Legal Aid Guide for Rural Migrant Workers: Labor Contracts ，

Author: Zheng Ziwen et al. / Country:
Publisher:
Publishing Time: 2004-08-01
Features: 3. What is a labor contract? What are its characteristics? A labor contract, also known as a labor agreement, refers to an agreement signed between enterprises, individual economic organizations, public institutions, state organs, social organizations, and laborers to establish and clarify the labor relationship, rights, and obligations of both parties. A labor contract is a legal certificate for establishing the labor relationship. Under the market economy system, enterprises become independent employers, and laborers also have the right to choose employment independently. When enterprises and laborers establish a labor relationship, they must conclude a labor contract. Once signed, the labor contract becomes the basis for regulating the labor rights and obligations of both parties. For example, how laborers transfer their labor power to the employer for use, and how employers pay labor remuneration and provide working conditions to laborers, should all be based on the provisions in the signed labor contract. A labor contract is also the legal form for establishing the labor relationship. Only by signing a labor contract can the rights and obligations between the parties to the labor relationship be legally binding, and the rights and interests of the parties can be legally protected. As a bilateral legal act, a labor contract has the following characteristics: , A labor contract is a bilateral contract, not a unilateral contract. Both parties to the labor contract have obligations, and the obligations of each party are both the cost corresponding to the rights they enjoy and the guarantee for realizing the other party's corresponding rights. Second, a labor contract is a paid contract, not a gratuitous contract. The labor relationship established by the labor contract is a relationship of exchange between equal amounts of labor. On one hand, laborers provide labor to employers, and on the other hand, they obtain labor remuneration from employers. Third, a labor contract is a continuing contract. The rights and obligations agreed upon in the labor contract continue to exist during the duration of the labor relationship, requiring both laborers and employers to continue to fulfill their obligations during this period. Fourth, a labor contract is generally a formal contract. According to the provisions of the Labor Law, it is generally required that labor contracts must adopt the statutory form, otherwise they do not have legal effect. Only in special legal circumstances are parties allowed to independently choose the form of the labor contract. 4. What are the types of labor contracts? Labor contracts can be classified into different types based on different criteria. (1) Based on the length of the contract term, labor contracts can be divided into three types: ① Fixed-term labor contracts. It refers to labor agreements concluded between enterprises or other employers and laborers with a certain term. When the contract term expires, the labor legal relationship between both parties terminates. If both parties agree, the contract can be renewed to extend the term. ② Open-ended labor contracts. It refers to labor agreements concluded between enterprises or other employers and laborers without a specified term. After joining the workforce, laborers engage in production or work in the same enterprise or other employer for a long time and may not leave without good reason, and employers may not dismiss laborers without good reason. This type of contract is generally applicable to positions requiring strong technical skills and continuous work. ③ Labor contracts with a term to complete a specific task. It refers to labor contracts where the term is determined by the tasks assigned to laborers. For example, labor contracts for completing certain scientific research tasks, as well as temporary or seasonal work and tasks. During the term of the contract relationship, both parties establish a labor legal relationship. Laborers must join the collective of the labor unit, abide by the internal rules of the labor unit, and enjoy certain labor insurance benefits. China's Labor Law classifies the term of labor contracts into fixed-term, open-ended, and term-to-complete-a-specific-task based on this classification standard. To fully protect the legitimate rights and interests of laborers, the Labor Law also stipulates that: "If a laborer has been continuously working in the same employer for ten years or more, and both parties agree to renew the labor contract, if the laborer requests to conclude an open-ended labor contract, an open-ended labor contract should be concluded," to avoid employers only using laborers during their "golden age." (2) Based on the way the labor contract is formed, labor contracts can be divided into three types: ① Recruitment contracts. It refers to labor contracts concluded between employers and laborers within the labor quotas issued by government labor departments through open recruitment and selection. Recruitment contracts are generally applicable to the recruitment of ordinary laborers. Currently, the characteristics of employers (such as state-owned enterprises, state organs, public institutions, and social organizations) recruiting and employing laborers and concluding labor contracts are: Employers recruit and employ laborers according to pre-determined conditions, publicly recruiting laborers; Applicants voluntarily register according to the conditions announced by the employers; Employers comprehensively assess and select the best laborers; Both parties sign labor contracts. ② Appointment contracts, also known as contracts. It refers to labor contracts directly establishing a labor relationship by employers issuing letters of appointment to specific laborers. This type of contract is generally applicable to recruiting laborers with specific technical or professional expertise. For example, enterprises hiring technical consultants or legal consultants. ③ Transfer contracts, also known as borrowing contracts. It refers to agreements between borrowing units, borrowing units, and individual laborers being transferred to clarify mutual responsibilities, rights, and obligations for the laborers transferred to engage in certain work. Transfer contracts are generally applicable to borrowing units urgently needing workers or laborers. When the transfer contract terminates, the transferred laborers still return to their original units to work. (3) Based on the number of laborers on one side, labor contracts can be divided into two types: One is individual labor contracts, generally signed by laborers individually with employers; The other is collective contracts, generally referring to contracts signed by trade unions representing laborers collectively with enterprises in joint-venture enterprises. (4) Based on the nature of the ownership of production means, labor contracts can be divided into: labor contracts of state-owned enterprises, collective enterprises, individual enterprises, private enterprises, and foreign-invested enterprises, etc. (5) Based on the type of employment system, labor contracts can be divided into: permanent labor contracts, contractual labor contracts, rural migrant labor contracts, temporary labor (seasonal labor) contracts, etc. 5. What should be done if employers do not conclude labor contracts with migrant laborers working outside? The Labor Law explicitly stipulates that establishing a labor relationship shall be concluded with a labor contract. If employers violate the Labor Law and deliberately delay concluding a labor contract, they must be held legally responsible. Any organization or individual has the right to report and expose the illegal act of employers deliberately delaying the conclusion of a labor contract. 