Copyright © 2020 Nantong Dadong Co., Ltd.  All rights reserved  苏ICP备12024946号  Powered by www.300.cn

News

The latest implementation rules of the labor law in 2014

Page view

According to the "Regulations on the Medical Period for Sickness or Non-Work Injury of Enterprise Employees" (Labor Ministry [1994] No. 479) and other relevant regulations, the sick leave of sick or non-work-related employees is based on their actual working years and their work Working years, given a medical period of three months to twenty-four months:

(1) If the actual working life is less than ten years, the working life of the unit is less than five years is three months; if the working life is more than five years, six months.

(2) If the actual working life is more than ten years, the working life of the unit is less than five years for six months; for more than five years and less than ten years, nine months; for more than ten years and less than 15 years, 12 months ; The period between 15 years and 20 years is 18 months; the period over 20 years is 24 months.

The latest implementation rules of the labor law in 2014 (full text)

table of Contents

一、General Provisions

2. The conclusion of the labor contract

Three. Performance and change of labor contract

4. Termination and termination of labor contract

5. Collective contract

VI. Labor dispatch

Detailed Rules for the Implementation of the Labor Contract Law (draft for comments)

一、General Provisions

1. "Equivalent organizations" in Article 2 of the "Labor Contract Law" not only refer to enterprises, individual economic organizations, and private non-enterprise units within the territory of the People's Republic of China, but also include accounting firms, law firms, foundations, and other legal Registered unit.

2. Branches that have registered and obtained business licenses with the administrative department for industry and commerce can conclude labor contracts with employees in accordance with the law with the authorization or consent of the employer. When the branch cannot perform its obligations to the workers, the employer shall bear the responsibility.

3. State agencies and social organizations recruit workers other than civil servants and reference civil servant managers, that is, they have established a labor relationship with them, and a labor contract shall be concluded in accordance with the law.

4. The laborer referred to in the Labor Contract Law shall be at least 16 years old and have not yet enjoyed basic pension insurance benefits or retirement benefits.

5. Civil servants and personnel managed by reference to civil servants, rural laborers (except for employees of township enterprises, urban workers and farmers engaged in business), active military personnel, nanny directly employed by the family, and people who have enjoyed basic pension insurance benefits or received pensions, etc. The labor contract law is not applicable.

6. ​​Employers who recruit workers who maintain full-time labor relations with foreign units shall conclude labor contracts in accordance with the law.

7. Employers should sign labor contracts in accordance with the law when recruiting veterans who are self-selected and transferred.

8. Employers who recruit foreigners shall apply for foreigner employment permits and conclude labor contracts in accordance with the law.

9. Employers recruiting personnel from Hong Kong, Macao and Taiwan regions shall apply for employment permits for Hong Kong, Macao and Taiwan personnel and conclude labor contracts in accordance with the law.

10. The recruitment of laborers in the offices of foreign enterprises in China, foreign embassies and consulates, and international organizations in China shall be handled in accordance with the current relevant laws and regulations.

11. When the employer formulates, revises or decides on the rules and regulations or major matters directly related to the vital interests of the workers, it shall be discussed by the workers’ congress or all the workers, put forward plans and opinions, consult with the trade union or the workers’ representatives on an equal footing, After the employee representatives negotiate on an equal footing, the employer decides the implementation of rules and regulations or major issues.

12. The parent company shall issue a document below to require the subsidiary company to implement the rules and regulations formulated by the parent company. After the subsidiary has fulfilled the procedures stipulated in Article 4 of the Labor Contract Law, the rules and regulations can be used as the basis for the employment management of the subsidiary.

13. The rules and regulations or major matters decided by the employer through democratic procedures are automatically applied to newly recruited employees, but the employer must perform the obligation of publicity or notification. In the process of implementing rules and regulations or decisions on major issues, if newly recruited employees think it is inappropriate, they have the right to propose to the employer and make amendments and improvements through consultation.

14. In accordance with the provisions of Article 4 of the Labor Contract Law, the rules and regulations formulated through democratic procedures by the employer do not violate national laws, administrative regulations and policies, and the employer has publicized or notified the employees, it can be used as the employer’s employment management in accordance with.

15. "Publicity or notification" means that the employer’s rules and regulations or major decisions can be fully delivered or conveyed to the employees by means of laborer’s manual, study and training and other legally recognized methods.

16. The "major matters" in Article 4, Paragraph 2 of the "Labor Contract Law" refer to those directly related to labor remuneration, working hours, rest and vacation, labor safety and health, insurance benefits, employee training, labor discipline, and labor quota management. Matters of vital interests of workers.

17. If the labor union or employees believe that the rules and regulations or major matters involving the vital interests of the workers are inappropriate, they shall submit their opinions and the employer shall reply in writing within 30 days.

