What compensation should temporary workers get when they are dismissed?

In practice, many people misunderstand that as long as the employee has worked for 10 years, the employer must sign an open-ended labor contract with him. This view is wrong.

After the implementation of the new labor law, there are no more temporary workers, all of whom are contract workers. You have a factual labor relationship with the enterprise and have not signed a labor contract, so it has no basis to bind you, even if there is a mistake, you can't be dismissed. If he wants to dismiss you, he must sign a short-term labor contract with you first, and then terminate it after the contract expires. Of course, you can't sign a limited-term contract with him and stick to the previous indefinite contract.

If he wants to fire you now, you can sue him at the local labor inspection department. It is better to have evidence such as salary slips, and it doesn't matter if there is no evidence. The enterprise is responsible for proving that the enterprise has nothing to do with you, and he can't prove it.

If you sue him, the labor inspection department will definitely check him and find out the problem. At that time, he will not only sign a labor contract with you, but also make up social security and be punished.

First of all, the legal basis for China to conclude an open-ended labor contract at present includes:

1. Paragraph 2 of Article 20 of the Labor Law stipulates: "If the employee has worked continuously in the same employer for more than 10 years and both parties agree to extend the labor contract, if the employee proposes to conclude an open-ended labor contract, he shall conclude an open-ended labor contract."

2. Article 16 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases stipulates: "According to Article 20 of the Labor Law, if the employer should sign an open-ended labor contract with the employee but fails to sign it, the people's court may consider that there is an open-ended labor contract relationship between the two parties, and determine the rights and obligations of both parties with the original labor contract."

3. Article 20 of the Interpretation of Several Articles of the Labor Law issued by the General Office of the Ministry of Labor (Lao Ban Fa [1994] No.289) stipulates that "both parties agree to extend the labor contract" in this article means that the existing labor contract expires and both parties agree to extend it. Does not mean that the original permanent workers agree to conclude an open-ended labor contract.

4. Article 20 of the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of People's Republic of China (PRC) stipulates: "An open-ended labor contract refers to a labor contract without an agreed termination date. In accordance with the principle of equality, voluntariness and consensus, as long as the employer and the employee reach an agreement, they can sign an open-ended labor contract, whether they are employed for the first time or changed from a permanent job to a permanent job. "

5. Article 2 of the Notice of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System (No.354 issued by the Ministry of Labor) stipulates: "In the process of changing the fixed-term labor system into the labor contract system, if the employer proposes to conclude an open-ended labor contract, it shall conclude an open-ended labor contract with the laborer who meets one of the following conditions: (1) According to. (two) working long hours, within ten years from the statutory retirement age; (3) Demobilized veterans are employed for the first time; (4) Other circumstances stipulated by laws and regulations. "

6. The Notice of the Ministry of Labor on the Full Implementation of the Labor Contract System (No.360 issued by the Ministry of Labor (1994)) stipulates: "Regarding the renewal of the labor contract, the provisions of the second paragraph of Article 20 of the Labor Law should be seriously implemented. In addition, employers should take into account the differences between the two employment systems when concluding labor contracts with the original permanent workers. In order to realize the smooth transition from fixed-term restriction to labor contract system, for the old employees who have worked for a long time and are within the retirement age of 10, they should sign non-fixed-term labor contracts according to different contract periods stipulated in the labor law. At the same time, we should pay attention to protecting the interests of other old, weak, sick and disabled workers. "

7. Reply of the General Office of the Ministry of Labor to the Request for Instructions on Several Issues Concerning the Full Implementation of the Labor Contract System (Lao Ban Fa (1995) 19)

Article 1 stipulates: "On the issue of signing and renewing labor contracts. For employees who have signed labor contracts, it shall be implemented in accordance with the second paragraph of Article 20 of the Labor Law; For the old workers within 10 years from the retirement age, an open-ended labor contract is concluded according to the Notice of the Ministry of Labor on the Full Implementation of the Labor Contract System (No.360 issued by the Ministry of Labor [1994]). For other regular employees, in the process of changing the current new and old employment system, as a one-time transition mode, provinces, autonomous regions and municipalities directly under the Central Government can make some special regulations according to local conditions and from the perspective of protecting the interests of employees who work long hours. "

