In today's society, the system plays an increasingly important role. The system can let us know what to do and what not to do, punish evil and promote good, and safeguard fairness. What systems have you been exposed to? The following is a full-text interpretation of the Regulations on Personnel Management of Public Institutions, which I have carefully compiled, hoping to help everyone.
Chapter I General Principles
Article 1 These Regulations are formulated in order to standardize personnel management in public institutions, safeguard the legitimate rights and interests of staff in public institutions, build a high-quality staff team in public institutions and promote the development of public undertakings.
[Lawyer's Interpretation] Compared with the Notice on Opinions on Trial Appointment System in Public Institutions (No.35 [2002] of the State Council), the Regulations on Personnel Management in Public Institutions (hereinafter referred to as the Regulations) clearly put forward the legislative purpose of "protecting the legitimate rights and interests of staff in public institutions". It is of positive significance to replace the previous expression of "protecting the legitimate rights and interests of units and employees and promoting social stability". At the same time, we should pay attention to the "personnel management" relationship stipulated in the "Regulations", that is, the employees openly recruited by public institutions and included in the establishment management are under the jurisdiction of the "Regulations"; This provision does not apply to employees who have labor relations who have signed labor contracts with institutions, but the relevant provisions such as the Labor Contract Law should be fully applied.
Article 2 Personnel management in public institutions shall adhere to the principle that the Party manages cadres and talents, and comprehensively and accurately implement the principles of democracy, openness, competition and merit selection.
The state implements classified management for the staff of public institutions.
[Lawyer's Interpretation] The change from the principle of "openness, equality, competition and merit" to the principle of "democracy, openness, competition and merit" means that the government hopes to strengthen the democratic management of employees in public institutions and guarantee their right to participate, supervise and know. Therefore, institutions should perform democratic procedures when formulating rules and regulations and deciding on major issues involving the interests of employees.
Article 3 The comprehensive personnel management department of central institutions shall be responsible for the comprehensive personnel management of public institutions throughout the country.
The comprehensive personnel management department of local institutions at or above the county level is responsible for the comprehensive personnel management of institutions in this area.
The competent department of public institutions shall be specifically responsible for the personnel management of their subordinate institutions.
[Lawyer's Interpretation] This article clarifies the responsibilities and division of labor in the management of public institutions.
Fourth institutions should establish and improve the personnel management system.
When a public institution formulates or modifies the personnel management system, it shall listen to the opinions of the workers through the workers' congress or other forms.
[Lawyer's Interpretation] This article is consistent with Article 2 of the Regulations, requiring institutions to formulate and modify systems, and should listen to opinions through the workers' congress or other forms. However, slightly different from Article 4 of the Labor Contract Law, there is no expression of "equal consultation and determination", which means that the workers' congress may only be a formal democracy.
Chapter II Post Setting
Article 5 The State establishes the post management system of public institutions and determines the post categories and grades.
[Lawyer's Interpretation] This article clarifies that public institutions are managed by posts, not by identity.
Article 6 A public institution shall, according to its duties, tasks and work needs, set up posts in accordance with relevant state regulations.
The post should have a clear name, responsibilities, tasks, work standards and qualifications.
[Lawyer's Interpretation] This article requires institutions to clarify the job name, responsibilities, work standards and qualifications, so as to support the probation management and assessment management of employees in institutions, and point out the direction of market-oriented reform of institutions.
Article 7 When a public institution formulates a post setting plan, it shall report it to the comprehensive personnel management department for the record.
[Lawyer's Interpretation] Whether the post setting scheme of public institutions should go through democratic procedures, the author believes that with reference to the original draft and Article 2 of these regulations, the opinions of employees should be listened to.
Chapter III Post Open Recruitment and Competitive Recruitment
Article 8 Newly-hired personnel of public institutions shall be openly recruited for the society. Except for those who are placed according to national policies, appointed by superiors according to personnel management authority, and classified positions.
[Lawyer's Interpretation] This article stipulates that the basic principle of employing people in public institutions is "open recruitment", and "superior appointment" is only an exception.
Ninth institutions to recruit staff in accordance with the following procedures:
(1) Formulating an open recruitment plan;
(2) Announcing recruitment information such as recruitment positions and qualifications;
(3) Examining the qualifications of candidates;
(4) Examination and inspection;
(5) physical examination;
(6) Publicizing the list of persons to be employed;
(seven) to conclude an employment contract and go through the employment procedures.
[Lawyer's Interpretation] This article stipulates the basic principles of open recruitment, in which the procedure of "filing or submitting for approval according to regulations" in the original draft is deleted, which weakens supervision and puts more emphasis on market-oriented management.
