Key words: labor contract, labor contract law of migrant workers, signing of labor contract of migrant workers, legitimate rights and interests of migrant workers.
I. Definition, Function and Nature of Labor Contract
(1) Definition of labor contract.
Labor contract is also called labor contract and labor agreement, and it is also called employment (employment) contract in some countries. It refers to the agreement between the laborer and the employer to determine the labor relationship through consultation according to law and reach the rights and obligations of both parties. According to the agreement, workers join enterprises, individual economic organizations, institutions, state organs, social organizations and other employers, become a member of the unit, undertake certain types of jobs, posts or positions, and abide by the internal labor rules and other rules and regulations of the unit; The employing unit shall timely arrange the employed laborers to work, pay their remuneration according to the quantity and quality of labor provided by the laborers, and provide necessary working conditions according to the provisions of relevant labor laws and regulations and the stipulations of labor contracts, so as to ensure that the laborers enjoy labor protection, social security, welfare and other rights and interests. [ 1]
(B) the role of the labor contract.
The labor contract clearly stipulates the labor rights, obligations and responsibilities between the laborer and the employer, which is both a guarantee and a constraint for both parties to the contract, which is helpful to improve the consciousness of both parties to perform the contract and urge both parties to correctly exercise their rights and strictly perform their obligations. Therefore, the conclusion and performance of labor contracts are conducive to avoiding or reducing the occurrence of labor disputes and stabilizing labor relations. At the same time, even if a labor dispute occurs, it can be handled according to the terms of the contract, which is conducive to the settlement of the dispute. As early as 1994, China promulgated the Labor Law, which fully affirmed the labor contract system and provided a basic legal basis for all employees to implement labor contracts. Article 16 of the Labor Law stipulates: "A labor contract is an agreement between a laborer and an employer to establish a labor relationship and clarify the rights and obligations of both parties. A labor contract shall be concluded when establishing labor relations. " [2]
(3) the nature of the labor contract.
1. The labor contract has dual functions. That is, both parties to the labor contract have obligations, which are embodied as follows: the laborer has the obligation to complete the work task and abide by the internal labor rules and other rules and regulations of the unit; The employing unit has the obligation to pay labor remuneration to workers and provide safe and hygienic working conditions, social insurance, welfare benefits and other protective conditions.
2. The labor contract is paid. In other words, both parties to the labor contract have specific material rewards when performing their obligations, which are embodied as follows: workers get wages and other benefits on the condition of providing labor; Employers obtain the use of labor resources on the condition of paying wages and remuneration, so as to obtain corresponding labor results.
3. The labor contract is chaotic. That is, as long as both parties have the same meaning, the labor contract can be established. However, in practice, some employers require workers to pay different amounts of "deposit", "deposit" and "mortgage" when concluding labor contracts with them, which is contrary to the promise of labor contracts and relevant laws in China.
Second, the significance of migrant workers' labor contract legislation
At present, the state has included the labor contract law in the legislative plan. On the basis of investigation and demonstration, we should formulate the labor contract law, improve the procedures for signing labor contracts, the duration of contracts, the procedures for changing and canceling contracts, and the economic layoffs of enterprises, and increase the punishment for not signing labor contracts and infringing on the legitimate rights and interests of employees. This law is a special legislation aimed at adjusting the legal relationship between all workers and employers in signing labor contracts. However, in view of the repeated violations of the legitimate rights and interests of migrant workers, I think it is necessary to put the legislation of migrant workers' labor contract law on the agenda, standardize the labor contract relationship between migrant workers and employers from the legislative point of view, and lay a solid legal foundation for the majority of migrant workers to protect their rights according to law.
