According to the ninth national survey on the status of the workforce, there are 84 million workers in China's new employment form, which has become an important part of the workforce. The rights and interests of workers in new forms of employment are increasingly concerned by society, what progress has been made in 2023?
As an additional salary and welfare, the year-end bonus is of great significance to people in the workplace. It's almost the end of the year, have you got the year-end bonus for the working people?
There is annual leave, but it can't be taken - many workers sigh helplessly. Can I have a reunion dinner at home on Chinese New Year's Eve this year?How is the paid annual leave implemented?
Looking back on 2023, what do people in the workplace care about most?In the event of a labor dispute, how to protect their legitimate rights and interests?What are the most important qualities that people in the workplace need to have?
Workers in the new form of employment are looking for "owners".
Sound. I have signed a flexible employee service agreement with the company, am I considered a person in the company?
Case. Zhang is a courier for a logistics company. At work, the means of transportation used by Zhang to receive and deliver parts were provided by the logistics company, and the logistics company managed it. On September 27, 2022, Zhang was injured in a traffic accident on the way to pick up the parcel. Zhang asked the logistics company to report the work-related injury for him, and then applied for labor arbitration, requesting confirmation that he had an employment relationship with the logistics company from June 19 to September 27, 2022.
During the trial, the logistics company claimed that Zhang was not an employee of the company, and provided a service outsourcing agreement signed between the company and a technology company, a flexible employee service agreement signed between the technology company and Zhang, and a record of the technology company's payment of wages to Zhang.
Zhang said that he had never seen the service outsourcing agreement, and proposed that he signed the flexible employee service agreement, which was signed electronically through the verification code of mobile phone SMS under the arrangement of the logistics company, and he had not seen the content of the agreement. The logistics company did not adduce evidence that it had disclosed the service outsourcing agreement and the flexible employee service agreement to Zhang.
The local arbitration commission found that the amount of wages paid by a technology company every month was consistent with that of the logistics company's software settlement. Zhang's work in a logistics company conforms to the basic characteristics of labor relations. The service outsourcing agreement signed between the logistics company and the technology company was not disclosed to Zhang, and the content of the agreement was a standard clause.
In the end, the arbitration commission ruled that Zhang had an employment relationship with the logistics company.
Observe. In labor dispute cases in new forms of employment, some express logistics companies often take advantage of the asymmetry of information and dominance to organize employment in the form of outsourcing, requiring couriers to register as individual industrial and commercial households or enter into flexible employment agreements, but in fact they still directly arrange and manage the work of couriers, deny the existence of labor relations with employees when they claim rights and interests, and regard "outsourcing" as a "wind shield" to avoid legal liability.
Courier brothers, Internet celebrity anchors, online car-hailing drivers, and online housekeeping service personnel ......With the development of new forms of employment, more and more flexible workers have emerged, and the rights and interests of workers in new forms of employment have also attracted much attention. Whether they can find the "owner" and who will take care of the work-related injuries are the most concerned things for thousands of flexible employees.
In February this year, the Ministry of Human Resources and Social Security issued the Guidelines for the Conclusion of Labor Contracts and Written Agreements for Workers in New Employment Forms (for Trial Implementation), which clearly included the occupational injury protection system in the document to address the occupational concerns of new employment groups. Previously, the Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Employment Forms, issued in July 2021, included new employment groups in the scope of basic public services for labor security.
With the improvement of laws and regulations, corresponding measures have also been formulated in various places: in Shanghai, couriers and takeaways can participate in social security according to regulations;In Wuhan, Hubei Province, online car-hailing drivers have a mobile party branch;In Jinan, Shandong, the Warm Heart Station can also provide legal aid, policy consultation, vocational skills training and other servicesIn Beijing, the community table for the elderly has been opened, allowing takeaway boys to eat affordable meals ......The real convenience makes the new employment form workers feel more and more warmth.
Whether the "balance" of the leave can be made up.
Sound. When will paid annual leave be taken and who will decide?
Case. Lao Chen joined a company in 2014 and was an old employee, and later when he terminated the labor relationship with the company, Lao Chen believed that although the company paid the severance for the termination of the labor contract, he had worked for 10 years (less than 20 years), and there were 10 days of paid annual leave in the year of termination of the labor contract due to work reasons, and the company was required to pay compensation for the unused annual leave.
The company argued that Lao Chen did not propose to take annual leave due to his own reasons, and had taken two months of sick leave in the previous year, so he did not agree to pay annual leave compensation.