Tenth institutions have job candidates need to compete for posts, in accordance with the following procedures:
(a) to formulate a competitive employment plan;
(two) in the unit announced competitive positions, qualifications, employment period and other information;
(3) Examining the qualifications of competitors;
(4) evaluation;
(5) Publicizing the list of persons to be employed by the unit;
(6) Handling the appointment procedures.
[Lawyer's Interpretation] This article stipulates the procedures for public institutions to compete for posts. Compared with the draft, the procedure is more transparent, requiring institutions to formulate a "competitive employment plan" and publish relevant information, which is conducive to putting an end to internal operations.
Article 11 The staff of public institutions may communicate in accordance with the relevant provisions of the state.
[Lawyer's Interpretation] Internal communication, including post rotation and attachment training, has created conditions for the optimal allocation of human resources among institutions.
Chapter IV Labor Contract
Article 12 The term of the employment contract concluded between a public institution and its staff is generally not less than 3 years.
[Lawyer's Interpretation] This article stipulates the general term of employment contracts, and cancels the provision in the original draft that "a contract with strong liquidity can be concluded for less than three years", which is conducive to the career stability of staff in public institutions. At the same time, the expression of "general" means that there is meaningful autonomy in practice.
Thirteenth staff and institutions for the first time to conclude the employment contract for three years, the probation period is 12 months.
[Interpretation by lawyers] First-time employees mainly refer to fresh college graduates, with a probation period of 12 months).
Article 14 If a staff member of a public institution has worked continuously in this unit for 10 years and is less than 10 years from the statutory retirement age, and proposes to conclude an employment-to-retirement contract, the public institution shall conclude an employment-to-retirement contract with him.
[Lawyer's Interpretation] Compared with Guo Ban Fa [2002] No.35, this article narrows the scope of application of long-term contracts, and excludes the situation that "this unit can request to conclude a long-term contract after working for 25 years". Objectively, it also conforms to the direction of market-oriented reform. The employment-to-retirement contract referred to in this article is equivalent to the open-ended labor contract referred to in the Labor Contract Law. However, there may be no fixed provisions for continuous work 10 years, signing fixed-term contracts twice in a row, and contracts exceeding 1 year referred to in Article 14 of the Labor Contract Law.
Article 15 If the staff of a public institution is absent from work for more than 15 working days, or the cumulative absenteeism for more than 30 working days in 10 year, the public institution may terminate the employment contract.
[Interpretation by lawyers] Previously, the staff of public institutions "were absent from work for more than 10 working days in a row or for more than 20 working days in 1 year" and could be dismissed unilaterally. This article has been increased to 15 working days, which seems to reduce the requirements for employees. Of course, if institutions put forward higher requirements through democratic procedures (such as absenteeism 10 working days), the law will not prohibit it. What this article should apply is that it can be operated without rules and regulations.
Article 16 If a staff member of a public institution fails to pass the annual examination and refuses to adjust his post, or fails to pass the annual examination for two consecutive years, the public institution may terminate the employment contract with a written notice 30 days in advance.
[Lawyer's Interpretation] This article is similar to Article 40 of the Labor Contract Law. The difference is that enterprises can independently determine the assessment cycle, and the assessment of public institutions must be based on years, which is equivalent to dismissing employees if they are incompetent, and it must be delayed for more than two years. In addition, 30 days in advance is a legal obligation, and there is no substitute for payment notice.
Article 17 The staff of a public institution may terminate the employment contract by giving a written notice to the public institution 30 days in advance. However, unless otherwise agreed by both parties to terminate the employment contract.
[Lawyer's Interpretation] No.201235 of the State Council originally stipulated that "if the employee proposes to terminate the labor contract and fails to reach an agreement with the employer, the employee shall stick to his normal work and continue to perform the labor contract; After 6 months, if the employer fails to negotiate, it may unilaterally terminate the employment contract. This regulation requires the laborer to unilaterally terminate the contract in advance and must negotiate with the employer; Otherwise, if it is proposed again after 6 months and no consensus can be reached, the employment contract can only be unilaterally terminated. " This means that the company can delay the employee for at least 6 months. This article clearly stipulates that employees can be dismissed 30 days in advance, which is of positive significance with reference to the provisions of the Labor Contract Law on resignation. However, this article adds an "exception clause", that is, "unless otherwise agreed", which ostensibly gives both parties room for autonomy. However, in reality, most units have the final say. If the contract stipulates that resignation must be approved before leaving, whether it is disguised to restrict employees' resignation and whether the overlord clause is effective remains to be experienced in judicial practice.
