At 9 a.m. on March 5, the Second Session of the 14th National People's Congress opened in the Great Hall of the People. Today's hot search sparked heated discussions - the committee suggested that women could take paid maternity leave for up to 2 years
Regarding this "suggestion", netizens are surprisingly unanimous, believing that this will only make the employment environment worse for women.
Screenshot** in the Weibo comment area.
A classic case
Recently, the Taijiang District People's Court of Fuzhou City, Fujian Province heard a labor dispute case caused by a female employee being transferred by the company due to pregnancy, and finally ruled that the wedding studio should pay Ms. Yu more than 40,000 yuan in economic compensation.
In September 2016, Ms. Yu joined a wedding studio and was gradually promoted to the head of the dress department. In March 2022, Ms. Yu was confirmed to be pregnant after an examination by the hospital, and then informed the wedding studio of the situation.
In June 2022, the wedding studio adjusted her position from dress supervisor to dress master on the grounds that Ms. Yu's monthly performance was not up to standard, and the salary after the transfer was implemented according to the standard of dress master. Ms. Yu was dissatisfied with the studio's decision to transfer her position, and resigned after actively communicating with the studio to no avail, and filed an application for labor dispute arbitration with the Labor Dispute Arbitration Commission, demanding that the Wedding Studio pay the unpaid wages and economic compensation.
The arbitration committee supported part of Ms. Yu's arbitration claim, and the wedding studio was dissatisfied with the arbitration result and filed a lawsuit with the court.
During the trial, the wedding studio asserted that Ms. Yu had not completed the performance appraisal indicators for seven months before the notice of transfer was made, and that the wedding studio had adjusted her position to a dress chef based on her work performance and work attitude, and that her job position was not adjusted because Ms. Yu was pregnant. There is a difference in how the performance commission of the dress supervisor and the dress master are calculated, and the dress master may be paid more than the dress supervisor if the performance is high.
Ms. Yu asserted that before the job transfer notice was issued, the overall performance of the wedding industry had declined very seriously, not only in her own store, but also in the value of the performance indicators set by the wedding studio. The studio was unable to afford too much labor costs due to the pressure on the overall operation of the store, so after learning that she was pregnant, she was transferred to the position of a dress chef who needed to do more physical work.
After trial, the Taijiang court held that during Ms. Yu's pregnancy, the wedding studio adjusted Ms. Yu's position from dress supervisor to dress master on the grounds that Ms. Yu's "performance did not meet the standard", but it failed to provide evidence to prove the specific performance standards of the employee appraisal, and had informed Ms. Yu of the standards and Ms. Yu's specific assessment values. Because "performance is not up to standard" is a negative evaluation of the employee, the resulting "punitive" job transfer, the adjusted post treatment is inevitably different from the original position.
If the wedding studio unilaterally makes a decision to transfer the position without reaching a consensus on the transfer of the post, and fails to provide evidence to prove that the adjusted position does not pose a certain risk to the health of the pregnant woman, it shall be determined that the wedding studio has not provided the corresponding conditions for protection during pregnancy.
Legal analysis
Many companies are reluctant to recruit female workers, in large part because of women's fertility problems. In order to reduce costs and increase efficiency, and give full play to the maximum value of each employee, companies prefer male employees who will not be pregnant or give birth, which is why many companies have "gender discrimination" when recruiting.
According toArticle 48 of the Law of the People's Republic of China on the Protection of Women's Rights and InterestsIt stipulates that employers shall not reduce the wages and benefits of female employees, restrict the promotion, promotion, evaluation and employment of professional and technical titles and positions, dismiss female employees, or unilaterally terminate labor (employment) contracts or service agreements due to marriage, pregnancy, maternity leave, breastfeeding, etc.
If a female employee is pregnant or enjoying maternity leave in accordance with the law, and the term of the labor (employment) contract or service agreement expires, the term of the labor (employment) contract or service agreement shall be automatically extended until the end of the maternity leave. However, there is an exception where an employer dissolves or terminates a labor (employment) contract or service agreement in accordance with law, or a female employee requests the rescission or termination of a labor (employment) contract or service agreement in accordance with law.
Employers shall not discriminate against women on the grounds of sex when implementing the national retirement system.
It is not difficult to see that the law protects the labor rights of female workers. But companies are still reluctant to recruit female workers, even if they know it's illegal.
In this case, Ms. Yu was forced to transfer her post due to her pregnancy and changed from a dress supervisor to a dress master. The dress supervisor calculates the performance commission based on the total performance of several dress masters, and the main work is to manage and train dress masters; The dress master calculates the performance commission based on personal performance, and the main job is to introduce the dress to customers, improve customer purchase intention, and promote orders. The labor intensity of the two is not the same. In the process of introducing and selling dresses, in order to promote the order, the dress master needs to lead the customer to repeatedly select various dresses. Because the weight of dresses is heavier than that of ordinary clothes, the dress master needs to undertake the task of carrying multiple dresses in the process of assisting in the selection and introduction of dresses, and its labor intensity is much greater than that of the dress supervisor who only needs personnel management and training.
Even if the basic salary of the two is the same, the gown master will inevitably need to pay more labor than the gown supervisor in order to achieve a performance commission similar to or higher than that of the dress supervisor.
And because Ms. Yu is pregnant, she is not suitable for being a more labor-intensive dress master, especially from the supervisor position to the commissioner position, which is unreasonable.
According toArticle 47 of the Law of the People's Republic of China on the Protection of Women's Rights and InterestsIt stipulates that employers shall, in accordance with the law, protect women's rights to safety, health and rest at work and during work in accordance with the characteristics of women. Women are given special protection during menstruation, pregnancy, childbirth, and lactation.
If a female employee is not suitable for her original job after becoming pregnant, she may negotiate with the worker to transfer her post, and the transfer shall also be decided on the basis of the female employee's physical condition, and ensure that the adjusted post does not pose a certain risk to the health of the pregnant woman, and shall not unilaterally adjust the pregnant worker to a position with greater work intensity, health risks, or lower labor remuneration for the purpose of reducing labor costs, so as to force her to voluntarily resign.
This is not only a legal obligation of the employer, but also a social responsibility that the employer should undertake.
end
In recent years, there have been many controversies over the employment of female workers, and there have also been many cases.
The proposal of the CPPCC members is beneficial to the female workers themselves, but how to implement it to achieve a win-win situation for workers and enterprises still needs to be implemented. If female employees can complete their work while pregnant, and if enterprises do not feel the loss of pregnancy and childbirth of female employees, it is believed that there will be no gender discrimination in the workplace.
Of course, relevant policies are not just introduced, and there is still a lot of discussion and implementation of measures to truly ensure the status of female workers in the workplace.
Edit: Crowds.
Review: Qiu Qiu.
Legal review: Lawyer Xiao Yuan.
Case**: China Court Network.