After hearing the case, the arbitration commission held that Lao Chen's sick leave in the previous year did not reach more than 3 months, and the company still had to pay Lao Chen's salary and remuneration for the unused annual leave in that year.
Observe. At the end of the year, holidays become a hot topic. According to the "Notice on the Arrangement of Some Holidays in 2024" issued by the General Office of the People's Republic of China, the Spring Festival in 2024 will be 8 days off, from the first day of the new year to the eighth day of the new year. If the company arranges for employees to take paid annual leave on Chinese New Year's Eve, it can be at least 9 days off.
According to reports, many companies have released Spring Festival holiday arrangements in advance. Some Internet companies have announced that they will have a Chinese New Year's Eve holiday and will not take up the annual leave quota. Some companies have chosen a compromise holiday plan to let employees take a holiday on Chinese New Year's Eve, but the premise is to use annual leave deduction or arrange to start work one day earlier.
Some small and medium-sized enterprises said that there is no holiday on Chinese New Year's Eve, but they do not need to go to the company to work and work remotely.
Although the balance of statutory holidays in 2023 has been reduced to zero, don't forget, there is also paid annual leave. Article 5 of the Regulations on Paid Annual Leave for Employees stipulates that: "The employer shall make overall arrangements for the annual leave of employees according to the specific conditions of production and work, and taking into account the wishes of the employees themselves. Therefore, the employer has the right to make overall arrangements for the employee's paid annual leave, in other words, "the employee has the final say on whether to take a holiday, but the employer has the final say on how to take it".
In the final analysis, it is necessary for employers and workers to understand each other, and only harmonious labor relations can not only ensure the normal operation of production and operation, but also make workers feel cared for and respected, so as to promote the healthy development of enterprises.
How much is the bonus.
Sound. Said good year-end bonus, can you get it?
Case. When Mr. Li and Dahai Company (pseudonym) signed the labor remuneration agreement, the bonus will be paid according to the achievement of the performance indicators of the company and the individual, and the performance indicators and target performance bonus payment principles are also described in the performance policy. Later, due to the failure of Dahai Company to pay the promised performance bonus, Mr. Li proposed to terminate the employment contract. The labor arbitration ruled that Dahai Company should pay Mr. Li a performance bonus of more than 60,000 yuan, and Dahai Company filed a lawsuit against the arbitration result, and the court ordered Dahai Company to pay Mr. Li a target performance bonus of more than 60,000 yuan.
The court held that since the employment contract clearly stipulated that the remuneration for labor was to be executed in accordance with the Employment Agreement signed by the two parties, and the parties had clearly agreed in the employment agreement that the remuneration included the basic salary and the target performance bonus, the target performance bonus agreed by the parties should be an integral part of Mr. Li's remuneration. Dahai Company acknowledges that the company does not have a relevant performance policy and does not conduct performance indicator evaluation, and Dahai Company should bear the adverse consequences of failing to provide evidence. After the court's calculation, the amount determined by the labor arbitration award was not improper.
The judge held that when a dispute arises between the two parties to the employment relationship over the payment of the target performance bonus, the employer should bear the burden of proof on the standard of wage accounting and the need to pay the corresponding bonus. If the employer and the employee have not made a special agreement on the payment conditions of the performance bonus, it should be deemed that the payment of the bonus has no relationship with the company's profitability. Regardless of whether the company is losing money or making a profit, as long as the employee provides labor normally and meets the conditions required by the labor contract, the employee shall be paid the performance bonus on time and in full.
In the end, the court found that Dahai Company should pay Mr. Li a performance bonus of more than 60,000 yuan.
Observe. The payment of bonuses has always been a concern for many workers. The end of the year is approaching, and whether and how to issue year-end bonuses has become a hot topic in the workplace recently. China's laws and regulations do not mandate that employers must pay year-end bonuses, so the issuance of year-end bonuses generally belongs to the scope of self-management by employers, and employers should have the right to independently decide the conditions, amount, time and other specific matters for the issuance of year-end bonuses.
However, in judicial practice, many employers and employees do not have clear agreements on the payment of year-end bonuses, and there are no rules and regulations to restrict this. According to the relevant provisions of the law, if the employer fails to provide evidence to prove that its rules and regulations or that there are clear provisions between the employer and the employee on the conditions, standards and amounts of the year-end bonus, the employer shall bear the adverse consequences of failing to provide evidence.
Social security contributions are not paid.
Sound. If the social security is not paid due to the employer's reasons, who will I ask for my maternity insurance?