A few years after the implementation of the Labor Law, the purpose of formulating the Labor Contract Law for Migrant Workers is to promote the concrete implementation of the principles of the Labor Law in practice. However, it is not a simple refinement of the content of labor law, but an extension and development of labor law on the premise of accurately implementing the principles of labor law. I think the labor law should be the legal basis of the labor contract law for migrant workers. Because the Labor Law is the basic labor law of our country, its important position is unshakable, and the labor contract system is an important part of the labor legal system. In the whole labor legal system, the labor contract is the same as employment, labor remuneration, social insurance and other contents, and the relationship with the basic labor law is the relationship between the sub-law and the parent law.
(A) the definition of migrant workers.
Migrant workers refer to peasant contract workers, that is, workers who are employed by enterprises and institutions, have agricultural registered permanent residence, and sign labor contracts with employers. 199 1 the State Council's "regulations on employing farmers' contract workers in enterprises owned by the whole people" issued on July 25th, defines migrant workers as: "farmers' contract workers employed by enterprises refer to workers who have been employed from farmers for more than one year and implemented the labor contract system, including regular rotation workers who have been recruited from farmers".
As can be seen from the above definition, the prerequisite for the formation of labor employment relationship between migrant workers and employers is that both parties must sign labor contracts. However, in practice, there are few examples of employers actually signing labor contracts with migrant workers. This makes migrant workers lack strong evidence when they have labor disputes with employers, which is not conducive to safeguarding their legitimate rights and interests.
(B) the employment status of migrant workers in China
With the establishment of China's socialist market economic system, the restrictions of agriculture and non-agricultural registered permanent residence on employment have gradually faded, and China's population mobility has become more active than ever. At present, more than 1 100 million rural people have entered cities and towns to work. Migrant workers are emerging workers whose main source of income is wages. They have become new members and an important part of workers in China. However, it is incompatible with the phenomenon that the legitimate rights and interests of migrant workers have been repeatedly violated. The illegal acts of migrant workers that are explicitly prohibited by comprehensive national laws and regulations and "exposed" by news media mainly include: ① enterprises do not sign labor contracts with migrant workers; (2) default and deduction of wages of migrant workers; ③ The phenomenon of "cheap female workers" exists seriously; (4) Migrant workers lack personal safety guarantee; Discrimination against migrant workers needs to be reversed. [ 1]
In real life, many employers, especially some private enterprises, foreign-invested enterprises and individual economic organizations, simply do not sign labor contracts with migrant workers, resulting in a large number of "factual labor relations" and "hidden employment". However, China's law enforcement departments can't form unified handling rules for a large number of factual labor relations disputes without written form, some can only mediate forcibly, and some simply refuse to accept them. This is obviously not conducive to the stability and development of labor relations in China.
Case 1:
Du Mou, a farmer from Huaiyang, Henan Province, and his 47 fellow villagers, introduced by fellow villagers or relatives, went to the construction site of the University Town of the Fourth Construction Company of Henan Province after the Spring Festival in 2004. At that time, they went to the construction site to work, and no one signed a labor contract with them at all, and they didn't know that they had to sign a contract to work. But after they worked for more than 80 days, a contractor named Zhang suddenly disappeared with their salary. Because the provincial fourth construction company said that it had paid the contractor, the employer was not responsible for how to pay the salary, so they had to wander the streets from the construction site. Du Mou said that they had worked hard. Everyone earned more than 800 yuan and flew away with wings. They don't even know which department to look for. After coming out of the construction site, they sleep on the concrete floor of Zijingshan overpass square every day. They chew dry steamed bread and drink cold water to make a living every day. Occasionally people go to the streets to find some odd jobs to earn some living expenses. Now they don't even have a fare to go home, so they can only wait for a miracle in the street. Because of this blow, many of them lost the confidence to continue working.
According to relevant surveys, agriculture only accounts for 0.6% of the occupations of urban migrant workers, and the rest are services, construction and manufacturing. The working environment of migrant workers is harsh, and the phenomenon of being deducted or owed wages without reason is very serious, especially in coastal areas and labor-intensive industries and private enterprises that use more migrant workers. Every Spring Festival holiday, migrant workers sometimes use extreme means such as jumping off a building and breaking their fingers to get back their unpaid wages in major cities.
