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a concise analysis about the rules and regulations of the employer

Author :Tianjin Bo Law Firm   Time :2019-01-04

Company A stated that Li had carefully read and signed the Staff Service Volunteer when he joined Company A on August 22, 2011. The first article in the Staff Service Volunteer stipulates compliance with the company's rules and regulations. Ministry of Performance Appraisal Regulations and the 2011 Regulations of the Issuance Department. Li acknowledged the authenticity of his signature on the Staff Service Volunteer, but said that he had not seen the Performance Appraisal Regulations of the Issuing Department and the 2011 Regulations of the Issuance Department, and disagreed with the Company’s performance appraisal regulations. And the "Regulations of the Issuance Department 2011" calculate its business commission. Li applied to the Arbitration Commission and asked Company A to pay a payment of 19,515.23 yuan from April 1, 2012 to June 30, 2013. The Arbitration Commission decided to pay Li’s application, and Company A refused to appeal to the court. After the trial, the court held that, according to Article 4 of the Labor Contract Law, which came into effect on January 1, 2008, the employer is formulating, modifying or determining the relevant labor remuneration, working hours, rest and vacation, labor safety and health, and insurance benefits. When personnel training, labor discipline, labor quota management, and other rules and regulations or major events directly affecting the vital interests of workers, they shall be discussed by the employee representative assembly or all employees, and the plans and opinions shall be submitted and negotiated with the trade union or employee representatives on an equal footing. The employer shall decide on the rules and regulations and major matters directly related to the immediate interests of the workers, or inform the workers. Company A has not submitted evidence to prove that the assessment system has been formulated through democratic procedures. The “Clerk Service Volunteer” submitted by the signature generally requires laborers to abide by the company's rules and regulations, which is not enough to prove that the evaluation system has been publicized or served to Li. The court decided to reject the request of Company A.

 

Lawyer interpretation


In this case, Company A advocates that the rules and regulations established by it should be used as the basis for management. However, the rules and regulations advocated by it are neither formulated nor publicized by democratic procedures. Therefore, they cannot be binding on Li and cannot be used as the basis for finalization. Therefore, it is inevitable that Company A will lose.

 

Extended interpretation


Allowing lawful formulation of rules and regulations is a full manifestation of China's labor legislation on the employer's autonomy of employers. Employers should make good use of this right to fully resolve various labor disputes in enterprise management. How is the regulation of the rules and regulations defined?


Article 4 of the Labor Contract Law The employer shall establish and improve the labor rules and regulations in accordance with the law to ensure that laborers enjoy labor rights and perform labor obligations.

When the employer formulates, modifies or decides the rules and regulations or major matters concerning labor remuneration, working hours, rest and vacation, labor safety and health, insurance benefits, employee training, labor discipline, and labor quota management, which directly affect the vital interests of the workers, After discussion by the employee representative assembly or all employees, the plan and opinions shall be proposed and negotiated with the trade union or employee representatives on an equal footing.

In the process of implementing rules and regulations and major matters, if the trade union or employee considers it inappropriate, it has the right to propose to the employer and to modify it through consultation.

The employer shall decide on the rules and regulations and major matters directly related to the immediate interests of the workers, or inform the workers.

 

In practice, many SMEs have basically not established employee representative organizations or trade unions, and the rules and regulations formulated cannot meet the requirements of the Labor Contract Law that should be discussed by employees. For the rules and regulations formulated before 2008, although the democratic procedures stipulated in the Labor Contract Law have not passed, but the content does not violate the laws, administrative regulations and policies, and has been publicized or informed to the workers, the employer can manage Basis. However, the rules and regulations formulated in 2008 have not passed the democratic procedures stipulated in Article 4 of the Labor Contract Law. In principle, the employer cannot be used as the basis for management.

 

What specific requirements are required for the entry into force of the rules and regulations established by the employer?


According to Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases, the rules and regulations established by the employer through democratic procedures in accordance with the provisions of Article 4 of the Labor Law do not violate the State. The laws, administrative regulations and policies that have been publicized to the workers may serve as the basis for the people's courts to hear labor dispute cases. This shows that the employer's rules and regulations need to have statutory requirements:

 

(1) The content of the rules and regulations must comply with the law. The content of the rules and regulations cannot be in conflict with the law, and it must not violate the law and damage the legitimate rights and interests of workers.

 

(2) The procedures for formulating rules and regulations must be legal. The procedural law includes the enactment of the subject and the establishment of a democratic procedure. Where it is authorized to formulate rules and regulations in the name of the employer, it shall be that the employer has a unified and comprehensive management mechanism. The internal workshops and teams may formulate rules and regulations, but they cannot directly formulate rules and regulations, and must be approved by the employer and employed. The unit is released in the name. The rules and regulations shall be discussed by the employee representative assembly or all employees, and the plans and opinions shall be submitted and negotiated with the trade union or employee representatives on an equal footing. The administrative office is not a workers' congress. The rules and regulations adopted by it have no legal democratic procedures, no legal effect, and no binding on workers.

 

(3) Publicity is required after the formulation of rules and regulations. Without explicit disclosure, the laborer is at a loss and is not binding. In general, the means of publicity and notification should be formal, open, and permanent or lasting. In order to facilitate the proof in the event of future disputes, the employer shall make a written record of the publicity and the laborer. For example, the rules and regulations are handed over to the workers for reading, and the workers are allowed to sign and confirm after reading. Regarding the method of publicity, you can use the announcement of the list, and pay attention to taking pictures to save the public evidence after the announcement.

 

If the employee seriously violates the rules and regulations of the employer, can the unit be terminated if the unit can terminate the labor contract?


According to the second paragraph of Article 39 of the Labor Contract Law, if the employee seriously violates the rules and regulations of the employer, the employer may terminate the labor contract. However, the employer of the employer is reminded that according to Article 17 of the “Tianjin Municipality Implementing the Provisions on Several Issues of the Labor Contract Law”, the employer shall establish and improve the labor rules and regulations according to law, and the situation of serious violations of the rules and regulations shall be To be clear, if there is no clear stipulation, the employer shall not terminate the labor contract with the laborer in accordance with Article 39 (2) of the Labor Contract Law.

 

Finally, if the employer establishes a trade union organization, it should also notify the trade union of the reasons for the prior unilateral termination of the labor contract in accordance with the provisions of Article 43 of the Labor Contract Law.

 

Lawyer Wang Ronggui has handled hundreds of lawsuits and non-litigation cases since his practice, and many cases have been in Tianjin Daily, Daily News, City Express, City Express, Tonight, Tianjin Workers. Newspaper and other media reports. Mr. Wang Ronggui has been a guest of the "Traditional Help Group" section of the Tianjin Radio Station traffic channel. He has been questioning and answering questions for the audience. He was invited by the Tianjin Human Resources and Social Security Bureau to teach the city's labor relations coordinator. . Lawyer Wang Ronggui has long participated in the legal service activities of Tianjin Federation of Trade Unions and Jinghai District Federation of Trade Unions, and has been well received and recognized by the staff and enterprises.

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