Freshmen, about tripartite agreement

After the one-hour lecture, Mr. Shi also answered the students' personal questions on the spot. Because there are many questions, it is inevitable that there will be repeated topics. In order to facilitate my friends to read, I will summarize all kinds of questions one by one as follows:

1. After I signed the labor contract with the employer, the other party promised to implement the household registration and fulfilled it, but at this time I want to break the contract. Excuse me, if I propose to break the contract, will my account be affected? What should I do if I want to leave my hukou in Beijing?

Lawyer Shi: There are two aspects about hukou that students should understand: the hukou of general graduates falls to the location of the employer after the signing of the labor contract, and the hukou is under the jurisdiction of the state public security organ, and the employer has no right to dispose of the employee's hukou. So the account will not be moved unless I want to. If you breach the contract, you only need to bear the liability for breach of contract, and the account will not be affected.

If you want to keep your hukou in Beijing, you only need to sign a new employer in Beijing (you can receive the hukou), join the unit collective hukou, or set up a new household with yourself as the head of the household.

2. When I signed the tripartite agreement with the employer, the remarks column stated the household registration, housing, settling-in expenses, training, various benefits and other issues. Excuse me, if there is no labor contract, is this agreement still valid?

Lawyer Shi: Still valid. If you sign a labor contract and your benefits are changed, it will be regarded as a change to the original contract, and the new contract shall prevail. If the two do not conflict, they are still valid. If the new contract changes the contents of the original contract, the newly signed labor contract shall prevail.

The contract I signed with the employer stipulates that the service period of the company is five years. The contract did not mention the issue of liquidated damages. It simply says that if employees leave their jobs less than five years after graduation, they need to pay 300% of the total salary and other expenses. Is this agreement legal?

Lawyer Shi: This is illegal. Punitive damages cannot be stipulated in the labor contract, and the compensation must be based on his actual losses.

For the training funded by the employer, there are two agreements in the service period agreement, one is the agreement on liquidated damages, and the other is the agreement on compensation for losses. Liquidated damages refer to the liquidated damages that you have to bear if the laborer can't perform the contract and return to work, even if there is no loss. The upper limit of liquidated damages in Beijing is not higher than the total wages 12 months; Regarding the various training and learning expenses paid by the unit to the workers, if the employer calculates the training and other expenses in the liquidated damages, then the workers do not need to pay. If it is not reflected in the content of liquidated damages, but the loss is listed as an agreement to compensate for the loss, it is necessary to pay the loss.

4. In the tripartite agreement, the employer promised to pay the settlement fee of 200,000 yuan, but when signing the labor contract, the employer overturned the agreement in the tripartite agreement. If I don't sign, it will affect my job search again during this time. What should I do?

Lawyer: When the workplace is remote or the conditions are difficult, the employer will generally make similar commitments to attract and appease talents. According to relevant laws and regulations, the agreement to change 200,000 yuan must be agreed by both parties through consultation. If you don't agree to the change, then the employer should strictly follow the original tripartite agreement. So you can ask the other party to resolutely fulfill the commitment of the tripartite agreement. If the other party fails to perform, you can ask the other party to compensate you for your personal losses. Considering that your personal relationship has been transferred to the local area and you can only find a job in this place for the time being, then you can claim a part of 200,000 family expenses as a loss. Of course, you can advocate it all, but the law will not support it all.

I signed a labor contract with a company in Beijing, and agreed to pay the employer a penalty of 654.38+10,000 yuan in case of breach of contract. What is the specific calculation method of liquidated damages in Beijing?

Lawyer: The labor service period is agreed to be five years, which is the practice of general hospitals. Before the promulgation of the new law, the upper limit of liquidated damages in Beijing is still based on the wage standard of 12 months. What needs to be pointed out here is that the liquidated damages stipulated in the agreement (contract) refers to the "monthly salary" income, that is, the fixed expenses paid by the employer every month after the laborer pays the labor (the fixed income fixed on the salary card every month), which does not refer to the basic salary and does not include the incentive expenses (such as bonuses, etc.). ).