However, if the vast number of migrant workers can sign legal and standardized labor contracts with employers at the beginning of their work, once their legitimate rights and interests are violated, they can take up legal weapons, safeguard their rights and interests through legal channels, and investigate the legal responsibility of illegal units. In the long run, the bad social phenomenon that the rights and interests of migrant workers are repeatedly violated will be effectively curbed, and China's labor market will gradually develop in a healthy and orderly direction.
It has been ten years since the promulgation of the Labor Law. At present, urban workers working in large and medium-sized state-owned enterprises and most economic organizations and institutions have basically realized the full contract system. However, among migrant workers, few can really sign labor contracts with employers, which makes the labor disputes between migrant workers and employers more difficult to solve.
(3) Some incorrect views that restrict migrant workers from signing labor contracts.
At present, both sides of labor relations have some opinions and practices, that is, workers think that it is a labor buyer's market now, and if employers force them to sign labor contracts with them, it may be difficult to find suitable jobs as a result. Moreover, under the condition of market economy, a person with working ability can't survive without work and labor income. To put it another way, if you sign a labor contract with the employer, you will also form a constraint on yourself, which is not conducive to re-choosing a job in the future. Therefore, for the convenience of workers, in order to find jobs as soon as possible, and in order to leave their jobs in their hands for the time being, many people give up their rights.
On the other hand, in order to reduce their responsibilities and avoid their obligations, employers often do not take the initiative to sign labor contracts with workers. Once the laborer has such a request, he will refuse or delay or even dismiss for various reasons and choose another employee.
Among the majority of migrant workers, the signing of labor contracts has not attracted enough attention. They think that migrant workers are more mobile and it is difficult to find a job. Even if you find a job, it may not last long, and there is no need to sign a labor contract at all. Besides, it doesn't matter whether they have other social insurance and welfare benefits as long as they can get the wages they deserve. Anyway, they still have land at home, so they can go home and farm if they have the strength. In addition, we have already discussed the conditions with the employer before we started working. Is this an oral labor contract?
(D) the significance of signing labor contracts between migrant workers and employers.
First, the labor contract is the guarantee for workers to realize their labor rights.
Labor right is the most basic right given to workers by law, and it is the basis of all specific labor rights of workers. Without a job, it is impossible for workers to enjoy the right to labor remuneration, rest and vacation, and labor safety and health protection. Even if the right to work cannot be realized, it will endanger the survival of workers. Therefore, the right to work is the basis of citizens' right to exist. As new laborers, migrant workers certainly enjoy the same labor rights as other laborers.
Second, the labor contract is a favorable weapon for migrant workers to safeguard their legitimate rights and interests.
In the labor contract, migrant workers and employers can make detailed and complete agreements on related matters, and make agreements that are as beneficial to migrant workers as possible in terms of working conditions, labor remuneration, social insurance and welfare benefits. , in the case of not less than the minimum standards prescribed by national laws, you can also agree on the responsibility for violating the labor contract. Once the employer violates the labor contract, migrant workers can request judicial or administrative relief according to the provisions of the labor law and labor contract.
Third, concluding a written labor contract is conducive to safeguarding the legitimate rights and interests of the employer.
Under the market economy, the labor force enters the labor market as a commodity, and the employer and the employee sign labor contracts through two-way selection. The employing unit absorbs the laborers it needs to enter the unit through the labor contract, and the laborers must work for the employing unit within the time limit stipulated in the contract. In this process, in order to attract outstanding workers, employers will improve their remuneration and treatment, and even invest in training workers. Therefore, it is necessary and right for the employer to stipulate in the labor contract the responsibilities that the laborer should bear when the other party violates the law or the contract, so as to protect the legitimate rights and interests of the employer. These specific contents need to be agreed in detail by employers and migrant workers in written labor contracts. Labor contract is not only a favorable weapon for migrant workers to protect their legitimate rights and interests, but also a magic weapon to protect the economic interests of employers. Labor contract users and migrant workers are win-win, migrant workers can make the best use of their talents, and employers can also make the best use of their talents. The labor contract makes the labor force and the means of production more closely combined, improves the labor productivity and promotes the progress of the whole society.