8. Article 3 of the Answer of the Ministry of Labor on Issues Concerning Labor Contracts in the Implementation of Labor Law (Order No.202 of the Ministry of Labor (1995)) stipulates: "The issue of signing labor contracts for permanent workers shall be implemented in accordance with Document No.360 of the Ministry of Labor (1994) and the provisions of the Labor Office of the Ministry of Labor (1995). According to the different contract periods stipulated in the Labor Law, the old employees who have worked long hours and are within 10 years from retirement age can sign an open-ended labor contract if required. For other regular employees, as a one-time transitional measure in the process of changing the current new and old employment system, all provinces, autonomous regions and municipalities directly under the Central Government can make some special regulations based on local conditions and from the perspective of protecting the interests of employees who work long hours. "

9. Article 1 of the official reply of the General Office of the Ministry of Labor to the Request for Instructions on Several Issues Concerning the Implementation of the Labor Contract System (Lao Ban Fa (1997) No.88) stipulates: "On the issue of temporary workers concluding labor contracts with no fixed term. After the full implementation of the labor contract system, the employer shall sign a labor contract with the employee and establish various social insurances for him according to law. For temporary workers who have worked in this enterprise continuously for 10 years, when renewing the labor contract, they should also conclude an open-ended labor contract in accordance with the provisions of the Labor Law, and specify their wages, insurance and welfare benefits in the labor contract. Employers and individuals shall pay social insurance premiums in accordance with state regulations and enjoy relevant insurance benefits. "

The above-mentioned legal provisions clearly stipulate the conditions, circumstances and scope of concluding an open-ended labor contract. According to the above provisions, for ordinary workers who have worked continuously in the same unit for 10 years (excluding the original transition period and special personnel), the conclusion of an open-ended labor contract must meet three conditions at the same time:

First, it is a major premise that workers who sign open-ended labor contracts must work continuously in the same unit for more than 10 years. Specifically, it means that the term of the labor contract signed by the laborer and the same employer reaches ten years without interruption. The employer has the right not to accept an employee whose working time is less than 10 years, even if he requests to conclude an open-ended labor contract.

Second, signing an open-ended labor contract must be based on the principle of equality, voluntariness and consensus, which is also one of the legal conditions. Only the employer or the employee has the will to renew the labor contract, and it is impossible to sign an open-ended labor contract.

The third and final condition is that the laborer proposes to conclude an open-ended labor contract. If the first and second conditions are met, the employer must agree to sign an open-ended labor contract as long as the employee asks. Otherwise, the laborer has the right to file a labor arbitration and ask him to perform his obligations.

Based on the above three points, when signing an open-ended labor contract, the above three conditions must be met at the same time. Those two views that workers can sign open-ended labor contracts as long as they want, or that employers can refuse to sign open-ended labor contracts without consent, are one-sided and wrong, and should be corrected.

The second is the misunderstanding of the change of open-ended labor contract.

Due to the lack of correct understanding of the system of non-fixed-term labor contract, many people think that the non-fixed-term labor contract is an "iron rice bowl" and a "lifelong system" and cannot be changed. Actually, this view is not comprehensive. Article 17 of China's Labor Law stipulates: "The conclusion and modification of labor contracts shall follow the principles of equality, voluntariness and consensus, and shall not violate the provisions of laws and administrative regulations." An open-ended labor contract is also a kind of labor contract. Like other types of labor contracts, the principles of negotiation and change in the labor law are also applicable.

According to the Labor Law, as long as both parties reach an agreement through consultation on the basis of equality and voluntariness, the contract term can be changed, that is, a fixed-term labor contract can be changed into an open-ended labor contract, and vice versa.

In addition to the term of the contract, the parties to an open-ended labor contract can also negotiate changes in the contents of the work, labor remuneration, working conditions, compensation liability for breach of the labor contract, etc.

Of course, when changing the terms of the contract, we should negotiate on the principle of voluntariness and equality, and we should not resort to coercion, fraud, concealment of facts and other illegal means. At the same time, it should also be noted that the changed content is not illegal, otherwise the change is invalid.

Third, the misunderstanding of the termination of the open-ended labor contract.

