Why a good social security system and a strong trade union organization may be bad for workers?

Abstract: With the transfer of a large number of rural surplus labor to cities, the already tense employment pressure is more prominent. In this atmosphere, the legitimate rights and interests of workers as vulnerable groups are often threatened. In order to keep their jobs, they had to submit to humiliation and make various concessions. Faced with the unfair treatment of workers, we have an obligation to appeal to the society to safeguard the rights and interests of workers, coordinate labor relations and make contributions to social stability and economic prosperity.

Key words: employment right, salary right, rest right, safety and health right, social insurance right, labor dispute.

With the deepening of economic system reform and the adjustment of rural industrial structure, while a large number of rural surplus labor forces are transferred to cities, the number of new labor forces and laid-off workers in cities and towns is also increasing. Due to the excessive supply of labor force in China, the long-term growth far exceeds the employment demand, and the pressure of labor and employment is very great and will exist for a long time. In this case, the weak position of workers in employment is more obvious, which directly leads workers to pay more attention to labor opportunities, and indirectly leads workers to give up the protection of legal rights in order to "keep their jobs" when their labor rights are violated, thus increasing the infringement of employers. According to statistics, more than 80% of labor disputes are caused by employers infringing on the legitimate rights and interests of workers. It can be seen that under the severe employment situation faced by such workers and the new trend of rising labor dispute cases involving more and more workers, protecting the legitimate rights and interests of workers will be related to social stability and sustained economic development, and also to the process of governing the country according to law in China. How to protect the legitimate rights and interests of workers is a problem of our whole society and we will have to think deeply.

First, protect the employment rights of workers.

Workers' right to employment is a basic right given to workers by our constitution. It is a qualification given by law to citizens who have the ability to work and get paid for their work through labor. Including workers' equal right to employment and the right to choose their own jobs, the right to employment occupies the primary position among all labor rights and is the right to survival of workers.

(1) Protect the equal employment rights of workers. Article 12 of the Labor Law of People's Republic of China (PRC) stipulates that workers shall not be discriminated against because of their age, race, sex and religious belief when obtaining employment opportunities. "Labor Market Management Regulations" Article 7 When employing employees, the employing unit shall not refuse to employ or raise the employment standards on the grounds of gender, race or religious belief, except that it is not suitable for the jobs or posts specified by the state. Giving workers equal employment rights is conducive to promoting equal competition among workers and realizing social justice. It can be seen that if the conditions such as gender and belief are restricted in the job advertisement, it must be a job or post specially stipulated by the state, otherwise it is an illegal job advertisement. For example, a Sino-foreign joint venture in a certain city advertised in the local daily newspaper: "Our company is a Sino-foreign joint venture with a total investment of 6,543,800,000 US dollars, which is very strong. Now we are recruiting 265,438+00 workers. The conditions are as follows: male or female, all require high school education or above (limited to science classes due to production needs), have official urban hukou in this city, be in good health, and be under 24 years old. " There are other terms. However, two students, a man and a woman, both graduated from high school and got their wish. The woman was not hired. When asked by the company's personnel department, the manager told her, "Your education is too low to be suitable for the company's work, so you were not hired." Hu believes that he has the "high school diploma" required in the job advertisement and meets the conditions of "high school education or above". The personnel manager told Hu that the general manager of the company specifically pointed out that male employees should have a high school education or above, and female employees should have a college education or above. The original statement is due to space constraints, "college education or above is also a high school education or above, which is not contradictory." Hu believes that the standards of the company before and after were different, which led him to quit his original job and now there is no job to do. Moreover, the work of Yongsheng Household Appliances Company does not require high physical strength, so the recruitment standards for men and women should be the same. Hu also learned that Peng, the general manager of the company, once said that "there are too many things for female employees in the future, which is not as good as male employees" and instructed the company's personnel department to treat them differently. It is quite common to raise the employment standard of female workers at will or even refuse to hire female workers. If enterprises recruit people according to this standard, it will be more difficult for women and those laid-off workers who are older to find jobs. The author believes that the lack of clear and specific legal sanctions against employment discrimination, coupled with people's weak awareness, and some advertising production departments, publishing departments, and advertising review departments have not seriously performed their review duties, making this job advertisement that violates the labor law look "legal". At present, this illegal recruitment advertisement has a trend of continuous development. It is suggested that the relevant departments improve the laws and regulations on job advertisements and have more specific review procedures for job advertisements; Punish "employment discrimination" and vigorously guide and publicize people's ideas.