Article 18 If a staff member of a public institution is dismissed, the employment contract shall be terminated.
[Lawyer's Interpretation] In the personnel management of public institutions, dismissal is regarded as an administrative punishment. The inevitable result of this punishment is to terminate the employment contract.
Nineteenth since the date of dissolution and termination of the employment contract according to law, the personnel relationship between the institution and the person whose employment contract is dissolved or terminated is terminated.
[Lawyer's Interpretation] This article makes it clear that the termination date of the employment contract is the same as the termination date of the personnel relationship. In practice, if the formalities are not completed, the personnel relationship will not continue.
Chapter V Evaluation and Training
Twentieth institutions shall, according to the job responsibilities and tasks agreed in the employment contract, conduct a comprehensive assessment of the staff, focusing on the assessment of work performance. The evaluation shall listen to the opinions and comments of the client.
[Lawyer's Interpretation] Compared with the draft, this article adds the expression that "the opinions and evaluations of the clients should be listened to", which means that the assessment should protect the employees' "right to know and defend oneself" and help protect the legitimate rights and interests of employees in industrial units.
Twenty-first assessment is divided into peacetime assessment, annual assessment and employment assessment.
The annual assessment results are divided into excellent, qualified, basically qualified and unqualified grades, and the employment assessment results are divided into qualified and unqualified grades.
[Lawyer's Interpretation] This article defines three assessment methods and assessment result grades.
Twenty-second assessment results as the basis for adjusting the post and salary of staff in public institutions and renewing the employment contract.
[Lawyer's Interpretation] Compared with the draft of "annual assessment as the basis for wage adjustment", this article includes all the assessment results into the basis for post and wage adjustment, and the application of assessment results is more comprehensive.
Twenty-third institutions shall, according to the requirements of different positions, prepare staff training plans and conduct classified training for staff.
Staff should participate in pre-job training, on-the-job training, post-transfer training and special training according to the requirements of their units to complete specific tasks.
[Lawyer's Interpretation] This article clarifies the basic principles of graded distribution training and the specific ways of training. However, the expression "training and academic achievements are included in staff assessment tax" in the original draft was deleted.
Twenty-fourth training funds in accordance with the relevant provisions of the state.
[Interpretation by lawyers] Compared with the draft, the statement that "if a public institution provides special training fees to train staff, it can stipulate the service period and the liability for breach of contract in the employment contract" has been deleted. If both parties have agreed on the service period and the liability for breach of contract, the author thinks that the agreement is still valid without violating the prohibitive provisions of laws and regulations.
Chapter VI Reward and Punishment
Twenty-fifth employees or collective institutions in any of the following circumstances, reward:
(a) long-term service at the grassroots level, dedication, outstanding performance;
(two) outstanding performance in the implementation of important national tasks and response to major emergencies;
(three) there are major inventions and technological innovations in the work;
(4) Having made outstanding contributions in cultivating talents and spreading advanced culture;
(5) Having made other outstanding contributions.
[Lawyer's Interpretation] The circumstances that should be rewarded as stipulated in this article.
Twenty-sixth rewards adhere to the principle of combining spiritual rewards with material rewards and giving priority to spiritual rewards.
[Lawyer's Interpretation] This article stipulates the reward method.
Twenty-seventh awards are divided into commendation, merit, meritorious service and honorary title.
[Lawyer's Interpretation] This article stipulates the form of spiritual reward.
Twenty-eighth institutions staff have one of the following acts, be punished:
(a) damage to the national reputation and interests;
(2) Dereliction of duty;
(three) to seek illegitimate interests by taking advantage of work;
(four) squandering state-owned assets;
(five) a serious violation of professional ethics and social morality;
(six) other serious violations of discipline.
[Lawyer's Interpretation] This article stipulates the circumstances of punishment. For the punishment of employees who "seriously violate professional ethics and social morality", the precondition of "causing adverse effects" is deleted in the draft, which reflects the society's concern for professional ethics and social morality. For example, gambling may lead to effective punishment.
Twenty-ninth sanctions are divided into warning, demerit recording, demotion or dismissal and expulsion.
The penalty period is: warning, 6 months; Records, 12 months; Demotion or dismissal, 24 months.
[Lawyer's Interpretation] This article stipulates the types and effective period of punishment.
Thirtieth staff with clear facts, conclusive evidence, accurate qualitative analysis, proper handling, legal procedures and complete procedures shall be punished.