Case. Chen Rong (pseudonym) works in the marketing office of a company. From August 2016 to December 2018, Chen Rong's social security payment status was underpaid. It has been paid-up since June 2019. From August to December 2018, due to the poor economic performance of the unit, Chen Rong and many other employees were idle at home, and the company did not pay salaries. On December 14, 2018, Chen Rong was hospitalized for childbirth and spent 2,547 in medical expenses59 yuan. On May 21, 2019, Chen Rong went to work after her maternity leave. Later, Chen Rong had a labor dispute with the company, demanding that the company pay 19,686 yuan that could not be reimbursed by maternity insurance due to non-payment of social insurance.
The court held that, according to Article 8 of the Special Provisions on the Labor Protection of Female Employees, the maternity allowance for female employees during their maternity leave shall be paid by maternity insurance according to the standard of the average monthly wage of the employee in the previous yearFor those who have not participated in maternity insurance, the employer shall pay the salary of the female employee before the maternity leave. The medical expenses for childbirth or miscarriage of female employees shall be paid by maternity insurance in accordance with the items and standards stipulated in maternity insurance, and for those who have participated in maternity insuranceFor those who have not participated in maternity insurance, the employer shall pay for it.
In this case, because the company failed to pay social insurance for Chen Rong for the period from August 2016 to December 2018, she was unable to enjoy maternity insurance benefits, and the company should have paid Chen Rong's salary before her maternity leave. Because Chen Rong's average monthly salary before maternity leave was 1,800 yuan and the number of days of maternity leave was more than 150 days, the original trial court determined that Chen Rong's maternity allowance was 9,000 yuan, which met the above requirements.
Observe. In 2021, with the promulgation of the "Decision on Optimizing the Fertility Policy to Promote the Long-term Balanced Development of the Population", the third child has become the focus of social attention. For children's fathers and mothers, who is most concerned about who will take care of the baby?How to raise a baby?With the intensive introduction of a series of policies to encourage school-age couples to have children, various types of maternity leave and maternity incentives have provided policy support for working parents to better take care of their young children.
Labor disputes that violate labor laws, such as employment discrimination against female employees, dismissal after pregnancy, and transfer after returning from maternity leave, have been reported from time to time, and many companies have paid the price. However, some people may not know that in addition to striving for equal job opportunities and wages, in order to ensure that the salary income of female employees during maternity leave is not reduced, the state also has an important maternity security system - the maternity allowance system.
According to the law, employers are obliged to pay maternity allowance for their employees.
Integrity should be remembered.
Sound. There are loopholes in the management of the unit, and you want to take advantage of the loopholes to get compensation, is this idea advisable?
Case. After joining an auto repair company, the person in charge of human resources of the company informed Chen to sign a labor contract, but Chen was unwilling to sign it. At the same time, the company filed Chen's labor relationship with the social security and labor and employment management departments, and handled social insurance for Chen. After that, Chen resigned for personal reasons, and the unit handled the resignation procedures for him. Unexpectedly, Chen took the company to court again, demanding that the company compensate him twice the salary for not signing the labor contract. In court, the company adduced evidence to prove that as early as a year ago, Chen had also sued the former owner for claiming double wages for not signing a labor contract, which was supported by arbitration.
The court held that if the employer has paid social insurance for the employee in the employee recruitment roster filed with the administrative organ, and has paid social insurance for the employee, it should be determined that the employer has not maliciously harmed the legitimate rights and interests of the employee. Under such circumstances, if the employee deliberately does not sign a written labor contract and claims double wages on the grounds that he has not concluded a written labor contract, it is a violation of the principle of good faith to seek additional benefits, and the people's court will not support it.
Observe. How important is a person's integrity in the workplace?This is not only a legal norm, but also a test of one's morality.
Abiding by professional ethics and being honest and trustworthy is not only the moral obligation of workers, but also the legal obligation of workers, and an important part of building an honest society. In the signing of the labor contract, the employee shall honestly fulfill the obligation to truthfully inform when the labor contract is signed or changedIn the performance of labor contracts, faithfully perform labor duties and strictly abide by labor discipline;On the basis of not violating the law and social justice, loyalty to the unit can obtain long-term and stable jobs in the fierce social employment competition.
However, in judicial practice, some individual workers have defied the law: falsifying academic qualifications, taking sick leave, leaving after obtaining a household registration, and failing to perform non-compete obligations, ......This kind of behavior of only caring about immediate interests and ignoring long-term consequences is still the one who suffers.