18. The labor rules and regulations of the employer cannot stipulate the content of fines for employees who violate disciplines.

2. The conclusion of the labor contract

19. The employee roster should include the employee’s name, gender, identity number, household address, job position, etc. The employer shall submit the employee roster to the local labor administrative department for the record.

20. The "other documents" in Article 9 of the Labor Contract Law refer to various documents related to the employment of workers, such as academic certificates, skill certificates, and qualification certificates.

"Guarantee" refers to the guarantee of the property and the guarantee of the person.

"Charging property from workers in other names" refers to property related to the establishment of labor relations, such as clothing fees, driver's risk funds, and security deposits.

21 "Equal pay for equal work" refers to full-time workers in the same employer who pay the same amount of labor and achieve the same performance in the same, similar, and similar jobs, and the same wage distribution system shall be implemented. (In addition, does equal pay for equal work include subsidies, annuities, benefits, etc.?)

22. "One month" in Articles 10, 19 and 82 of the Labor Contract Law refers to 30 days.

23. The employer shall sign a written labor contract within 1 month from the date of employment. If a written labor contract is concluded from the second month to the twelfth month, the employer shall pay the employee twice the monthly salary. Starting from the twelfth month, it is deemed to have entered into an open-term labor contract with the worker, and no longer pays twice the salary. If the labor contract is not renewed after the labor contract expires, and the worker continues to provide labor for the employer, the above-mentioned provisions shall be implemented.

24. If the employer and the employee fail to sign a written labor contract within one month due to the employee’s reasons, the employer may propose to terminate the labor relationship without paying economic compensation; the employer’s reasons cause the employer and the employee to terminate the labor relationship. If the worker fails to sign a written labor contract within one month, the worker may propose to terminate the labor relationship, and the employer shall pay economic compensation.

If the two parties have not concluded a written labor contract after more than one month of employment, the employer cannot terminate the labor relationship arbitrarily even if the employer pays twice the salary for each use. Articles 39, 40, and 41 , The provisions of Article 44 shall be handled. If the employer illegally terminates or terminates the labor relationship, it must be handled in accordance with Article 48 and Article 87 of the Labor Contract Law. Workers can notify the employer to terminate the labor relationship at any time, and the employer does not need to pay economic compensation.

If the employer does not sign a written labor contract at the same time as the employment, when the labor contract is signed, the term of the labor contract shall be calculated from the date of employment.

25. The unfixed term labor contract shall not stipulate termination conditions. If the employee meets the legal termination and termination conditions, the employer can terminate or terminate the labor contract.

26. The first paragraph of Article 14 of the Labor Contract Law "has worked continuously for ten years" is calculated from the time the worker starts working to the employer. Where workers move between different employers due to organizational reasons, or transfer from one employer to another due to business transfer, their working years are continuously combined and calculated as the working years of the last employer.

27. For employees who have been restructured from a state-owned enterprise into a non-state-owned enterprise, and whose labor contract with the state-owned enterprise has been terminated and received economic compensation, their working years in the original state-owned enterprise shall not be combined and calculated as the working years of the non-state-owned enterprise after the restructuring. If the labor contract with a state-owned enterprise is terminated and a labor contract is signed with a non-state-owned enterprise after the restructuring, the working years in the original state-owned enterprise shall be combined and calculated as the working years of the state-owned enterprise after the restructuring.

28. The factory director and manager are appointed (appointed) by the superior department, and a labor contract should be signed with the superior appointment (appointment) department. The directors, managers and relevant business management personnel of enterprises that implement the corporate system shall sign labor contracts with the board of directors. The party committee secretary, the chairman of the labor union, and other full-time party members can sign labor contracts with the employers, and can also sign labor contracts with the appointing agencies of higher-level departments. It is not necessary to sign labor contracts for business leaders managed by the administrative departments of relevant organizations.

29. The initial implementation of the labor contract system by the employer refers to the initial implementation of the labor contract system by the public institution and the first labor contract signed with the employee after the public institution is transformed into an enterprise.

30. If the laborer has worked in the employer for ten years and the labor contract of both parties has not expired, and the laborer proposes to conclude a labor contract with no fixed term, the two parties can negotiate to change the labor contract period: if the negotiation is inconsistent, continue to perform the labor contract concluded by both parties .

31. If the labor contract expires and the employee has one of the conditions in Article 42 (1) to (4) of the Labor Contract Law, after the labor contract is postponed, if the employee has worked in the same employer for ten consecutive years, At this time, if the worker proposes to sign an open-term labor contract, the employer must sign it.

32. "Continuous" in Article 14 of the Labor Contract Law means that the time interval does not exceed one year.

