Is waiting for work a violation of labor law?
There are major omissions in the Labor Contract Law. Mainly for the employer to unilaterally change the contents of the contract, especially the terms of labor remuneration, there is no economic compensation and economic compensation except for consensus. Therefore, the employer takes advantage of the disadvantage that it is difficult for people over 50 to re-employment, coercing old employees to sign waiting agreements and accept contract changes with extremely low wages. To this end, the economic losses caused to the old employees are:
1. Since most of the reduced wages are limited to the minimum wage in 800 yuan and Beijing, if the original wage is 3,000 yuan, there will be a direct loss of 2,200 yuan per month, which will greatly reduce the living and medical standards in the next 10 year. In addition, the reduction of retirement insurance premium will have a great impact on the long-term life after retirement for decades.
2. After coercing employees to accept low wages, after 12 months, the employing unit may make use of the provisions of Article 47 of the Labor Contract Law to settle the compensation according to the average wages of 12 months before dissolution or termination. If the original salary is 3,000 yuan, you can pay 2,200 yuan less every month, and if the employee has worked in this unit for 20 years continuously, you can pay 44,000 yuan less.
Third, the above situation is not to mention the dignified life that Wen proposed at the two sessions this year. The most sad thing in reality is that there is no effective support from the government.
With regard to the modification of the labor contract, the conclusion of the labor contract according to Article 3 of the Labor Contract Law shall follow the principles of legality, fairness, equality, voluntariness, consensus through consultation and good faith. Article 16 stipulates that the labor contract shall come into effect after the employer and the employee reach an agreement through consultation and sign or seal the text of the labor contract. Even if the labor contract was actually signed before the new labor contract law came into effect, some changes in the contract should be implemented in accordance with the labor contract law and can only be signed through consultation. In other words, when changing the contents of the contract, it is necessary to negotiate the necessary terms, especially the labor content and remuneration, otherwise it will violate the labor contract law.
In reality, enterprises coerce employees to sign a waiting agreement, which is actually a disguised layoff. Equal to 10, which is equivalent to laying off 6 to 8 people, and at the same time can avoid ignoring the social impact of major operational difficulties. Sadly, however, on July 17, 2009, when an employee made a telephone consultation on this issue through Beijing Social Security Bureau 12333, including two female staff members who claimed to be squad leaders, according to the official explanation of the Labor Relations Department of the Social Security Bureau, it was not illegal for enterprises to let employees wait for their posts, and there was no need to consult with them. I was really shocked to hear such a solution. How can people live a dignified life with such government officials?
Whether waiting for a post is a way for employers to punish workers.
Case:
Company A is the key unit of public security in this city. A joined Company A on June 5438+0999 and June 5438+00. On July 1 2003, both parties signed an open-ended labor contract. On September 6, 20 1 1, Company A went to the office of B, the manager of the fuel department of Company A. During the negotiation between the two parties, diesel oil in a plastic bucket spilled on the ground and spilled on Company B, and Company A immediately called the police. On the same day, Minhang Branch of Shanghai Public Security Bureau criminally detained A on suspicion of arson.
On September 20th, 20 1 1, the public security bureau decided to release him on bail pending trial. 20 1 165438 On February 5, the Public Security Bureau made a decision on bail pending trial on the grounds that A's behavior did not constitute a crime. At 65438 on February 7th of the same year, A went to work in Company A, and Company A told A to go home and wait for the notice. In the same year 12 and 19, Company A issued the Notice of Opinions on Handling Employees to Party A, which clearly stated that "after discussion and approval by the company and the trade union, according to Articles 3 and 4 of the Employee Reward and Punishment Management System, Articles 2 and 4 of the Employee Attendance Management System, Articles 7 and 8 of the Employee Salary Management System and"
1. Submit a written inspection to the company within one week after receiving the notice.
2. Apologize to Party B at the place designated by the company within one week after receiving the notice.
Iii. 201kloc-0/65438+February 5 to 2012 65438+February 4 (tentative) suspended, leaving the factory for duty. From September 6, 20 1 1 year, all bonuses and corporate benefits within 201year will be stopped (those paid and enjoyed before September 6, 201/year will not be deducted); From June 20 12, pay 1.5 times of the minimum wage in Shanghai, and stop issuing enterprise benefits ... "。
On February 29th, 20 12, A submitted an arbitration application to the Labor and Personnel Dispute Arbitration Commission of Pudong New Area, Shanghai, and the Arbitration Commission ruled that none of A's requests were supported. A refused to accept the ruling and appealed to the court of first instance, demanding that Company A be ordered: 1 to continue to perform the labor contract and resume the original work; 2. Pay the salary difference of 7,440 yuan from October 2065,438+065,438+0/kloc-0 to February 29,2065,438+02 (the same below); 3. Pay its production bonus of 9600 yuan from September 6, 20 1 1 year to April 23, 20 12.
Selected cases: Shanghai No.1 Intermediate People's Court
Litigation focus
The focus of the dispute in this case is whether waiting for a post can be a form of punishment for workers by employers.
court decision
The original judgment: 1. Party A and Company A continue to perform the labor contract, and Company A resumes Party A's original work; 2. Company A shall pay Party A the wage difference of 2,536.66 yuan from 20 12 to 20 1 2 and 29 days from the effective date of this judgment; Third, reject A's other claims. ..