(2) Protecting the right of workers to choose their own jobs. The right of workers to choose their own jobs is the legal embodiment of their independence of personality and freedom of will. Choosing a job independently is conducive to exerting their intelligence and enthusiasm, improving labor efficiency and establishing new, stable and harmonious labor relations. Article 3 of the Labor Law clearly stipulates that workers have the right to choose their own jobs. Article 31 of the Labor Law stipulates that a laborer shall notify the employing unit in writing 30 days in advance when dissolving the labor contract. Zhang, a vocational high school graduate, was assigned to work in a joint venture hotel and formally signed a two-year labor contract with the hotel. One month before the termination of the labor contract, Zhang asked the hotel not to renew the contract with the hotel after the contract expired. The hotel personnel department agreed and replied to Zhang and went through the formalities one month later. A month later, when Zhang found the hotel with the business transfer letter from the receiving unit and asked for the transfer procedure, the person in charge of the personnel department suddenly said, "Transfer is ok, but the training fees for the next three years must be paid in full before the transfer procedure can be handled." Zhang believes that it is illegal for the hotel to charge training fees, because it signed a two-year labor contract with the hotel, and he neither received hotel training nor terminated the contract in advance. The store took out the "Instructions for Employees" and said it was an internal regulation. After many times of loan collection 1200 yuan, we went through the check-out procedures. For hotels, it is quite common in some enterprises that employees do not renew their labor contracts when their contracts expire, and hotels forcibly charge training fees. The author believes that the right of workers to choose a job includes two aspects. On the one hand, workers have the right to choose employers according to their own wishes and interests when they are employed, and they are not forced by external forces; On the other hand, workers have the right to resign after employment. At present, the infringement of workers' right to choose a job is mainly manifested in the infringement of workers' right to resign. First of all, employers attach unreasonable conditions when signing labor contracts with workers, such as excessive liquidated damages and work deposits, which make workers pay greater economic costs after leaving their jobs; On the other hand, after workers leave their jobs according to law, they detain files and certificates and ask them for "storage fees" and training fees, especially for newly graduated workers. It is suggested that there should be a reasonable limit on liquidated damages in the labor contract to minimize the existence of obviously unreasonable liquidated damages. The labor department and the public security department should jointly increase the punishment for illegal acts of withholding workers' household registration files and certificates, and effectively protect the rights and interests of legal migrant workers.

Second, protect workers' right to remuneration.

China's constitution clearly stipulates the protection of workers' right to labor remuneration, and proposes to gradually improve labor remuneration and welfare benefits on the basis of developing production. Laborers' remuneration is the legal income paid by the employing unit after their labor, which should be confirmed and protected by law. In order to protect workers' right to remuneration from infringement, Chapter V of the Labor Law stipulates that wage distribution should follow the principle of distribution according to work and equal pay for equal work. The state implements a minimum wage guarantee system, and employers pay workers' wages. The so-called salary refers to the labor remuneration paid directly by the employer to the workers in the unit in the form of money according to the relevant provisions of the state and the labor contract. Wage is the main component of workers' income. Under normal circumstances, workers have the right to be paid according to their labor requirements as long as they complete certain work according to the agreement under the command of the employer. The right to labor remuneration is the core of labor rights, which is not only a powerful guarantee for workers and their family life, but also a social recognition and evaluation of their labor. At present, the problems existing in workers' right to receive labor remuneration are mainly manifested in the employer's arrears of wages to workers, wages below the minimum wage standard stipulated by law, and non-compliance with labor laws to pay overtime wages.

