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The negative impact of "labor contract law" on the unit behavior with people

Author: JinZhiFeng From: www.yourpaper.net Posted: 2010-06-01 16:29:18 Read:
[Abstract] "labor contract law" in the labor contract, the rights and obligations of the parties under the premise, focusing on the protection of the legitimate rights and interests of workers.But some terms and making the laws to protect the rights and interests of workers to the employing unit has potential negative induction effect, but will eventually damage the interests of the laborers.Based on the analysis of these terms, and gives some suggestions on modification.
[keyword] labor relations, labor contract law the rights and interests of workers by the employer behavior of

"Labor relations labor contract law" aims to build and develop harmonious and stable, and promote the building of a harmonious society in china.Lawmakers in view of the present situation of the employing unit and the laborer much stronger, by the principle of freedom of contract to the traditional restrictions, in order to achieve to vulnerable workers party tilt, to protect the legitimate rights and interests of workers.However, the law itself does not bring any immediate practical benefits to workers, it must be affected by employers and employees and other related parties act indirectly effect.Whether employers or workers in the draw on the advantages and avoid disadvantages, under the guidance of the principle, will be in accordance with the law to determine and adjust their behavior, and these actions will generate positive or negative effects on the interests of the parties concerned.Lawmakers if lack of foresight that should be in the formulation of regulations, the choice of methods and the specific provisions of the will inevitably occur some errors, legal implementation of the effect may be to the wishes of the negative, that is to say, from the protection of the weak position of making laws but harm the interests of the weak.This paper attempts to "labor contract law" provisions of part research have negative impact on unit selection behavior with the people, the negative effect of the analysis may have on the interests of the laborers.


1 guarantee clause
At present, some employers to reduce staff in violation of rules and regulations, violations of the interests of the unit and to the risk of leaving, require employees to provide various forms of guarantee, such as guarantees, pay a deposit, seizure of ID card, health certificate, academic degree certificate, occupation qualification certificate, or to a deposit by late wages.The workers leave, some employers also manufactures a variety of excuses, refusing to return the deposit or mortgage goods.In order to eliminate the phenomenon, "labor contract law" formulated a guarantee clause, the law stipulates clearly that the ninth the employer may not retain the employee's resident ID card or other papers, nor require him to provide a guaranty and take any propertiesfrom labourers.
This provision to prevent these problems from a certain extent, but also increase the number of law-abiding units employing risk.After workers enter the employing unit, direct contact with the equipment of the unit, in their daily work, commodity, customer, financial and business information, so that the interests of employers always exists the infringed may.Once employees are allowed to leave, not only work can not be normal handover, some also have equipment, goods, payment.While a few lack of honesty, violate the law and discipline staff, more is the use of his position, or occupation of property units, or sell the interests of, or damage to the unit's reputation.Due to the mobility of the individual large, often go after the unit on claims, the difficulty is very great, the cost is very high.The employing unit may not charge a deposit, seized documents, nor require workers to find a guarantor, in order to avoid the risk in using, can employ their relatives, friends, acquaintances, such as the association, or pass them on employment (actually a disguised form of guarantee), some employers are forced to rule only recruits to hold a local Hukou workers.This will give enterprises and workers both damage, enterprises, as the "inbreeding coefficient" and geographical restrictions, personnel selection range is narrow, personnel quality is difficult to guarantee, but also increase the difficulty to the management; labourers, is therefore lost many jobs, especially for those who lack social relations and no employment registration workers.
In order to reduce the employers' risk, suggests the absolute guarantee against moderate to relax, to implement standardized conditional guarantee, specific measures are as follows: (1) allows companies to require him to provide a certain property collateral or by the third party to guarantee; (2) the amount of the guarantee value property to be qualified, the specification of the security procedures; (3) to prevent the employer in raising funds, employee turnover in normal in addition to return the deposit, should also pay a deposit interest at the bank interest rate; (4) to strengthen the supervision of law enforcement, to the employer the excess charge or delaying the return of labor security behavior punishment, to make money fraud behavior by the judicial organs shall investigate the criminal responsibility guarantee nominal collection.