Judgment of second instance: the appeal was dismissed and the original judgment was upheld.
Comments:
Waiting for a job, as the name implies, refers to the situation that employees leave their original posts while maintaining labor relations with the employer, and the employer temporarily fails to arrange work and the employees wait for arrangements.
According to Article 7 of the State Council OrderNo. 199311,enterprises can provide training for surplus staff and workers, and the wages and benefits during the training period shall be determined by the enterprises themselves. Article 8 of the Regulations on the Resettlement of Surplus Employees of State-owned Enterprises stipulates that an enterprise may take a day off for its employees after being discussed and approved by the employees' congress and reported to the administrative department of the enterprise for the record. During employees' holidays, the enterprise will give them living expenses. Article 12 of the Interim Provisions on Wage Payment issued by the former Ministry of Labor stipulates that in a wage payment cycle, if the unit stops work or production due to reasons other than the employee, the employer shall pay the employee wages according to the standards agreed in the labor contract. According to Article 8 of the Notice of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System issued by 1996, the employer shall sign a labor contract with the surplus staff of the unit, and change the relevant contents of the labor contract for those who are waiting for their posts or taking a long vacation, and a special agreement can be signed on the relevant contents through consultation.
Therefore, from the above provisions, it can be seen that only when there are difficulties in the production and operation of enterprises can surplus personnel be placed in waiting posts. The waiting system is aimed at the post itself. The original intention of setting up the waiting system is to optimize the allocation of enterprise resources through reasonable arrangement of posts, so that enterprises with temporary difficulties in production and operation can tide over the difficulties as soon as possible. In fact, this is a kind of help and relief measure for enterprises with difficulties in production and operation. It is an expedient measure for enterprises with difficulties in production and operation to arrange their employees to wait for posts independently according to their own specific conditions, and it is not a form for employers to punish workers.
In this case, A carried out such behavior in Company A, a key public security unit. The degree of harm cannot be measured by the result, but it should be a serious violation of discipline, which is enough to terminate the labor contract. However, Company A did not terminate the labor contract with A, but took disciplinary measures to wait for A for one year. According to the above regulations in China, waiting for a post is a form of placement for employees in enterprises with difficulties in production and operation, rather than a form of punishment by employers. Therefore, a company's punishment for waiting for a job belongs to the wrong exercise of punishment right, and a's disciplinary behavior is not suitable for punishment. According to the relevant provisions of the Labor Law and the Labor Contract Law, if the employee constitutes a serious violation of discipline, the employer may terminate the labor contract with the employee. In fact, this is also the concrete embodiment of the employer's right to punish workers, but the form of this punishment is the highest level, that is, there is no legal relationship between the two parties. In view of Party A's violation of discipline, Company A can terminate the labor contract with Party A without termination. Even though there are provisions for waiting for posts in the rules and regulations of Company A, the punishment for waiting for posts implemented by Company A itself is not legal, so the punishment for waiting for posts of Company A should be revoked. There is nothing wrong with the courts of first and second instance handling this case.
To sum up, waiting for a job is a form of placement for surplus workers in enterprises with difficulties in production and operation, and cannot be a form of punishment for workers by employers.
Relevant legal knowledge:
Waiting for work is relative to being on the job. Waiting for work is not the same as being laid off. According to the deployment of the labor department, all laid-off workers have to leave the center in recent years, some are on the job and some are unemployed. I know some of them are waiting for a job. There is no uniform provision in law, and some provinces and cities have provisions in their laws and regulations.
If the employing unit arranges employees to wait for posts due to temporary difficulties in production and operation, and the salary payment period does not exceed one, the employing unit shall pay employees' wages according to the standards agreed in the labor contract; If the wage payment period is more than one, the wage payment standard may be reduced after consultation with the workers, but it shall not be less than 70% of the local minimum wage standard; If negotiation fails, both parties may terminate the labor contract, and the employer shall pay economic compensation in accordance with the regulations.
Employers unilaterally decide whether it is legal for workers to wait for work.
The netizen asked:
On August 20 10, Mr. Wang joined a software company, and both parties signed a labor contract to hire him as the department manager. In March of 20 16, due to internal adjustment and merger, the company informed Mr. Wang to be removed from the position of department manager, and in April of 20 16, it served Mr. Wang with the Notice of Waiting for a Post on the grounds that there was no post arrangement after the organizational structure adjustment. After repeated negotiations by both parties to terminate the labor contract, the company decided to wait for Mr. Wang from 2065438+May 2006, and his salary was reduced from the original monthly salary of 8,000 yuan to 1950 yuan. Mr. Wang asked, is it legal for the unit to make such a decision without his consent?
The lawyer replied:
Due to the adjustment of the employer, Mr. Wang's department merged. As an employer, the company should negotiate with Mr. Wang to change a new job, rather than terminate the labor contract. Article 35 of the Labor Contract Law stipulates that the employer and the employee may change the contents of the labor contract through consultation. Without reaching an agreement with Mr. Wang to terminate the labor contract, the company made a unilateral decision to wait for a job, which had no legal basis and violated the labor rights endowed by the Constitution. Therefore, the company should cancel the waiting notice, arrange other jobs for Mr. Wang, and reissue the salary difference during his waiting period.