(a), the phenomenon of wage arrears of workers is relatively common and serious. With the increasing employment pressure, the phenomenon of wage arrears for workers, especially migrant workers, is almost everywhere. Every time the Spring Festival approaches and the workers go home for the New Year, "spectacular scenes" are staged, and even Premier Wen, who is busy with work, is begging for wages for the workers. Although this situation shows Premier Wen's sympathy for people's lives and the protection of workers' rights, who can deny that this is a true portrayal of the bad nature of wage arrears? The author believes that the reasons for wage arrears are as follows: On the one hand, laws and regulations punish enterprises with wage arrears too lightly. Under normal circumstances, as long as the employer is in arrears, the more serious workers will only be fined 25% of the wages in arrears, which is too light for the employer and unfair to the workers; On the other hand, there is no special unified wage law in China to regulate this. Although there are preparations for wage legislation in many places, the current legal basis is still insufficient. On the other hand, the labor department is not firm enough to punish enterprises that arbitrarily deduct, default or depress wages, and the processing time is too long. It is suggested that law enforcement departments should prevent the occurrence of wage arrears of workers from the source, strengthen labor security supervision and law enforcement, generally establish a reporting system, severely investigate and deal with wage arrears of workers, and establish a heavy punishment mechanism if they find that they are in arrears with wages, so that those units that maliciously pay wages will not be worth the loss and dare not delay; On the other hand, workers' awareness of self-protection should also be strengthened. It is reported that some units stipulate that wages should be paid on time, and some migrant workers voluntarily give up the right to pay wages in time in order to save trouble or prevent losses, giving those units that deliberately violate the rules an opportunity.

(2) The salary is lower than the minimum wage. The so-called minimum wage refers to the minimum labor remuneration paid by the employer when the workers perform their normal labor obligations within the legal working hours. Article 48 of the Labor Law of People's Republic of China (PRC) stipulates that the state implements the minimum wage guarantee system. The specific standard of the minimum wage shall be formulated by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government and reported to the State Council for the record. The wages paid by the employer shall not be lower than the local minimum wage. However, it is very common for some employers to evade the minimum wage guarantee system by calculating wages by "piecework system". We can often see that some factories implement piece-rate wage system, and workers get more for more work, and their wages are not capped and guaranteed. However, the work standard set by the employer is too high. Ordinary workers leave Man Qin with wages below the minimum wage, forcing them to work overtime, plus overtime pay, which exceeds the minimum wage. Although this has played a certain role in mobilizing the positive performance of workers, it has violated the rights of workers to guarantee the minimum wage.

Third, protect workers' right to rest.

The right to rest is the basic right given to workers by China's Constitution and labor laws and regulations, and it is one of the goals of labor legislation. Protecting workers' right to rest is to protect their health and labor safety. Only by respecting the right to rest, creating rest conditions and allowing workers to have enough rest and adjustment can we better put into work and better mobilize the enthusiasm of workers. According to the news of 165438+ Beijing News, Southern Metropolis Daily1October 8th,165438+1October 7th, nearly 1,000 employees in a factory in Qiaodong Ring Road, Panyu City, Guangzhou were dissatisfied with "working nearly 12 hours a day, working almost every day, every day. But the monthly salary is only 400 yuan's basic salary, and the overtime pay is 2 yuan per hour. Only 600 yuan is available every month, so the factory still owes one month's salary. "And gathered at the gate of the factory, asking the factory to raise the basic salary, ensuring that employees can take a day off every week and pay wages on time. China's "People's Republic of China (PRC) Labor Law" clearly stipulates in Article 36 that the state implements a working hour system in which laborers work no more than eight hours a day and no more than 44 hours a week on average. Article 38 stipulates that the employer shall ensure that workers have at least one day off every week. Obviously, the factory's practice has seriously violated the relevant provisions of the Labor Law. The legitimate rights and interests stipulated by law must be won through strike struggle. The appearance of this embarrassing situation reflects the dilemma of the rights and interests of some workers. With so many workers, why didn't anyone take up legal weapons to defend their rights? I believe everyone must know that whoever takes the labor law to court with the factory where he works, or mediates through legal channels, the result may be "a dead end": he is dismissed by the factory after receiving the salary in response. Perhaps this is the fundamental reason why some people prefer to leave the factory, while others prefer to strike rather than choose legal channels to solve the problem. This reflects the "double dilemma" of some workers' rights and interests: workers have to make the only choice between survival and rights and interests, or workers demand legitimate rights and interests and are expelled from the factory; Or be deprived of some legal rights in order to keep a job. Obviously, it is sad to make the only choice between the two, which are also necessary for survival. The emergence of this situation is also the actual embarrassment of the law: on the one hand, the strong openly violates the law, on the other hand, the legitimate rights and interests of the weak are violated, but they are unable to take up the law to confront it. Today, with sound laws, workers who are unwilling to make the only choice still adopt relatively primitive forms of struggle, which is undoubtedly a great sorrow of civilized society. When individual rights and interests are infringed and cannot be solved through legal channels, group rights protection must be regarded as the best choice, and how to deal with such social contradictions is not a simple enterprise behavior or individual behavior. It is suggested that the government should strengthen the protection of citizens' legitimate rights and interests, and severely crack down on those units that are strongly reflected by the masses and have evidence. In addition to taking compulsory measures to protect employees' rights and interests, it is also necessary to investigate the administrative responsibilities of relevant leaders, so that those in power who violate employees' rights and interests have worries.