2 probationary period limiting the number of
In order to prevent the abuse of the probation period the employer to compress the wage costs, casual labor contracts, against the interests of workers, "labor contract law" article nineteenth in addition to the maximum term of probation are strictly restricted, in particular employer and the labor can only stipulate one probation period.
The above provisions of this is the protection of workers' measures, but in some special circumstances, it will affect the part of their employment.For example, some years ago from a unit of labor turnover, and now want to apply to the unit.Here, there may be the following three cases:
The first case: many years past, the passage of time, great changes took place in the original unit personnel, the staff of the supervisor has already left, former colleagues and there is not much left. Now, the managers and ordinary employees lack of understanding of the labourer;

Second kinds of circumstances: the business units in these years has made great development, or had the big transformation of employee competence, natural condition is higher and is completely different from the previous requirements;

Third kinds of circumstances: the workers apply for jobs with him before in the units held the post in the nature difference is very big, need different competence.
These three kinds of circumstances, as long as there is a kind of existence, determines the unit before the formal employ the old staff, must be on the arrangement of test time of study, otherwise very difficult to ensure that the staff's competence.Of the three cases in each case, the probability of occurrence in reality are very high.Because of the "labor contract law", the employer may eventually have to find all kinds of reasons to refuse to employ the old employees.Therefore, the two trial period that make it rigidly uniform type prohibitions are too biased, it will directly lead to some employees lose original office unit again employment opportunities.
To solve this problem, can consider the establishment of the lifting of the ban in terms of this provision, when workers to cover the unit worked before too, have one of the following circumstances, the original unit can be agreed once again the probation period (but the maximum term of the probation can be better than the first trial period shorten (:) 1) the worker turnover time from the unit has reached a certain age; (2) has undergone significant transformation of the unit operations; (3) the workers employed by the post and post properties before the unit was different.

3 for the vulnerable groups protection
"Labor contract law" for the protection of vulnerable groups and special populations, reduce the social burden, promote social harmony to consider, in many articles have made the corresponding provisions.Such as forty-first for the employer cuts the limitation on the candidates, regulations on staff reductions, in addition to preferentially retained with the unit to make a longer fixed term labor contract and a non-fixed term labor contract employees, but also retained in preference to the family has no other employment personnel, the elderly are in need of maintenance or minors.Article forty-second the employer layoffs and non-fault termination of labor contract and cut it in two cases, set up some forbidden conditions for workers, in addition to the occupation hazards, suffer from occupation disease or injury and injury in medical staff, including in pregnancy, lactation period, female workers period and in this work units for fifteen years, and from the mandatory retirement age of five years old employees.
Mentioned in these two cases of difficult employees, women workers and staff, because of their special circumstances need to be taken care of or protection.In the current China still needs development of the social security system, "labor contract law" to require the employer to bear certain social placement function, the protection of these special groups, is conducive to social stability and harmony.
However, mandatory legal means only a single, and lack of corresponding measures to encourage and guide, the result may run counter to one's desire.The above three groups, in the employment market and the unit was the relative lack of competition
Force, not welcomed by employers.Difficulties in the family personnel's energy and emotional burden of family influence; unmarried or married not fertile women of childbearing age are due to the impact of the work of fertility may; and part of the old worker age is due to the body, and the structure of knowledge in general, the work ability and work efficiency are reduced.While the "labor contract law" to the above provisions, the dissolution of the labor contract in downsizing and non workers fault when the employing unit, need to give special care to these three groups, influence the employer in accordance with the "management principle of survival of the fittest" normal out of low performance of employees.These Provisions, make the employer hiring these three groups and the additional burden of responsibility and obligation, but not at the same time with the corresponding rights and interests and.This will greatly increase the refuse employment of family difficulties workers and childless women of childbearing age intention in the recruitment of employing units, but also promoting the employers in some of the older workers have not yet reached the preferential conditions prior to dismissal, "priority".Therefore, the above simple mandatory policy, in practice it may damage these protected the employment rights of workers.However, whether to cancel tilt and protection measures for these difficulties employees and special? Of course not, otherwise it will greatly increase the burden on government, social stability.What can be done to avoid the negative impact on the unit behavior with the people, and make the interests of workers really protected? Can reference the disabled employment security fund way, to the employer the collection of capitation fee according to a certain proportion, as the body and a special group of workers in the difficult group benefits, for the placement of these class of worker units, according to the number of resettlement placement or accounted for the proportion of the total number of employees, to give a reduction.Such a government rescue the laborers prepared funds; two is to encourage employers to actively hiring and placement of the workers.But in the specific operation mode, the design has to be legislators and the relevant departments in-depth investigation and details.
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