[Lawyer's Interpretation] This article stipulates the specific requirements for punishment given by public institutions, and requires both "entity and procedure".
Thirty-first staff members were dismissed, and there was no violation of discipline during the disciplinary period. After the expiration of the punishment, the punishment decision unit cancels the punishment and notifies me in writing.
[Lawyer's Interpretation] After the expiration of the validity period of punishment, the punishment unit shall lift the punishment.
Chapter VII Wages, Welfare and Social Insurance
Article 32 The state establishes a wage system for public institutions that combines incentives and constraints.
The salary of staff in public institutions includes basic salary, performance salary and allowance.
The salary distribution of public institutions should be combined with the characteristics of different industries and institutions, reflecting factors such as job responsibilities, work performance and actual contribution.
[Lawyer's Interpretation] This article stipulates the salary structure of public institutions, namely "basic salary, performance salary and allowance", which paves the way for the salary reform of public institutions in the future.
Article 33 The State establishes a mechanism for the normal wage increase of staff in public institutions.
The salary level of staff in public institutions should be coordinated with the development of national economy and adapt to social progress.
[Lawyer's Interpretation] This article stipulates the basic principles of wage growth in public institutions. At present, mass incidents (such as teachers' groups) surrounding wage growth are common.
Thirty-fourth staff of public institutions enjoy the welfare benefits stipulated by the state.
Institutions implement the working hours system and vacation system stipulated by the state.
[Lawyer's Interpretation] This article clarifies that the staff of public institutions should fully apply the relevant provisions of the labor law in the working-hour leave system, such as the statutory annual leave and maternity leave stipulated in the Regulations on Paid Annual Leave for Employees and the Special Provisions on Labor Protection for Female Employees. There is a long-standing dispute about whether employees in public institutions should pay overtime pay for overtime work. For example, Zhejiang Province stipulates that "public institutions are generally not allowed to extend working hours or arrange overtime work. If it is really necessary to extend working hours due to work needs or arrange overtime work on legal holidays, unless there are other special provisions, overtime pay shall be made up or paid in turn." The author believes that if overtime does occur, overtime should be paid in accordance with the Labor Law.
Thirty-fifth institutions and their staff shall participate in social insurance according to law, and staff shall enjoy social insurance benefits according to law.
[Lawyer's Interpretation] This article clearly includes public institutions in the coverage of social insurance, which is conducive to the expansion and overall planning of social insurance. Of course, this reform will face great pressure, that is, the huge historical debt problem, and the implementation effect remains to be seen. In practice, social insurance and occupational annuity in public institutions are generally matched to ensure that the interests of employees in public institutions are not greatly affected.
Thirty-sixth staff of public institutions shall retire if they meet the retirement conditions stipulated by the state.
[Interpretation by lawyers] Institutions and enterprises implement the same retirement age conditions. Of course, with the change of status to post, the problem and contradiction of female employees' retirement at the age of 55 are still outstanding.
Chapter VIII Handling of Personnel Disputes
Thirty-seventh personnel disputes between the staff of public institutions and their units shall be handled in accordance with the "People's Republic of China (PRC) Labor Dispute Mediation and Arbitration Law" and other relevant provisions.
[Lawyer's Interpretation] At present, the handling of personnel disputes has been merged with the handling of labor disputes in the procedural law, and the People's Republic of China (PRC) Labor Dispute Mediation and Arbitration Law and other relevant provisions are uniformly applied. However, in the application of substantive law, there have been different ways to deal with it. For example, economic compensation should be paid when the labor contract expires, but the court will not support it when the labor contract expires. The "Regulations" completely deleted the expression of economic compensation in the draft:
Attachment: Under any of the following circumstances in Article 34 of the draft, the institution shall pay economic compensation to the staff for the dissolution or termination of the employment contract:
(a) the termination of the employment contract in accordance with the provisions of Article 24 of these regulations;
(two) in accordance with the provisions of article twenty-sixth of this Ordinance to terminate the employment contract;
(three) in accordance with the provisions of article twenty-eighth of this Ordinance to terminate the employment contract;
(4) Dissolving the employment contract in accordance with Item 1 of Paragraph 1 of Article 33 of these Regulations, but the unit proposes to renew the employment contract by maintaining or improving the conditions agreed in the employment contract that are beneficial to the staff, unless the staff does not agree to renew it;
(five) in accordance with the provisions of the fourth paragraph of the first paragraph of article thirty-third;
(six) other circumstances stipulated by laws and administrative regulations to dissolve or terminate the employment contract.