Take your situation as an example, the liquidated damages stipulated in the labor contract are100000 yuan. If the amount of liquidated damages is higher than 12 monthly salary standard, the excess part is invalid, and if it is lower than this figure, it is effective. The specific algorithm is: monthly salary ×20.92 (days).

6. What is the legal relationship between the parties to the labor dispatch? Under this relationship, what is the status of employees' household registration and personnel files. , where did it fall? If the jump is broken, what will happen to the account and file?

Lawyer Shi: The labor relationship is like this. For example, we serve in some foreign-related medical institutions in two forms. One form is that this medical institution is an office and has no right to work; Another form is that foreign-funded enterprises have the right to work, but in order to save trouble, taking into account some difficult links such as insurance and household registration, they will also entrust their employees out. Here, workers have labor relations with talent dispatch companies and sign labor contracts with them, and insurance and wages are paid by them. It is equivalent to the labor services provided by talent dispatch companies to employers by sending their own employees to work in foreign-funded enterprises. In Shanghai, people call it special labor relations, while in Beijing, they think there is no direct relationship between them. Hukou, personnel files and insurance files are also in the talent dispatch company. However, the fact that the registered permanent residence is in a talent dispatch company does not mean that the talent dispatch company has the right to dispose of the registered permanent residence, but only reserves the right. If the jump is bad, accounts and files can be moved to new units. When conditions are ripe, you can also open a separate account.

7. The contract between me and the employer stipulates that the service period is three years. I'm worried that if I resign during the service period, the employer will withhold my account and other personnel relations and demand compensation from me. Is my worry necessary?

Lawyer Shi: It is totally unnecessary. No enterprise has the right to dispose of accounts. The registered permanent residence is not managed by the employer, but by the employer. The employer is only the head of a collective account, and he only has the right to keep it. In addition, no employer may claim compensation from individuals on the grounds of withholding certificates and other important labor materials.

8. In Beijing, if some units try for two months before signing the contract, and there is no written agreement, should I go?

A: Legally speaking, any employer who requires workers to work for them (establish labor relations) must sign a formal labor contract. If the signature is illegal, it will be fined by the labor inspection department. In my impression, missing a contract is a fine of 500.

Of course, when such a thing happens, the employer asks us to pay the labor, and they pay the labor remuneration. Legally, we call it factual labor relations, so there is no question of probation. The rule of factual labor relations in Beijing is that if you want to dismiss, you must also go through the procedure of dissolving the labor contract. What is special here is that if an employee refuses to dismiss, the employer must sign a labor contract with the employee. If the service period of signing a labor contract cannot be agreed through consultation, then the law stipulates that it is one year.

9. I would like to ask the students to break the contract after the signing of the tripartite agreement. Does the school have the right to collect liquidated damages from students at this time?

Lawyer: In the tripartite agreement, both parties have rights and obligations, namely the laborer and the employer. If a student wants to break the contract, unless there is a special agreement between the student and the school, under normal circumstances, the school can't charge the student liquidated damages.

10, the employer applied for a Beijing hukou for me, but at this time, I took a fancy to another company, so I proposed to the original unit to cancel the contract, and they demanded liquidated damages from me on the grounds of applying for a Beijing hukou fee? Is it legal?

Lawyer Shi: Under normal circumstances, if the contract clearly states that the student's registered residence is in Beijing, the expression is similar to: I will register you in Beijing, so how long will you provide me with labor services, and you will have to pay liquidated damages if you violate it ... This can be regarded as special treatment, and the law will support the employer's request for liquidated damages. If this inaccurate statement is special treatment, this agreement has little to do with the payment of liquidated damages. After the student decides to breach the contract, the employer can't ask the student to compensate for the loss. However, if the liquidated damages are agreed, the students still have to bear them.

1 1. I signed a labor contract with an employer in Shanghai. At that time, the terms of Shanghai hukou were stipulated in the terms. However, at the time of formal application, due to the new policy issued by the Shanghai municipal government, the employer no longer meets the requirements of being a registered employee, so now I can't apply for a Shanghai account for myself. In this case, can I sue the employer to fulfill the promise in the contract?

Lawyer Shi: This involves the exemption clause in the contract. This situation is accidental, inevitable and unpredictable. If the policy changes, it is unpredictable and inevitable for enterprises. This is the waiver.