First, they are applied to different objects.
For the labor contract, the applicable object is mainly embodied in Article 2 of the Labor Contract Law. This Law is applicable to enterprises, individual economic organizations, private non-enterprise units and other organizations (hereinafter referred to as employers) in China to establish labor relations with workers and conclude, perform, modify, dissolve or terminate labor contracts. State organs, institutions, social organizations and laborers who have established labor relations with them shall conclude, perform, modify, dissolve or terminate labor contracts in accordance with this Law.
Regarding the employment contract, its applicable object is mainly embodied in Article 2 of the Measures for the Administration of Employment Contracts of Necessary Institutions. The employment contract system of public institutions refers to the personnel management system in which public institutions and employees sign employment contracts on the basis of equality, voluntariness and consensus according to relevant national laws, regulations, rules and policies, determine the employment relationship, and clarify the rights and obligations of both parties.
Second, their employment and recruitment methods are different.
There are no strict procedural requirements for signing a labor contract. According to Article 7 of the Labor Contract Law, the employer shall establish labor relations with the employee from the date of employment. The employing unit shall establish a roster of employees for future reference. Article 8 When employing workers, the employing unit shall truthfully inform the workers of their work contents, working conditions, workplace, occupational hazards, conditions for safe production, labor remuneration and other information required by the workers; The employer has the right to know the basic information directly related to the labor contract, and the employee shall truthfully explain it.
The establishment of employment contract relationship has strict recruitment procedures. Article 7 of the "Measures" stipulates that public institutions shall set up posts in accordance with the principles of scientific rationality, streamlining and high efficiency, and determine post salaries according to relevant state regulations and the actual situation of their own units. Institutions approved by the establishment department shall establish posts and personnel quotas, and shall not exceed the approved staffing amount. Article 8 The basic procedures for employing personnel are:
(a) announced the employment position and its responsibilities, application conditions, wages and other matters;
(2) the applicant applies for employment;
(3) The employing agency conducts a preliminary examination of the qualifications and conditions of the candidates;
(four) the employing agency shall conduct examination or assessment on the candidates who have passed the preliminary examination, and select the best candidates;
(five) the employing unit is responsible for collective discussion to determine the employed personnel;
(6) The legal representative of the employing unit or its entrusted agent signs an employment contract with the employed personnel.
Three, according to the characteristics of the contract term classification is not the same.
According to Article 12 of the Labor Contract Law, labor contracts are divided into fixed-term labor contracts, non-fixed-term labor contracts and labor contracts with the completion of certain tasks as the term.
According to Article 15 of the Trial Measures for Employment Contract System of Public Institutions in Beijing, employment contracts are divided into short-term, medium-term and long-term contracts with the completion of certain work as the term. Posts with strong mobility and low technical content generally sign short-term contracts for less than 3 years; A relatively long-term contract refers to a medium-and long-term contract signed for the needs of the post or occupation; A contract whose term is to complete certain work shall be determined according to the task. The longest term of the contract shall not exceed the number of years when the candidate reaches the retirement age stipulated by the state.
Fourth, the conditions for signing a safety contract are different.
The indemnificatory contract in the labor contract is a contract from signing to retirement; The security contract of labor contract is (non-fixed-term labor contract). The signing conditions of the two are different.
For the signers of labor contracts, if they want to sign a labor contract with no fixed term, according to Article 13 of the Labor Contract Law, the employer and the employee can sign a labor contract with a fixed term through consultation. Article 14: The laborer has worked in the employing unit continuously for ten years; When the employing unit implements the labor contract system for the first time or the state-owned enterprise is restructured to conclude a new labor contract, the employee has been working in the employing unit for ten years continuously, less than ten years before the statutory retirement age; Two consecutive fixed-term labor contracts have been concluded, and the employee does not have the circumstances stipulated in Articles 39 and 40, paragraphs 1 and 2 of this Law, and the labor contract is renewed. 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.
As for the signatory of the employment contract who wants to sign an employment contract with a term of retirement, according to Article 16 of the Measures, if the employed person has worked in this unit for 25 years or continuously for 10 years, and his age is less than 10 years from the retirement age stipulated by the state, the employing unit shall sign an employment-to-retirement contract with him.
Five, the provisions of the liability for breach of contract are not the same.
As far as the labor contract is concerned, according to Article 22 of the Labor Contract Law, if a worker violates the service period agreement, he shall pay liquidated damages to the employer as agreed. The amount of liquidated damages shall not exceed the training expenses provided by the employer. The liquidated damages that the employer requires the laborer to pay shall not exceed the training expenses that should be shared for the unfinished part of the service period. Article 23 For workers who have the obligation of confidentiality, the employing unit may stipulate the non-competition clause with the workers in the labor contract or confidentiality agreement, and stipulate that after the labor contract is dissolved or terminated, the economic compensation shall be paid to the workers on a monthly basis during the non-competition period.
Regarding the employment contract, according to Article 43 of the Measures, the amount of liquidated damages shall be agreed by both parties in the employment contract. If it is not stipulated in the employment contract, but it causes calculable economic losses, the responsible person shall be liable for economic compensation according to the actual losses; Article 44 If a laborer terminates the labor contract after training funded by the employing unit, the compensation for training expenses shall be stipulated in the labor contract. If the laborer terminates the labor contract, the laborer funded by the employing unit shall bear the training penalty; If the employing unit terminates the contract, the employed personnel will not bear the training penalty.
Six, the employer can unilaterally terminate the contract conditions are not the same.