Fourth, protect workers' labor safety and health rights

The right to labor safety and health protection is a basic labor right for workers to require employers to provide safe and hygienic working conditions and protect their lives and health. China's constitution stipulates: strengthen labor protection and improve working conditions. According to the Constitution, China has formulated a series of labor protection laws and regulations and established various labor safety and health management systems. Chapter VI of the Labor Law stipulates the labor safety and health system, and stipulates that workers have the right to obtain labor safety and health protection. Article 54 stipulates: "The employing unit must provide workers with labor safety and health conditions and necessary labor protection articles that meet the requirements of the state, and shall conduct regular health examinations for workers engaged in occupational hazards." Article 56 also stipulates: "Laborers have the right to refuse to carry out the illegal command of the management personnel of the employer and force them to take risks; Have the right to criticize, report and accuse acts that endanger life safety and health. " Chapter 7 also provides special protection for female workers and underage workers. In order to effectively strengthen labor protection, the state also requires employers to establish various labor safety and health management systems through the provisions of labor legislation such as the Mine Safety Law, the Work Safety Law and the Occupational Disease Prevention Law. Users closely combine the administrative management of labor protection with the technical management of safety and health, forming a set of system that runs through daily work, effectively protecting the safety and health rights and interests of workers. But even so, mine accidents, pulmonary selenium diseases and other incidents that violate the labor safety and health management system still occur from time to time in China every year. In 2004 alone, many serious mine accidents occurred. According to the newspaper, when the reporter asked the miners why they wanted to work underground because of poor underground safety conditions and frequent mine accidents. The miner's answer surprised the reporter and replied, "If you go underground, it will cost you more than 1000 yuan a month. If you don't go underground, your family's life will be unsustainable!" In order to survive, the miners risked their lives. And those private miners who ignore the lives of miners, but put aside the provisions of laws and regulations, only pay attention to their own money. They are also frantically saying, "China lacks everything except people. You don't do it! " This kind of thing happens from time to time, which fully reflects the lack of supervision of safety and health system in China at present. It is suggested to strengthen the inspection of mine safety and health, increase the punishment for the person in charge of the enterprise who violates safety and health, curb the trend of high incidence of mine accidents and occupational diseases, effectively protect the safety of workers' lives and property, and protect the labor safety and health rights and interests of workers through various systems.

Verb (abbreviation of verb) protects workers' social insurance rights.