33. A labor contract with a deadline for completing certain tasks refers to seasonal, temporary, and phased employment. After the expiration of the labor contract signed by the employer and the worker for the completion of a certain task, the labor contract for the completion of a certain task can no longer be continuously signed in the same post. Economic compensation shall be paid for termination or cancellation of labor contracts for more than one year.

34. After the implementation of the "Labor Contract Law", the labor contract concluded or renewed by the employer and the employee shall be regarded as the first time for the calculation of consecutive fixed-term labor contracts.

35. If the labor contract stipulates that the labor contract is automatically renewed after it expires, the automatic renewal shall be regarded as a written labor contract. If a worker has worked continuously for ten years, he can propose to conclude an open-term labor contract.

36. If the employer fails to deliver the text of the labor contract to the employees, it shall be deemed that it has not concluded a written labor contract.

37. The mandatory clauses of the labor contract stipulated in the "Labor Law" do not belong to the provisions of Article 17 of the "Labor Contract Law" as "other matters stipulated by laws and regulations that should be included in the labor contract."

38. The labor remuneration in the mandatory clauses of the labor contract can be a specific amount or a salary system approved by both parties.

39. The job contract signed by the employer and the worker is part of the labor contract, and the term of the job contract can be shorter than the term of the labor contract.

40. After the "Labor Contract Law" is implemented, if the content of the labor contract does not have the necessary clauses, the employer shall negotiate with the worker to supplement it. Provisions that are inconsistent through negotiation shall be implemented in accordance with relevant national laws and regulations.

41. If the worker’s address or other matters change, the employer shall be notified in time and the content of the labor contract shall be changed in writing.

42. The term "more than three months", "more than one year", and "more than three years" in the first paragraph of Article 19 of the "Labor Contract Law" includes three months, one year, and three years; "One year" and "less than three years" do not include one year or three years. The "more than six months" in the first paragraph of Article 44 includes six months.

43. The wages of the employees during the service period shall not be lower than the minimum wage standard of the employer’s location, and shall not be lower than the minimum wage for the same position in the employer, or 80% of the wages agreed in the labor contract (it is recommended to consult the NPC Law Committee).

44. If the employer recruits the same laborer, regardless of whether the position is changed, the labor contract is renewed, or the employment is terminated after a period of time, the probation period cannot be agreed again.

45. Employers provide special benefits for workers. The agreed responsibilities and obligations are not the agreed terms of the labor contract and can be agreed through agreement.

46. ​​The “special training expenses” in Article 22 of the “Labor Contract Law” refers to the expenses that the employer provides to employees at a one-time or cumulatively within a year that exceeds 50% of the average annual salary of the enterprise. “Professional technical training "Refers to the training provided to improve the specific skills of workers. The training before the job and the daily business training are not professional technical training. The training fee is recognized based on the training documents with currency payment vouchers, as well as the salary and travel expenses paid during the training period.

47. If the employer terminates the labor contract of a laborer who has provided professional technical training in accordance with Article 39 of the Labor Contract Law, the employer has the right to require the laborer to still pay the employer liquidated damages in accordance with the contract of the service period.

48. If the service period is longer than the term of the labor contract, the employer shall negotiate with the employee to change the term of the labor contract. If the change is not negotiated, the term of the labor contract will be automatically extended to the expiration of the service.

49. The "senior management personnel" in Article 24 of the Labor Contract Law refers to the company manager, deputy manager, financial officer, secretary of the board of directors of a listed company, and other personnel specified in the company's articles of association as prescribed by the company law.

50. If the promoters of the manufacturers work at the counters of the rental shopping malls, the promoters shall sign a labor contract with the manufacturers, and the mall shall be jointly and severally liable for the infringement of the legitimate rights and interests of the promoters by the manufacturers.

Three. Performance and change of labor contract

51. After the implementation of the Labor Contract Law, if the labor contract is not changed in written form, if a labor dispute occurs, the content determined in the original and labor contract shall be the basis. However, the content in the original labor contract that is inconsistent with the provisions of the "Labor Contract Law" is invalid.

52. If the labor relations handling policies of state-owned enterprises are inconsistent with the Labor Contract Law, they will be in accordance with Article 14, Paragraph 2, Article 33, Article 34, and 40 of the Labor Contract Law from 2008. The provisions of Article 7 shall be implemented.

4. Termination and termination of labor contract

53. The third paragraph of Article 38 of the "Labor Contract Law" refers to "failure to pay social insurance premiums for workers in accordance with the law". Opinion 1: Refers to the employer’s act of never paying social insurance premiums; Opinion 2: Refers to the employer’s default payment of social insurance premiums; Opinion 3: Refers to the employer’s underpayment of social insurance premiums; Opinion 4: Refers to the employer The unit's failure to pay social insurance premiums in accordance with the prescribed types of insurance; Opinion 5: All the above-mentioned acts are included.