Fourth, concluding a written labor contract can reduce or prevent the occurrence of labor disputes.
After migrant workers sign labor contracts with employers, the rights and obligations of both parties are clear, and employers and workers must also try their best to fulfill their obligations to prevent the occurrence of liability for breach of contract, thus reducing the occurrence of labor disputes. Even if there is a dispute, because the rights and obligations stipulated in the contract are clear, the relevant departments can quickly judge the responsible subject and composition of labor disputes, and their disputes can be easily resolved, thus reducing the cost of solving labor disputes. As we all know, China is a big agricultural country with an agricultural population of nearly one billion. With the rapid development of socialist modernization in China, more and more farmers will be liberated from heavy agricultural labor. In order to improve their quality of life, they will inevitably move to cities, and will gradually transition to secondary and tertiary industries, and the number of migrant workers will also increase rapidly. At that time, if there is no standardized special legislation to protect the legitimate rights and interests of migrant workers, where can we start with the rule of law? Didn't our socialist legal system construction become a slogan? To sum up, it is urgent to draft, promulgate and implement the Labor Contract Law for Migrant Workers in order to make up for the legislative gap in this field in China as soon as possible.
Third, the formulation of the labor contract law for migrant workers must be based on the labor law.
Labor law is the basic labor law in China. Therefore, the formulation of the labor contract law of migrant workers must be based on the labor law, and follow the provisions of the labor law on the procedures for signing, changing and canceling labor contracts and the legal liability for breach of contracts. Then, on this basis, formulate relevant regulations according to the characteristics of migrant workers.
Under the condition of market economy, concluding a labor contract is an effective way to establish labor relations. Therefore, the standardization and legalization of labor contracts should be strengthened to ensure the coordination and stability of labor relations. I believe that both urban workers and migrant workers should follow the principle of concluding labor contracts when signing labor contracts with employers, that is, Article 17 of the Labor Law stipulates that "the conclusion and modification of labor contracts should follow the principle of equality, voluntariness and consensus, and shall not violate the provisions of laws and administrative regulations". Only under the premise of following these three basic principles can the signed labor contract be legal and protected by law, otherwise, the labor contract signed by both parties is invalid.
In real life, some unscrupulous self-employed, in order to maximize profits, do everything possible to reduce labor costs, and even take harsh measures to force migrant workers to engage in heavy labor and restrict their personal freedom, so that the historical tragedy of "bonded labor" will be staged again in the new socialist era.
Case 2:
At the beginning of 2003, a young farmer who lives in Xingyang County, Henan Province, came to Zhengzhou to work alone because of his poor family. He wants to earn some money by working hard to support his family. Unexpectedly, when I first arrived at Zhengzhou Railway Station, I was forcibly pulled into a van by several strangers and changed trains many times on the way. Finally, he was taken to an individual brick kiln factory in the suburb of Weihui City, and his suffering began inexplicably. The young man, together with a dozen other workers, gets up at four o'clock every morning and starts to work. He can't rest until ten in the middle of the night. They all do heavy manual work and have no labor protection conditions at all. They sleep on the concrete floor covered with straw, usually two or three people use a quilt; They can only eat two meals a day, and they are all dried steamed bread, pickles and vegetable soup, not to mention any nutrition. Every day, if they relax a little during childbirth, they will attract sticks and be guarded for about 24 hours, even going to the toilet. Getting paid on time is a luxury for them.
