On soliciting opinions on the draft labor contract law

From March 20th to April 6th at 8: 00 a.m, the Legislative Affairs Commission of the National People’s Congress Standing Committee (NPCSC) received a total of 37,560 opinions. Among them, 37,067 opinions were put forward through websites such as China People’s Congress Network, 100 opinions were published in newspapers such as People’s Daily and Legal Daily, and 393 letters were received. On March 27th, we announced to the media the first stage of the draft labor contract law for comments. From March 28th to April 6th, compared with the first stage, the number of opinions received increased significantly, which shows that all sectors of society attach importance to and pay attention to this law. In addition to continuing to put forward opinions on the scope of application of the draft, the short-term labor contract, the probation period and the standard of economic compensation, the opinions at this stage mainly reflect the following aspects:

First, the purpose of labor contract legislation should seek a balance between the rights and interests of workers and the rights and interests of enterprises. Some opinions suggest that law is the regulator of social relations and social interests, and any legislation is the allocation of rights and obligations and social interests. Legislators must find a combination point among multiple interest subjects and strive to find a balance of interests among various interest subjects, especially between the opposite parties in the same contradiction. As far as labor relations are concerned, the laborer is weak at any time. However, if legislation excessively expands the rights and interests of laborers and increases the responsibility of enterprises, it will bind the autonomy of employing people in enterprises, make it difficult to implement flexible management of survival of the fittest, affect the optimal allocation of human resources, and ultimately affect the market competitiveness of enterprises. "If the skin doesn’t exist, the hair will be attached." If the enterprise collapses, the workers will lose their jobs, and it is impossible to protect the rights and interests of workers. On the other hand, if the protection of workers’ rights and interests is not in place and there are too few requirements for corporate responsibility, it will affect the supply of labor force and is not conducive to the formation of a high-quality and healthy workforce. Therefore, labor contract legislation should establish a correct legislative concept, find an appropriate balance between citizens’ labor rights and interests and employers’ rights and interests, and ensure that labor relations are not unbalanced.

Two, in some cases, the existence of oral labor contracts should be allowed. The form of labor contract cannot be limited to written form. Now is the information age, and there are many forms of signing contracts. Labor contracts should be allowed to use electronic documents, oral contracts and other forms. As long as factual labor relations exist, they should be protected by law, and the emphasis on written forms may be detrimental to protecting the interests of workers. In particular, for part-time employment, employment with a short contract period or the contents of the contract have not changed much, it should be allowed to sign the contract orally.

Third, everyone has different views on the provisions of non-competition. Some people think that if the employer needs to keep business secrets, it can agree on non-competition when signing a labor contract with the employee, and at the same time agree with the employee to pay economic compensation for non-competition when the labor contract is terminated or dissolved. Some people think that the restriction of non-competition is not conducive to the flow of talents, and the termination of the labor contract means that the workers will lose their jobs, so it is suggested to cancel the restriction of non-competition. Some people think that the standard of liquidated damages for non-competition in the draft is too low, which will inevitably lead to the consequences of malicious poaching between enterprises in the same industry; Some people think that the economic compensation paid by the employer is too high, and it is suggested to refer to the non-competition clauses of other countries and modify the economic compensation to 50% of the annual wage income. If the laborer violates the non-competition restriction, in addition to paying liquidated damages, he should also pay compensation if he has caused economic losses to the enterprise.

Four, some people think that the provisions of the draft on the conclusion of a labor contract without a written form may be abused. If this provision is made, some workers may deliberately not sign a labor contract with the employer to achieve the purpose of signing an open-ended labor contract. It is suggested that the situation of not concluding a labor contract in written form should be clarified. Some people also think that this provision will use the employer to apply an open-ended labor contract in disguise without signing a written labor contract deliberately to achieve the purpose of arbitrarily dissolving the labor contract. Because according to the provisions of article 32 of the draft, the employer is subject to fewer restrictions when it terminates the open-ended labor contract. It is not conducive to achieving the original intention of stabilizing labor-employment relations and effectively protecting the legitimate rights and interests of workers.

Five, the labor contract law shall limit the overtime work of the employer. Many workers report that some enterprises now work overtime regularly and universally. Some workers work more than ten hours a day, six days or even seven days a week, and there is no overtime pay. Some enterprises calculate overtime when determining the workload, and they can’t finish the work quota without overtime, so as to maliciously avoid paying overtime, which seriously damages the rights and interests of workers and affects their health.

Six, the draft should make a special chapter on collective contracts. Some trade union organizations and the masses have suggested that a collective contract is an agreement on the rights, responsibilities and obligations of both employers and employees. Collective contract is the basis of labor contract and the soul of labor contract law. The practice in many countries has proved that the collective contract is an effective measure to ensure the workers’ negotiating status, and it is also the cornerstone to stabilize labor relations. At the present stage, when the supply and demand of labor force in China are unbalanced and workers are in a weak position, the measure to coordinate labor relations and make them harmonious is to promote and standardize collective contracts. Therefore, while legislating to standardize the labor contract, we should also standardize the collective contract. At present, it is difficult to introduce the collective contract law, so we should make a special chapter on the collective contract in the labor contract law.

Seven, the legislation should be clear about the supervision responsibility of the labor and social security department on the labor contract. Many problems in labor relations are not that there is no law, but that the law is not enforced. The provisions of the labor law have been relatively comprehensive, but problems such as arbitrarily terminating labor contracts, defaulting on wages, and not giving employees social insurance still occur in practice, indicating that the law has not been implemented well. There are laws that are not enforced, and no matter how good the laws are, it is useless. Some opinions suggest that law enforcement agencies should be given more effective law enforcement power, and at the same time, it is clear that safeguarding the rights and interests of workers is the statutory duty of the labor security department. If the labor department fails to perform its statutory duties, it should bear corresponding legal responsibilities. The provisions of the draft on the responsibility of labor and social security departments are not clear enough, so it is suggested that legislation should make clear provisions on this.

Eight, continue to discuss the issue of labor dispatch, put forward opinions and suggestions. Some suggestions should further regulate labor dispatch. First, improve the entry threshold of labor dispatch; The second is to clarify under what conditions, in which positions and types of work, the employer can use the form of labor dispatch; The third is to clearly divide the responsibilities of labor dispatching units and receiving units; Fourth, clearly stipulate the time limit for labor dispatch, and prohibit employers from using dispatched labor for a long time; Fifth, strict legal responsibility should be imposed, and severe punishment should be imposed on the labor dispatching unit and the receiving unit for shirking each other or maliciously colluding to infringe upon the legitimate rights and interests of workers.
(Provided by the National People’s Congress Standing Committee (NPCSC) Legal Affairs Committee)