Article 72 of the Labor Law of People's Republic of China (PRC) * * * Employers and employees must participate in social insurance and pay social insurance premiums according to law. It is compulsory for employers to pay social insurance for workers, which is the legal obligation of employers, an indispensable social security system to ensure the basic life of workers and improve their living conditions, and an important social policy of the country. However, at present, some employers find various reasons not to apply for social insurance for workers. I have heard of such a company, and the number of employees who pay insurance accounts for only half of the total number. But also rationalized what is a temporary post and what is a fixed post, and the unit only pays insurance to people in fixed posts. Employees who are engaged in temporary positions should take out insurance by themselves, which is a personal matter. Social insurance for employees is a reward. The company decides whether to apply for social insurance, and also allows new employees to sign agreements not to apply for social insurance. The company will try its best to dismiss those employees who are ready to claim their rights and interests. This directly leads workers to dare not claim their rights in order to have a job, knowing that their social insurance rights have been violated. There are also some private "small bosses" who are exporting. "I am the law here, and I will do whatever I want"; Moreover, the relevant procedures for dissolving labor relations have not been handled according to regulations, which has brought great inconvenience to workers in claiming legal rights, handling unemployment procedures and finding jobs in the next step. There is another situation: when workers claim their other legal rights, such as overtime pay and social insurance, they will be dismissed immediately by the employer, which also leads to workers giving up other rights in order to keep their jobs. This requires the intervention of the administrative department and in-depth surprise inspection of the employer, otherwise it will only look at the statements submitted by the employer and find nothing; And extensive publicity, so that social insurance is deeply rooted in the hearts of the people, so that employers consciously pay social insurance for workers, so that workers can supervise employers to do social insurance for themselves. Only in this way can it be more conducive to eliminating and alleviating social contradictions and play the role of "safety net" and "shock absorber" more effectively.

Six, several issues about handling labor disputes

Article 3 of China's Labor Law clearly stipulates that workers have the right to submit labor disputes for settlement, so that workers have the right to remedy when other rights are violated. Properly resolving labor disputes is conducive to protecting the legitimate rights and interests of workers and employers, coordinating labor relations, enhancing the legal awareness of employers and workers, improving the consciousness of both parties to fulfill their obligations, and maintaining normal production and operation order. However, as far as the procedures for handling labor disputes stipulated in the Labor Law are concerned, the author believes that there are still several issues that need to be discussed together.

First, the cost for workers to apply for handling labor disputes is too high. At present, the procedure for hearing labor dispute cases is the system of "one ruling and two trials". All labor disputes must be decided by the labor arbitration commission, otherwise the people's court will not accept them. However, the Arbitration Commission often refuses to accept cases of illegal employment, exceeding the appeal period and so on. Because without arbitration, the parties can't go to court, which undoubtedly indirectly deprives the workers of the right to request judicial relief in the case of illegal employment. In some cases, the arbitration commission considers that it is not a labor dispute and does not belong to its own jurisdiction, and issues a notice of rejection. After the parties bring a civil lawsuit to the people's court, the court considers it a labor dispute after hearing it, and informs the parties to apply for arbitration first. Due to the principled and general provisions of labor relations, many aspects of the real society cannot be included. Therefore, the author thinks it is necessary to make legislative or judicial interpretation of the scope of labor relations adjusted by the Labor Law, so as to unify understanding, especially to protect workers and distinguish the boundaries with other legal responsibilities when employers violate the law.

Second, the limitation of labor dispute application is too short, which is not conducive to safeguarding the legitimate rights and interests of workers. Because the limitation of labor dispute litigation is too short, workers often risk exceeding the limitation of arbitration. If a party requests arbitration, it shall submit a written application to the labor dispute arbitration committee within 60 days from the date when the labor dispute occurs, which means the day when the party knows or should know that his rights have been infringed. If a party applies for arbitration within the time limit, its request will not be supported. However, most employees, after some disputes, tend to take chances, hoping to solve them as gently as possible, such as asking people for help and finding relationships. It is when we look around like this that the statute of limitations rushes by. When workers take up the weapon of law to defend themselves, the law lights up a red light for them. The author suggests to expand the limitation of labor complaints in legislation, especially for continuous illegal acts such as overtime pay and wage arrears, which will be more in line with the legislative intention of labor law to protect the legitimate rights and interests of workers.

Third, the limitation of the enforcement effect of labor dispute cases. Under the market economy system, the contradiction between labor and capital is inevitable, and labor dispute arbitration has therefore become the focus of attention. Labor dispute arbitration is a quasi-judicial act and an important means to mediate the labor relationship between workers and enterprises, and its ruling results also have legal effect. Nevertheless, the results of labor arbitration are still difficult to be effectively implemented. The main reasons are as follows: first, a considerable number of people have a weak legal concept and lack due understanding of the legal authority of arbitration results; Second, labor dispute arbitration does not publicize itself enough, which makes many people lack a certain understanding of labor dispute arbitration; Third, the space given by law to the arbitration right of labor disputes is still very limited, and its legal authority needs to be strengthened. Based on this, the author calls on the relevant state departments to improve relevant laws and regulations from the perspectives of safeguarding workers' rights and interests, coordinating and stabilizing labor relations, and paying attention to improving judicial efficiency, so as to further clarify the status and authority of labor dispute arbitration, so as to better play the role of labor dispute arbitration.