Finally, one day, the young man escaped from the kiln factory while the supervisor was not paying attention. In order to avoid the pursuit of the supervisor, he hid in the haystack of a nearby village until late at night, and then continued on his way. In this way, he walked hungry for three days and finally returned to his hometown where he missed day and night, and reported the case to the local authorities. Through multi-party coordination, the young man led the law enforcement officers of the labor inspection department of Weihui City to find this kiln factory, rescued other tortured migrant workers, and severely punished the unscrupulous kiln factory operator according to law.
It can be seen that only when both parties to labor relations sign labor contracts on the premise of equality, voluntariness and consensus can the phenomenon of "bonded labor" be put an end to.
In addition, the labor contract of migrant workers must also have the statutory provisions stipulated in the labor law, namely, the term of the labor contract, work content, labor protection and working conditions, labor remuneration, labor discipline, conditions for termination of the labor contract, and responsibilities for violating the labor contract.
Four. Legislative suggestions on the labor contract law of migrant workers
(1) Clearly identify the factual labor relations.
Factual labor relations is a thorny issue in the implementation of laws and regulations related to labor contracts. This phenomenon often appears in a large number of labor dispute cases between migrant workers and employers, which often makes law enforcers at a loss. The so-called factual labor relationship refers to the fact that the employer and the employee reach an oral agreement on certain labor rights and obligations, forming a factual labor employment relationship in which the employee provides labor to the employer and the employer pays labor remuneration to him. It is an extremely unstable labor relationship. Because the rights and obligations of both parties are not clearly defined in the written contract, it often leads to chaotic labor relations and frequent labor disputes, causing unnecessary losses to the society and both parties. In particular, labor dispute cases caused by factual labor relations often become difficult cases for labor dispute handling organs.
China's "Labor Law" does not recognize the legal effect of oral labor contract, so the factual labor relationship is invalid from the legal point of view. As for whether factual labor relations can be classified as labor contracts in civil law, that is, whether disputes between workers and employers can be treated as labor contracts, I think it is unreasonable to characterize factual labor relations as labor contracts. Because the most significant difference between factual labor relations and labor contract relations lies in whether there is administrative subordination and identity subordination between the two sides. Although there is no written labor contract between the employee and the employer in actual labor relations, in fact, the employee has become a member of the employer, abides by the employer's labor discipline and rules and regulations, and obeys the employer's command and management. Workers are subordinate to the employer in their identity, that is, they are a member of the employer and are controlled by the employer. However, the labor contract does not require the laborer to become a member of the employing unit (including private and individual units) that pays him labor remuneration, and to accept the command and management of the payer in the labor process. It only emphasizes the payment of labor results, but not the realization of labor process.
In the usual judicial practice, if the factual labor relationship is regarded as invalid labor contract relationship, it is undoubtedly not conducive to dispute resolution. Therefore, I believe that it should be clearly stipulated in the labor contract law of migrant workers that the main body of responsibility for factual labor relations should be the employer, and the employer should bear corresponding legal responsibilities. If losses are caused to migrant workers, they shall be liable for compensation. Because, it is precisely because the employer did not sign a standardized labor contract with the migrant workers it hired that the factual labor relationship appeared.
(2) The contents of migrant workers' labor contracts should be different from those of urban workers.
Due to the existence of agricultural and non-agricultural household registration categories in China, migrant workers and urban workers cannot enjoy the same treatment in some aspects, such as food subsidies and medical insurance. Therefore, the contents of migrant workers' labor contracts cannot be exactly the same as those of urban workers, and the main differences should be reflected in the following aspects:
1. Term of labor contract and probation period.
The term of the labor contract, that is, the beginning and ending time of the labor contract, is also the effective time of the rights and obligations of both parties stipulated in the labor contract. According to the employment characteristics of migrant workers, the term of labor contract should be flexible, but generally it should be no less than one year. In some special industries, such as construction industry, the labor contract period of migrant workers can be limited to the specific construction period of the project. According to the Ministry of labor "on the implementation of
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