Many employers and workers also have a common misunderstanding about the termination of non-fixed-term labor contracts, mainly because they think that once a non-fixed-term labor contract is signed, it cannot be terminated. Therefore, many workers regard open-ended labor contracts as "amulets" and try their best to sign open-ended labor contracts with employers. On the other hand, the employer regards the non-fixed-term labor contract as a "lifelong burden" and tries its best to avoid the legal obligation of signing the non-fixed-term labor contract.

As a qualified old employee who has contributed to the "golden age" of the unit, the employer should sign an open-ended labor contract according to law and give reasonable protection. However, for qualified employees, the employer may terminate the open-ended labor contract.

It is wrong to think that a labor contract without a fixed term cannot be terminated. According to China's current legal system, as one of the different contract forms, there are three ways to terminate an open-ended labor contract, including negotiation, legal termination and agreement termination.

1, negotiation terminated. Termination by negotiation means that both parties agree to terminate the contract through consultation during the performance of the contract. Article 24 of the Labor Law stipulates: "The parties to a labor contract may terminate the labor contract through consultation." It can be seen that the open-ended labor contract can not only be changed through consultation, but also be dissolved through consultation.

2. Legal termination. Legal rescission refers to the legal rescission of a contract during its performance, and the parties have the right to terminate the contract. Article 25 of the Labor Law stipulates: "The employer may terminate the labor contract if the employee is under any of the following circumstances: (1) The employee is proved not to meet the employment conditions during the probation period; (two) a serious violation of labor discipline or the rules and regulations of the employer; (three) serious dereliction of duty, corruption, causing great damage to the interests of the employer; (4) Being investigated for criminal responsibility according to law. "

Article 26 of the Labor Law stipulates: "Under any of the following circumstances, the employer may terminate the labor contract, but it shall notify the employee in writing 30 days in advance: (1) The employee is sick or injured non-work-related, and cannot engage in the original job or other jobs arranged by the employer after the medical treatment expires; (two) the laborer is not competent for the job, and he is still not competent for the job after training or adjusting his post; (3) The objective circumstances on which the labor contract was concluded have changed greatly, so that the original labor contract can not be performed and the parties can not reach an agreement on changing the labor contract through consultation. "

Article 27 of the Labor Law stipulates: "If the employing unit is on the verge of bankruptcy during the period of legal rectification or has serious difficulties in production and operation, it shall explain the situation to the trade union or all employees 30 days in advance, listen to the opinions of the trade union or employees, and report to the labor administrative department, and then it may reduce the number of employees. If the employing unit reduces its staff in accordance with the provisions of this article and recruits staff within six months, it shall give priority to the retrenched staff. "

Article 3 1 of the Labor Law stipulates: "A laborer shall notify the employing unit in writing 30 days in advance when canceling the labor contract."

Article 32 of the Labor Law stipulates: "In any of the following circumstances, the employee may notify the employer to terminate the labor contract at any time: (1) During the probation period; (2) The employing unit forces labor by means of violence, threat or illegal restriction of personal freedom; (3) The employing unit fails to pay labor remuneration or provide working conditions as agreed in the labor contract. "

These are the legal rights to terminate the labor contract. As long as the provisions of Article 25, Article 26, Article 27, Article 3 1 and Article 32 of the Labor Law are met, or the force majeure situation stipulated by law, one party to the labor contract may exercise the right to terminate the open-ended labor contract according to law.

However, the laborer has one of the following circumstances:

(a) suffering from occupational diseases or work-related injuries and being confirmed to have lost or partially lost the ability to work,

(2) Being sick or injured within the prescribed medical treatment period,

(3) During pregnancy, childbirth and lactation,

(4) Other circumstances stipulated by laws and administrative regulations,

The employer shall not terminate the labor contract according to the provisions of Articles 26 and 27 of the Labor Law.

3. The agreement is terminated. Termination of agreement refers to the termination of the contract as agreed in the contract. When the agreed reasons arise, the parties have the right to terminate the contract. An open-ended labor contract may be terminated by the parties in advance. When the conditions are met, one or both parties may terminate the contract.

However, it must be noted that a non-fixed-term labor contract shall not stipulate the statutory termination conditions as termination conditions, so as to avoid the obligation of the employer to pay economic compensation to the workers when the labor contract is terminated. This restriction was clearly stipulated in the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of People's Republic of China (PRC) 1995.