With regard to the labor contract, according to Article 39 of the Labor Contract Law, the employer may terminate the labor contract under any of the following circumstances:
(a) during the probation period, it is proved that it does not meet the employment conditions;
(two) a serious violation of the rules and regulations of the employer;
(three) serious dereliction of duty, corruption, causing great damage to the employer;
(4) The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the unit, or the employer refuses to correct it;
(5) The labor contract is invalid due to the circumstances specified in Item 1 of Paragraph 1 of Article 26 of this Law;
(6) Being investigated for criminal responsibility according to law.
Article 40 Under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an extra month's salary:
(1) The employee is sick or injured non-work-related, and cannot engage in the original job or other jobs arranged by the employer after the prescribed medical treatment period expires;
(two) the laborer is not competent for the job, and he is still not competent for the job after training or adjusting his post;
(3) The objective conditions on which the labor contract was concluded have changed greatly, which makes it impossible to perform the labor contract, and the employer and the employee cannot reach an agreement on changing the contents of the labor contract through consultation.
Article 4 1 If it is necessary to reduce more than 20 employees or less than 20 employees under any of the following circumstances, but it accounts for more than 10% of the total number of employees in the enterprise, the employer shall explain the situation to the trade union or all employees 30 days in advance, and after listening to the opinions of the trade union or employees, it may report the reduction plan to the labor administrative department:
(1) Conforming to the provisions of the Enterprise Bankruptcy Law;
(two) serious difficulties in production and operation;
(three) the enterprise has changed production, major technological innovation or adjustment of business mode, and it still needs to reduce staff after changing the labor contract;
(4) Other major changes have taken place in the objective economic situation on which the labor contract was concluded, which makes it impossible to perform the labor contract.
In terms of labor contract, the employer may unilaterally terminate the labor contract at any time if the employee employed according to Article 27 of the Measures is under any of the following circumstances:
(a) does not meet the requirements of this post during the probation period, and does not agree to adjust the post;
(2) Continuous absenteeism 10 working days or accumulated absenteeism of more than 20 working days in 1 year;
(3) Going abroad or exceeding the time limit for going abroad without the consent of the employing unit;
(four) in violation of work regulations or operating rules, accidents, or dereliction of duty, resulting in serious consequences;
(five) seriously disrupting the work order, and the work of the user unit and other units can not be carried out normally;
(6) Being sentenced to fixed-term imprisonment or above, being put in prison for execution, or being reeducated through labor;
(seven) other circumstances stipulated by national laws and regulations.
Article 28 Under any of the following circumstances, the employer may unilaterally terminate the labor contract, but it shall notify the dismissed employee in writing 30 days in advance:
(a) the employee is sick or injured at work, and cannot engage in the original work or other work arranged by the employer after the medical treatment expires;
(2) The employed person fails to pass the annual assessment or the employment period assessment, and does not agree with the employer to adjust the post, or fails to pass the assessment after arriving at the new post;
(3) Significant changes have taken place in the objective circumstances on which the labor contract was concluded, which makes it impossible to perform the labor contract, and the parties concerned cannot reach an agreement on changing the labor contract through consultation, or the workers do not obey other arrangements.
Seven, terminate the contract compensation standards are not the same.
Compensation standard for termination of labor contract: According to Article 47 of the Labor Contract Law, the economic compensation shall be paid according to the standard that the laborer will be paid one month's salary for each full year of working in this unit.
For more than six months but less than one year, it shall be counted as one year; If it is less than six months, economic compensation of half a month's salary shall be paid to the workers. If the monthly salary of workers is three times higher than the average monthly salary of local workers announced by the people's government of the municipality directly under the central government or the city divided into districts where the employer is located, the standard for paying economic compensation to workers is three times the average monthly salary of workers, and the longest period for paying economic compensation to workers shall not exceed 12 years. The monthly salary mentioned in this article refers to the average salary of workers in the twelve months before the dissolution or termination of the labor contract.
Compensation standard for termination of employment contract: According to Article 45 of the Measures, the dismissed person shall pay his/her average monthly salary 1 month for every year he/she has worked in this unit. If the average monthly salary is more than 3 times in this city's institutions, it shall be calculated as 3 times.
Eight, the economic compensation for the termination of the contract is different.
With regard to the dissolution of the labor contract, the employer shall pay economic compensation to the employee under any of the following circumstances as stipulated in Article 46 of the Labor Contract Law:
(5) Terminating a fixed-term labor contract in accordance with the provisions of the first paragraph of Article 44 of this Law, except that 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 it;
(6) The labor contract is terminated in accordance with the provisions of Item 4 and Item 5 of Article 44 of this Law;
There are no relevant provisions on economic compensation for the termination of labor contracts.
Nine, the two employment management is different.
After the signing of the labor contract, the employer's management of employees is mainly based on the labor contract signed by both parties.
Regarding the employment contract, the employer's management of employees is based on Article 46 of the Measures in addition to the labor contract signed by both parties. The employing unit shall strengthen the post-employment management and assessment of the employed personnel in accordance with the employment contract. The assessment must adhere to the principle of objectivity and fairness, and implement the method of combining the leadership assessment with the mass appraisal, and unifying the assessment results with the assessment attitude.
The assessment content should meet the actual needs of the post. The assessment results are divided into four grades: excellent, qualified, basically qualified and unqualified. On the basis of the opinions of the masses and the opinions of the leaders of the employed personnel, the employing organization shall put forward the opinions of the assessment grades and report them to the responsible personnel of the employing unit for collective decision.
Article 47 The employing unit shall take the assessment results of the employed personnel as the basis for reappointment, dismissal, post adjustment, post promotion and demotion, salary and rewards and punishments.
If the employment contract and labor contract are improperly treated, you can defend your rights through legal channels, and you can consult a lawyer for details.