54. The employer can agree with the employee that the time for the termination of the labor contract shall be more than 30 days in advance, but it cannot agree on the liquidated damages for failure to perform the advance notice.

55. If an employee proposes to terminate the labor contract in accordance with Article 38 of the Labor Contract Law, the employer shall not pursue the employee for breach of contract damages in accordance with the provisions of the service period.

56. "Objective economic conditions" in Article 41 of the "Labor Contract Law" refers to the occurrence of force majeure or other circumstances that make it impossible to perform all or part of the terms of the labor contract, such as enterprise relocation, merger, division, and joint venture.

57. In Article 41 of the "Labor Contract Law", "cutting more than 20 employees or cutting fewer than 20 people but accounting for more than 10% of the total number of employees" means that the reduction of employees reaches this standard within three months , Should be carried out in accordance with the procedures stipulated in the Labor Contract Law.

58. When an employer reduces its staff as stipulated in Article 41 of the Labor Contract Law, the three categories of personnel that should be retained in priority are in no order.

After layoffs, the employer shall perform the priority to notify the retrenched when re-recruiting personnel. If it fails to perform the notification obligation, what legal responsibilities shall it bear? Re-recruit personnel within six months, but not prioritize recruitment What legal responsibilities shall be borne by the retrenched personnel?

59. If an enterprise has major difficulties in its production and operation, and the employee representative assembly or employee representatives discusses and decides to reduce labor remuneration, it shall not be regarded as failing to pay the labor remuneration in time.

60. If the employer has not established a trade union, it may not implement the provisions of Article 43 of the Labor Contract Law. If the employer’s termination of the employee’s labor contract complies with the law, but the labor union’s opinions are not sought, the procedures may be revised afterwards.

61. When the labor contract is terminated or terminated, the employer shall pay economic compensation in accordance with the provisions of the Labor Contract Law in addition to the one-time disability employment subsidy.

62. The wage standard for calculating economic compensation is calculated according to the wages payable by the worker. Workers whose average income in the previous 12 months were lower than the local minimum wage standard shall be paid according to the minimum wage standard.

63. When an employer terminates a labor contract in accordance with Article 40 of the Labor Contract Law, it pays an additional month's wages to the employee instead of the obligation to notify 30 days in advance in writing, the additional one-month wage standard shall refer to the Labor Contract Law The standard calculation prescribed in the third paragraph of Article 47.

64. If the wages of workers are less than three times the average monthly wages of employees in the region in the previous year announced by the high-level people’s government of the municipality or districts where the employer is located, the working period for calculating and issuing economic compensation is not subject to the 12-year limit.

If the place where the labor contract is performed is not consistent with the place where the company is registered, the wages of the workers are based on the average monthly wage standard of the employees in the place where the labor contract is performed.

65. The labor contract that exists on the date of the implementation of the Labor Contract Law is terminated after the implementation of this law, and if economic compensation is required in accordance with the law, the economic compensation will be calculated in stages. The calculation of the economic compensation before the implementation of this law shall be implemented in accordance with the Ministry of Labor [1994] No. 481, and the calculation of the economic compensation period after the implementation of this law shall be implemented in accordance with the provisions of this law.

If the labor contract is terminated after the implementation of the "Labor Contract Law", the period of calculation and payment of economic compensation will be calculated from January 1, 2008. At the same time, state-owned enterprises must also pay living allowances in accordance with the "Response to the Issue of Payment of Living Subsidies for Termination of Labor Contracts after the Abolition of the (Interim Provisions on the Implementation of the Labor Contract System by State-owned Enterprises)" (Lao She Ting Han [2001] No. 280).

5. Collective contract

66. The provisions of collective contracts do not apply to state agencies, institutions and social organizations.

VI. Labor dispatch

67. The conclusion of a labor contract by a labor dispatch unit is not subject to Article 14 Paragraph 3 of this law.

68. The labor dispatch unit shall not conclude a labor contract for the completion of certain tasks.

69. The payment of economic compensation by labor dispatching units shall be governed by Article 46 of this law.

70. If the registered capital of a labor dispatch unit is less than 500,000 yuan, after the "Labor Contract Law" is implemented, the capital should be increased to 500,000 yuan or more.

71. The labor dispatch unit shall not agree on a probation period with the laborer.

72. The labor dispatch unit established by the employing unit, whether it is holding or equity participation, must withdraw from investment before January 1, 2008.

73. Labor dispatch units shall not recruit part-time workers.

74. Does the security service company send the recruited security guards to various units to perform duties, guards, etc., do they belong to the labor dispatch stipulated in the "Labor Contract Law"?

75. What are temporary, auxiliary, and alternative jobs?

NEWS