There Must Be A Valid Reason For Changing Employee Work Place.

The Beijing Higher People's court and the Beijing labor and personnel dispute arbitration committee jointly issued the "answers to the law application of labor dispute cases".

The reporters reviewed the 8 questions concerning the confirmation of labor relations, job and work place, labor contract failure, labor contract dissolution, no written contract and contract term, paid annual leave, wage standard, calculation basis of various disputes, social insurance and so on.

From today, the newspaper has published the relevant contents in two phases.

Q: "the Supreme People's court's provisions on Several Issues concerning the administration of industrial injury insurance cases" (French interpretation [2014]9) third article 1, the fourth "organization of employment" and "organizations or natural persons who do not have the qualification of the main body of employment", and how to deal with the disputes between the "affiliated units", "individuals" and "workers and staff members who suffer from casualties" (fifth) in the fifth items.

Answer: "employment units", "affiliated units" and "casualties due to work (personnel)" is not a labor relationship or employment relationship.

"Employing units" and "affiliated units" are only units responsible for work-related injury insurance.

"The organization or natural person who does not possess the qualification of the main body of employment" or "individual" and "workers and staff members who are injured by work" are not labor relations but employment relations.

The social security administration "

"," affiliated units "and" labor casualties (staff) "do not have labor relations, and make a decision to refuse to accept an application for industrial injury or to decide not to recognize industrial injury, which is an administrative dispute.

The unit that bears the liability for work-related injury insurance shall bear the liability for compensation or the social insurance agency shall pay the industrial injury insurance benefits from the industrial injury insurance fund, and the disputes arising from the recovery of "organizations or natural persons who do not have the qualification of the employment subject" or "individual" shall not belong to the labor dispute.

Q: the employer will issue the business to the employer (including the organization of the qualified person's main body) and the individual operator who is the principal qualification of the useful person, and how to deal with the disputes between the workers engaged in the contract business and those mentioned above?

Answer: there should be a labor relationship between the employer and the employer in the principal qualification of the useful person, but there is no labor relationship between the employer and the employee.

Key words 2 jobs and working places

Q: how should employers adjust their work posts?

Answer: the agreement between the employer and the worker can be adjusted according to the production and operation conditions.

The employer's unit has proved that the production and operation situation has changed, and the post adjustment is a reasonable category. The employer should adjust the work position of the laborers.

If the employer and the worker do not specify a job or an agreement is not clear in the labor contract, the employing unit shall reasonably adjust the work position of the employee belonging to the employing unit's independent employment according to the production and operation needs.

The following factors should be taken into account in judging Rationality: the necessity and purpose of the employing unit to be justified, and the post adjustment is not adverse to the working conditions of the workers, such as wages and wages.

Where the labor contract signed by the employer and the laborer clearly stipulates the position but does not specify how to adjust the posts, if the employer fails to comply with the circumstances specified in the fortieth article of the labor contract law, if the employer adjusts the work position of the employee in violation of the contract breach and causes losses to the worker, the employer shall make compensation and reissue the difference according to the original post wage standard.

For workers who advocate the restoration of their original posts, they should be treated according to the actual situation.

If it is difficult to restore the original post after examination, it can be explained that the workers are advocating the rights separately. After explanation, the workers still insist on restoring the original work posts, and they may refuse the request.

If the employer adjusts his salary while adjusting his post, and the worker accepts the post adjustment but does not accept the adjustment of wages at the same time, the employer shall explain the reason for adjustment.

We should comprehensively judge whether the violation of the legitimate rights and interests of laborers is based on the actual situation of employers, the nature of post adjustment, and the contractual stipulations of both parties.

Q: employers and workers broadly stipulate the working place in the labor contract as "the whole nation" and "Beijing". When the employer adjusts the working place of the worker in the process of performing the labor contract, the worker disagrees, and the employer decides whether to support the decision to terminate the labor contract according to the rules and regulations.

Answer: employers and workers broadly stipulate the working place in the labor contract as "the whole nation" and "Beijing". If there is no special hint about the mode of operation of the employing unit and the characteristics of the work place of the workers, the agreement is unknown.

A worker who has worked in the actual place of execution after signing a labor contract shall be regarded as the specific working place for both parties.

The employer shall not change the working place of the worker without justification on the ground that the place of work is agreed to be "national" and "Beijing".

The employer and the worker clearly stipulate that the employer may unilaterally change the work place in the labor contract.

In addition to considering the impact on workers' lives, we should also consider whether the employer has taken reasonable remedial measures (such as providing pportation subsidies, shuttle buses).

Q: does the worker actually perform the contract according to the changed place of work, and does he support the change of validity of the labor contract on the ground that the written form is not written?

