has added relevant clauses, stipulating that when employing workers, employers should not only tell the occupational hazards truthfully, but also specify the occupational hazards and protective measures in the labor contract.
4. Strictly perform the labor contract
The Labor Contract Law stipulates that employers and employees should fully perform their respective obligations. 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. On the issue of wage arrears, the Labor Contract Law has taken a big step forward: as long as workers can prove that employers have not paid wages in full and on time, they can directly apply to the court for a payment order, which can curb the phenomenon that employers owe wages to workers to some extent. In addition, the "Labor Contract Law" also stipulates that employers should strictly implement the labor quota standards, and may not force or force workers to work overtime in disguise. 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.
If the employer violates the law, the employee can terminate the contract.
The Labor Contract Law stipulates that the employer fails to provide labor protection or working conditions in accordance with the labor contract; Failing to pay labor remuneration in full and on time; Failing to pay social insurance premiums for workers according to law; The rules and regulations of the employing unit violate the provisions of laws and regulations and damage the legitimate rights and interests of workers; If the labor contract is invalid due to the fault of the employer, the employee may terminate the labor contract and ask the employer to pay economic compensation.
6. Limit the liability of workers for breach of contract.
The Labor Contract Law has restrictive provisions on the terms of liquidated damages for workers. Except for violating the service period agreement and the non-competition agreement, the employer shall not agree with the employee that the employee shall bear the liquidated damages. The agreement on liquidated damages has been strictly restricted.
7. When the labor contract is terminated, the enterprise shall also pay economic compensation.
The Labor Contract Law stipulates that unless the employer maintains or improves the conditions stipulated in the labor contract to renew the labor contract, and the employee does not agree to renew or terminate the fixed-term labor contract, the employer shall pay economic compensation to the employee. This provision has changed the practice that enterprises can not pay economic compensation when the contract expires as stipulated in the labor law. If the labor contract expires and the enterprise no longer uses the laborer, it shall give economic compensation according to the working years of the laborer.
8. Increase the legal liability of the employer for violating the law.
The Labor Contract Law, while protecting both parties equally, emphasizes favoring workers and increases the punishment for illegal employers. Where an employer delays or deducts wages and economic compensation from workers, the Labor Law stipulates that 25% and 50% of wages and economic compensation shall be paid respectively. The labor contract law unifies the two and increases the penalty, which is between 50% and 100%, and is comprehensively considered by the labor administrative department according to different situations. This regulation has increased the punishment for employers who violate the law.
Fourth, ensure fairness and build and develop harmonious and stable labor relations.
As a tool to promote competition and protect workers, the labor contract law should adhere to the principles of encouraging the market economy to improve the national economic competitiveness and controlling the labor market to protect the legitimate rights and interests of workers, and seek a balance between the rights and interests of workers and the rights and interests of enterprises. It is not advisable to completely regulate the supply of labor by the market. In order to achieve long-term economic prosperity, it is of great significance to protect the basic rights of workers. In the more flexible new economic environment, how to properly balance the efficiency of enterprises and the fairness of protecting the weak is the key to solve the real labor relations problem through legislation. In order to ensure fairness, build and develop harmonious labor relations, the Labor Contract Law has made breakthrough provisions on the labor contract system.
1. Encourage the signing of open-ended labor contracts.
In the course of thirteen years' implementation of Labor Law, short-term labor contract has always been a prominent problem. Many enterprises just take advantage of workers' adolescence, which has seriously affected workers' rights and interests and caused workers' insecurity and stability. A prominent feature of the Labor Contract Law is to encourage and guide employers to sign open-ended labor contracts. Generally speaking, open-ended contracts have a higher degree of protection for workers. Enterprises must be restricted by law if they want to dismiss workers without fixed-term contracts. Employees shall not be dismissed without justifiable reasons. Its purpose is to maintain sustained and stable labor relations, so that workers can plan their life, work and career for a long time, and enterprises can also train employees and develop human resources. The Labor Contract Law stipulates that an employee who proposes or agrees to renew or conclude a labor contract shall conclude an open-ended labor contract under any of the following circumstances, unless the employee proposes to conclude a fixed-term labor contract: (1) The employee has worked in the employer for ten years continuously; (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) The laborer has successively concluded two fixed-term labor contracts, and the laborer has not renewed the labor contract under the circumstances specified in Items 1 and 2 of Article 39 and Article 40 of this Law; (4) 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. This provision of the Labor Contract Law not only expands the scope of people who sign non-fixed-term labor contracts, but also adjusts the conditions for workers to sign non-fixed-term labor contracts after they have worked in the employer for ten years continuously. The main difference between the Labor Contract Law and the Labor Law on this issue is that in the past, workers begged employers to sign open-ended labor contracts, but now employers take the initiative to find qualified workers to sign open-ended labor contracts.
It can be predicted that with the implementation of the Labor Contract Law, open-ended labor contracts will gradually become the norm of China's labor contract system, and medium and long-term employment will become the main employment form in labor contracts.
It is worth noting that an open-ended labor contract is not an "iron rice bowl", and stable labor relations are not equal to "fixed" and "rigid" labor relations. For a long time, life tenure and "iron rice bowl" are the understanding of open-ended labor contracts by most people, but this understanding is not accurate. An open-ended labor contract refers to a labor contract signed by an employer and a worker without a fixed termination time. Uncertain termination time does not mean "lifelong", but means that the employer must have legal reasons to terminate the contract, and the contract cannot be terminated casually without legal reasons. That is to say, as long as there is a legal termination of the labor contract, or the employee and the employer reach an agreement through consultation, the employer can still terminate the open-ended labor contract according to law.
2. Strengthen the role of trade unions in coordinating labor relations.
The Labor Contract Law stipulates that the labor administrative department of the people's government at or above the county level shall, together with trade unions and enterprise representatives, 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. These provisions of the Labor Contract Law further guide the position and role of the government and trade unions in the micro-labor contract management in the market economy, and strive to make workers and employers tend to be equal in legal status by strengthening the strength of trade unions.