Article 35 The economic compensation for the dissolution or termination of the employment contract shall be paid as per 1 year and 1 month salary according to the working years of the staff. If the working experience is more than 6 months but less than 1 year, it shall be calculated as 1 year; Less than 6 months, pay economic compensation for half a month's salary to the staff.
The employee's monthly salary refers to the average monthly salary that the employee actually received 12 months before dissolving or terminating the employment contract.
On May 14, when the heads of the three departments answered a reporter's question on the Regulations on Personnel Management of Public Institutions, the relevant person in charge clearly stated that "Article 96 of the Labor Contract Law stipulates that: unless otherwise stipulated by laws, administrative regulations or the State Council, a public institution shall conclude, perform, change, dissolve or terminate a labor contract with the staff who implement the appointment system; If there are no provisions, the relevant provisions of this law shall prevail. According to the characteristics and actual situation of employment contracts of public institutions, the Regulations stipulate the term of employment contracts and the probation period of first-time employees, clarify the conditions for concluding employment-to-retirement contracts, and list the situations of termination of employment contracts and termination of personnel relations after termination of employment contracts. If there is no provision in the regulations, it shall be implemented in accordance with the Labor Contract Law and its implementing regulations. " Combined with the changes in the bill, it should be recognized that the labor contract law should be fully applied in the absence of special provisions on the application of substantive law in personnel relations.
Therefore, the issue of economic compensation for the termination of labor contracts will be brought back into the legal field of vision, and it is believed that such problems and disputes will be further highlighted. But overall, the trend of personnel and labor integration is obvious, which is in line with the overall direction of market-oriented reform.
Thirty-eighth staff of public institutions who are dissatisfied with the assessment results and punishment decisions involving themselves may apply for review and appeal in accordance with relevant state regulations.
[Lawyer's Interpretation] Combined with the statement of answering a reporter's question, "Unlike labor disputes, personnel disputes in public institutions also include disputes arising from staff's dissatisfaction with the assessment results and disciplinary decisions. Such disputes are not disputes between equal subjects, and mediation and arbitration procedures are not applicable. " Disciplinary matters that do not involve dismissal can only be "digested internally". If employees resort to arbitration, neither arbitration nor the court will accept it.
Article 39 When performing their duties, the person in charge of a public institution shall avoid any of the following circumstances:
(1) Having an interest in himself;
(2) Having an interest in his near relatives;
(three) other may affect the impartial performance of duties.
[Lawyer's Interpretation] This article provides an avoidance mechanism for complaint handling.
Fortieth any unit or individual may complain and report violations of laws and regulations in personnel management to the comprehensive personnel management department, competent department or supervisory organ of public institutions, and the relevant departments and organs shall promptly investigate and deal with them.
[Lawyer's Interpretation] This article stipulates the right of employees to complain and report.
Chapter IX Legal Liability
Forty-first institutions in violation of the provisions of this Ordinance, the comprehensive personnel management department at or above the county level or the competent department of institutions shall be ordered to make corrections within a time limit; If no correction is made within the time limit, the directly responsible person in charge and other directly responsible personnel shall be punished according to law.
[Lawyer's Interpretation] This article stipulates the legal responsibility of the unit in violation of this law.
Article 42 If the personnel handling of public institutions violates the provisions of these regulations and causes reputational damage to the parties concerned, they shall apologize, restore their reputations and eliminate the influence; If economic losses are caused, compensation shall be made according to law.
[Interpretation by lawyers] In practice, disputes over infringement of reputation rights are generally not treated as labor and personnel disputes. If the unit's warning is made public and later proved to be wrong, whether employees can sue to the court to restore their reputation, and whether this kind of dispute relief is not accepted or can resort to the court remains to be experienced in judicial practice.
Article 43 If the staff of the comprehensive personnel management department and the competent department of public institutions abuse their powers, neglect their duties or engage in malpractices for selfish ends in the personnel management of public institutions, they shall be punished according to law; If a crime is constituted, criminal responsibility shall be investigated according to law.
[Lawyer's Interpretation] This article stipulates the legal responsibilities of the managers of public institutions.
Chapter X Supplementary Provisions
Article 44 These Regulations shall come into force on July 1 year 1 day.
[Lawyer's Interpretation] This article stipulates the implementation time. Are these provisions applicable to disputes that occurred before implementation but are now in appeal or judicial proceedings? The author believes that according to the principle of non-retroactivity of the law, it should be handled in accordance with the relevant provisions before. However, if disputes and handling matters occur after July 1, the new law should be fully applied.