Seven, some suggestions on protecting the rights and interests of workers.

The author believes that the understanding of the protection of workers' rights should not be limited to the protection of workers' specific rights.

Obstacles also include the understanding of the general laws that protect the rights of workers, so the author puts forward the following suggestions:

(a), strengthen the supervision and law enforcement of the labor administrative department, establish a supervision system, standardize enterprise behavior. It is an important way for labor inspection to regulate enterprise behavior by administrative means, and its role should be further played. The object of labor inspection work should focus on enterprises that often violate the rights of workers; The content of the work should focus on investigating and dealing with employers' arbitrary dismissal of workers, forced overtime, unpaid social insurance premiums, and deduction of wages; Working methods should be combined with accepting reports and investigations from employees and regularly and irregularly visiting enterprises for inspection and supervision, and illegal behaviors of enterprises should be corrected in time. For those who have been urged or ordered to rectify, great efforts will be made to correct the illegal behavior of the employer.

(2) Strengthening the construction of trade union organizations. Article 88 of the Labor Law stipulates that "trade unions at all levels shall safeguard the legitimate rights and interests of workers and supervise employers to abide by labor laws and regulations", which is the sacred right given to trade unions by the Labor Law and the basic duty of trade unions. At present, there are many labor infringements, and workers are in a weak position. As the representative of workers' interests, trade unions should further play their rights protection and coordination functions, so that workers and employers can have a more equal dialogue and safeguard their rights and interests in time. At present, most non-public enterprises have not established trade union organizations, which seriously restricts the function of trade unions, so it is necessary to strengthen the construction of trade union organizations. It is necessary to constantly enrich the strength of trade unions and equip them with necessary personnel to make them relatively independent organizations. Individual trade unions are too influenced by employers to bear the responsibility of safeguarding workers' rights and interests. It is necessary to strengthen the relative independence of trade unions and give full play to their role.

(3) Doing a good job in infringement prevention is the best legislation to protect workers' rights. The labor administrative department should change the current situation of passive handling of labor disputes and gradually form a new working mode of "focusing on prevention, active re-mediation and fair arbitration". Labor administrative departments should go deep into enterprises, investigate and study more controversial industries and enterprises, learn from workers and find out the causes of contradictions. Put forward countermeasures and suggestions to the labor infringement problems that are easy to occur, promote the standardized management of employers and prevent the occurrence of labor infringement. After the occurrence of labor infringement, the enterprise mediation Committee should first mediate and try to solve the contradictions within the enterprise. If mediation fails, it shall be settled through arbitration channels according to law. The labor arbitration committee should give more guidance to the enterprise mediation committee, help improve the professional ability and work efficiency of enterprise mediators, properly handle labor disputes, stop illegal acts, safeguard legitimate rights and interests, ensure that the rights and interests of both enterprises and workers are effectively protected by law, and realize the coordinated development of labor relations.

(4) Strengthen the publicity of labor laws and regulations to reduce the occurrence of labor disputes. In real life, there are a lot of unequal rights and obligations between employers and workers. Second, the employer relies on its dominant position, disobeys the law, replaces the law with power, and fails to perform its obligations according to law, which makes the phenomenon of infringing on the legitimate rights and interests of workers happen from time to time. Strengthening the publicity of labor laws and regulations can not only improve the consciousness of both workers to fulfill their obligations and abide by the law, but also help people to increase their legal knowledge and know how to safeguard their legitimate rights and interests through legal channels through the handling of specific cases. This can effectively reduce the occurrence of labor disputes, properly handle all kinds of disputes in time, learn lessons, sum up experience, stabilize society, and protect workers' rights more effectively.