26. What is the renewal of a labor contract? The renewal of a labor contract refers to the continuation of the labor relationship between employees and enterprises after the contract expires, with both parties fully agreeing to continue fulfilling the rights and obligations of the original contract. It is also a legal act to extend the validity period of the originally signed contract that is about to expire. One party has no right to demand that the other party must renew the labor contract. When one party explicitly expresses disagreement with renewing the labor contract, the labor contract should terminate. Neither party may force the other to comply with their wishes to renew the labor contract. 27. After the fixed-term labor contract expires, if the laborer continues to work in the same unit, is it necessary to re-conclude a labor contract? After the fixed-term labor contract expires, if due to reasons of the employer, the termination or renewal procedures are not completed, and an actual labor relationship is formed, it is considered a renewal of the labor contract. Employers should promptly negotiate the contract term with laborers and complete the renewal procedures. If this causes losses to laborers, the employer shall bear legal compensation according to law. 28. What are the responsibilities and penalties for employers not concluding labor contracts? The Labor Law explicitly stipulates that establishing a labor relationship shall be concluded with a labor contract. Article 98 of the Labor Law stipulates that if employers violate the conditions of this Law in terminating labor contracts or deliberately delay concluding labor contracts, labor administrative departments shall order them to correct their actions; if they cause damage to laborers, they shall bear compensation liability. The Ministry of Labor's "Notice on Issuing the Administrative Penalty Measures for Violating the Labor Law of the People's Republic of China" (December 26, 1994, Labor Ministry Document No. [1994]532) stipulates in Article 16 that if employers do not terminate labor contracts according to the conditions of the Labor Law or deliberately delay concluding labor contracts, they shall be ordered to correct within a specified period; if they do not correct after the deadline, they shall be publicly criticized. For disputes arising from the termination of labor relationships due to the lack of labor contracts, relevant departments shall accept and investigate and pursue the economic compensation and liability of the employers. In accordance with the spirit of Article 17 of the "Opinions on Implementing Several Issues of the Labor Law of the People's Republic of China" (Labor Ministry Document No. [1995]309) and Article 4 of the "Reply to the Letter on Labor Dispute Acceptance Issues" (Labor Office Document No. [1994]％), if an actual labor relationship is formed between employers and laborers, and the employer deliberately delays concluding a labor contract and terminates the labor relationship with the laborer, if the laborer requests economic compensation from the employer and a labor dispute arises, if the laborer applies for arbitration to the labor dispute arbitration commission, the labor dispute arbitration commission shall accept and handle it in accordance with the provisions of Article 98 of the Labor Law, the "Measures for Economic Compensation for Terminating and Rescinding Labor Contracts" (Labor Ministry Document No. [1994]481), and the "Measures for Compensation for Violating the Labor Law of the People's Republic of China" (Labor Ministry Document No. [1995]223). If the laborer reports to the labor supervision agency, the labor supervision agency shall investigate and deal with it in accordance with the provisions of the Labor Law, the "Administrative Penalty Measures for Violating the Labor Law of the People's Republic of China" (Labor Ministry Document No. [1994]532), and other relevant regulations. 29. If migrant laborers do not conclude written labor contracts with employers, are they still protected by the Labor Law? Article 16 of the Labor Law explicitly stipulates: "A labor contract is an agreement between laborers and employers to establish a labor relationship and clarify the rights and obligations of both parties. Establishing a labor relationship shall be concluded with a labor contract." It is illegal for employers not to conclude labor contracts after hiring laborers. The former Ministry of Labor stipulated in the "Administrative Penalty Measures for Violating the Labor Law of the People's Republic of China" that "if employers deliberately delay concluding labor contracts, labor administrative departments shall order them to correct within a specified period." According to the "Measures for Compensation for Violating the Labor Contract Provisions of the Labor Law," "if employers deliberately delay concluding labor contracts and cause damage to laborers, they shall compensate the laborers," the laborers can also claim compensation, and the scope of compensation includes losses in labor income, labor protection benefits, and medical treatment for work-related injuries. Therefore, even if employers do not conclude written labor contracts with laborers, as long as an actual labor relationship exists, they should be legally protected. 30. Can employers charge deposits, guarantees, or confiscate employees' ID cards or other documents from migrant laborers? Some employers, when concluding labor contracts with migrant laborers, propose to collect money or physical objects as deposits to enter the factory, or illegally confiscate the resident ID cards or other documents of laborers, both of which violate the state's provisions on establishing labor relationships on the basis of equality, voluntariness, and consultation. To this end, the former Ministry of Labor, the Ministry of Public Security, and the All-China Federation of Trade Unions issued the "Notice on Strengthening Labor Management in Foreign-invested Enterprises and Private Enterprises and Effectively Protecting the Legitimate Rights and Interests of Employees" (Labor Ministry Document No. [1994]118) and the "Reply to the Letter on Whether State-owned and Collective Enterprises Can Refer to the Provisions of the Labor Ministry Document No. [1994]118" (Labor Office Document No. [1994]256), which clearly prohibit the collection of deposits, guarantees, and various forms of deposits (physical objects) and ID cards when establishing labor relationships in state-owned, collective, foreign-invested, and private enterprises. According to the provisions of the former Ministry of Labor's "Opinions on Implementing Several Issues of the Labor Law of the People's Republic of China" (Article 24), employers shall not collect deposits, guarantees (physical objects), or deposits (physical objects) in any form when concluding labor contracts with laborers. For violations of the above provisions, labor security and public security departments shall, upon receiving reports and verifying them, order employers to immediately return the collected money, items, or ID cards to laborers.