Answer: the laborer has actually fulfilled the contract according to the work place after the change, and he has applied the eleventh provision of the Supreme People's Court on the interpretation of the applicable law of the Supreme People's Court on the application of the law (four) in the absence of written form.

Key words 3 labor contract can not be fulfilled

Q: after the employer unlawfully terminates or terminates the labor contract, what is the case that the laborer demands to continue to perform the labor contract?

　　答：劳动合同确实无法继续履行主要有以下情形：(1)用人单位被依法宣告破产、吊销营业执照、责令关闭、撤销，或者用人单位决定提前解散的;(2)劳动者在仲裁或者诉讼过程中达到法定退休年龄的;(3)劳动合同在仲裁或者诉讼过程中到期终止且不存在《劳动合同法》第十四条规定应当订立无固定期限劳动合同情形的;(4)劳动者原岗位对用人单位的正常业务开展具有较强的不可替代性和唯一性(如总经理、财务负责人等)，且劳动者原岗位已被他人替代，双方不能就新岗位达成一致意见的;(5)劳动者已入职新单位的;(6)仲裁或诉讼过程中，用人单位向劳动者送达复工通知，要求劳动者继续工作，但劳动者拒绝的;(7)其他明显不具备继续履行劳动合同条件的。

Q: if the workers and employers are in dispute over whether the labor contract is illegal or not, and if the laborers want to continue to fulfill the labor contract, the original unit has submitted other units' credentials for the workers to pay social insurance. In this regard, it is argued that the labor relations between the labourers and the new units have already been formed. Can the social insurance payment records be used as the basis for determining the labor relations between the laborers and the new units?

Answer: we should not merely record social insurance payments as the basis for determining the relationship between workers and new units.

But at this time, the burden of proof is pferred, and the laborer proves that it is not labor relations with the new employer.

If the laborer can not make a counter evidence, it is confirmed that the labor contract of the employee and the original employer can not continue to perform according to the record of social security payment between the new employer and the employer.

The new employer is not the party involved in the case. The record of social security payment between the laborer and the new employer is only the reason for the fact that the labor contract is really unable to continue to perform. It should not form a labor relationship between the referee and the new employer.

Key words 4 termination of labor contract

Q: how should the employer terminate the labor contract in accordance with the provisions of item 1 of article thirty-ninth of the labor contract law?

Answer: the employer has confirmed that the employment conditions have been clearly informed to the laborers, and provides evidence to prove that the workers do not conform to the employment conditions during the probation period. They may terminate the labor contract in accordance with the provisions of item 1 of article thirty-ninth of the labor contract law.

Laborers who do not conform to the employment conditions are: (1) workers violate the principle of good faith and have concealment or factual facts about their own basic situations that affect the performance of the labor contract; (2) when there are errors in the work during the trial period, the identification of the work errors is judged by the relevant provisions of the labor law, the rules and regulations of the employing units and the contents of the contract between the two parties; (3) the two parties agree to assess other employers who are not satisfied with the employment conditions.

Q: what are the major changes in the objective conditions of the labor contract concluded when the labor contract is concluded in the third clause of the fortieth clause of the labor contract law?

Answer: "the major changes in the objective situation based on the conclusion of the labor contract" refers to the unforeseen changes in the conclusion of the contract after the conclusion of the labor contract, resulting in the failure to perform all or the main clauses of the labor contract concluded by both parties, or if the performance of the labor contract is too high, the unfair situation will result in the realization of the purpose of the labor contract.

The following situations are generally "significant changes in the objective situation on which the labor contract is concluded": (1) force majeure caused by natural disasters such as earthquakes, fires, floods, and so on; (2) major changes in the employing units' pfer, asset pfer or stop production, pfer of production and pfer (change) system by changes in laws, regulations and policies; (3) changes in the scope of operation of the employing units in the nature of franchise.

Question: if the worker does not belong to the provisions of the thirty-eighth clause of the labor contract law, the worker shall terminate the contract in advance of the time limit stipulated in the labor contract, and the employer refuses to continue to perform the special economic remuneration and welfare benefits outside the stipulated normal labor remuneration, or require the laborer to return to the special economic treatment of the normal labor remuneration and welfare, and how to deal with it?

Answer: employers not only pay normal labor remuneration to workers, but also give special treatment to workers such as automobiles, housing, housing subsidies and so on. There is a definite agreement between the two sides on the relationship between special treatment and the agreed working period. Although there is no definite agreement, it can be determined that the employer is giving special treatment to workers on the basis of the working time limit of the laborers. Because the worker fails to fulfill the contract, the employer can refuse to pay special treatment on the corresponding part of the employee's failure to perform the contract, and the pre paid payment can be returned according to the proportion of the photo.

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