What's the difference between employment contract system and labor contract system?

What are employment contracts and labor contracts? What's the difference between them? Here is to introduce the main differences between the employment contract system and the labor contract for you. I hope it is useful to everyone!

The difference between employment contract system and labor contract system

First, the applicable subjects are different.

The subjects of employment contracts and labor contracts are generally units and individuals. But; Different contracts define the scope of units and individuals differently. The unit in the employment contract (referred to as the employing unit in the employment contract) only refers to the public institution, excluding the public institution that conducts personnel management with reference to the national civil service system and is transformed into an enterprise. The individual in the employment contract (referring to the employee in the employment contract) only refers to the laborer who establishes the employment relationship with the institution through the employment contract (except for the institution that conducts personnel management according to the national civil service system and is transformed into an enterprise). In addition, the withdrawal system has been introduced into the employment contract, which has made special requirements on the scope and positions of employees, that is, employees with husband-wife relationship, lineal blood relationship, collateral blood relationship within three generations or close in-laws relationship may not be employed in the positions of secretaries, personnel, finance, auditing, discipline inspection and supervision of the responsible personnel of the unit, nor may they be employed in positions with direct superiors. In view of the fact that the institution implements the employment contract system for the first time, the employment contract system aims at maintaining the stability of the personnel management of the employer as much as possible, and at the same time, it also implements the priority employment system for the candidates of the unit, that is, the employer should give priority to hiring from the existing personnel of the unit, and those who are recruited for the society will give priority to hiring the candidates of the unit under the same conditions.

Units in labor contracts (hereinafter referred to as employing units in labor contracts) refer to enterprises, individual economic organizations (including individual industrial and commercial households and private non-enterprise units), institutions that implement enterprise management, state organs, institutions and social organizations that establish labor relations with workers through labor contracts. Individuals in labor contracts (referred to as laborers in labor contracts) only refer to those who establish labor relations with employers through labor contracts. China's labor laws and regulations do not stipulate the scope of workers' avoidance and priority, and employers in labor contracts enjoy more autonomy than employers in employment contracts. In addition, whether it is the employees in the employment contract or the workers in the labor contract, it does not include national civil servants, staff in institutions and social organizations that refer to the implementation of the civil service system, and active military personnel.

Second, the content and form of the contract are different.

The employment contract takes the contract term, work content or post and responsibilities, labor discipline, labor protection and working conditions, labor remuneration, conditions for contract modification and dissolution, and liability for breach of contract as necessary clauses. At the same time, both parties to the contract are also allowed to negotiate and agree on terms such as probation period, training, intellectual property protection and notice of dismissal period in advance. The statutory essential clauses of a labor contract include not only the above-mentioned essential clauses of the labor contract, but also social insurance clauses. In addition, in the form of the contract, the employment contract requires the use of the format text uniformly formulated by the Beijing Municipal Personnel Bureau, and the labor contract has no uniform requirements for the text format.

Third, the contract term is different.

The term of employment contract is divided into short-term, medium-term and long-term, with the completion of certain work as the term. Short-term less than 3 years. Long-term and long-term contracts with a certain work completion period shall not exceed the number of years when the candidates reach the retirement age stipulated by the state. The term of a labor contract can be divided into fixed term, non-fixed term and certain working term, and the shortest term of the contract is indefinite. Therefore, as far as the term of the contract is concerned, the labor contract is broader than the employment contract.

In addition, although both parties are allowed to agree on the probation period through consultation, the probation period of the labor contract must correspond to the contract term. That is, if the term of the labor contract is less than 6 months, the probation period shall not exceed 15 days; For those who have worked for more than 6 months but less than 1 year, the probation period shall not exceed 30 days; If the term of the labor contract is between 1 year and 2 years, the probation period shall not exceed 60 days; If the term of the labor contract is more than 2 years, the probation period shall not exceed 6 months. The probation period of employment contract is only applicable to the employment of newly transferred personnel. When signing the employment contract, the first batch of demobilized veterans received by public institutions shall not stipulate the probation period. At the same time, the probation period is generally not more than 3 months, and the longest is not more than 6 months. The probation period can be extended to 12 months if the employed person is a college graduate.

Fourth, the conditions for concluding a retirement contract are different.

The term-to-retirement contract refers to the employment contract or labor contract signed by the unit and the individual to establish the employment relationship or labor relationship, and the term is until the individual reaches the national legal retirement age. In the employment contract system, it is called employment-to-retirement contract; In the labor contract system, it is called an open-ended contract. When an employer signs an employment contract with a laborer, it must meet the following conditions from employment to retirement: (1) The laborer has worked in this unit for 25 years or continuously for 10 years; (2) The employee's age is less than 10 years from the retirement age stipulated by the state; (3) The employee himself applies for concluding an employment-to-retirement contract. To sign an open-ended labor contract with an employee, the employer must meet the following conditions: (1) The employee has worked continuously in the same employer 10 years or more; (2) Both parties agree to extend the labor contract; (3) The laborer himself applies to the employer for concluding an open-ended labor contract.

Five, the jurisdiction of the contract is different

Contract jurisdiction includes two aspects: first, the determination of invalid contracts; The second is the acceptance of contract disputes. The invalidity of the employment contract shall be confirmed by the personnel dispute arbitration commission or the people's court. In case of any dispute arising from the conclusion and performance of the employment contract, the parties may apply to the administrative department at a higher level for mediation or to the personnel dispute arbitration committee for arbitration, and the arbitration result shall be binding on both parties to the dispute, namely; Final ruling; . The invalidity of a labor contract shall be confirmed by the labor dispute arbitration commission or the people's court. In case of any dispute arising from the conclusion and performance of a labor contract, the parties concerned shall first appeal to the competent labor dispute arbitration committee, and if they are not satisfied with the award of the labor dispute arbitration committee, they may bring a lawsuit to the competent people's court within the prescribed time limit, that is; First, the second instance verdict; . Whether it is a personnel dispute; Final ruling; Or labor disputes; First, the second instance verdict; In my opinion, both of them have their own advantages in reflecting efficiency and fairness, so I won't comment here. However, it is worth mentioning that the employment contract system introduces the way of litigation to solve invalid contracts, which is more than the previous personnel disputes; Internal solutions; Mode, more embodies the democracy and fairness.

Six, the compulsory contract is different.

Employment contracts and labor contracts must follow the principles of equality, voluntariness and consensus through consultation. However, the conclusion of employment contracts is still mandatory. It is mainly manifested in the following aspects: when institutions begin to try out the employment contract system, the following categories of personnel shall not refuse to sign the employment contract without the consent of the unit, that is, (1) the major (key) work (project) of the principal responsible person, business backbone or national, municipal, district and county key scientific research units has not been completed; (two) engaged in work involving state secrets or engaged in work involving state secrets within the prescribed period of confidentiality; (3) Working in an important position of the unit or engaging in a special industry or type of work, which has caused great damage to the interests of the unit after leaving the company. There is no such mandatory provision in the labor contract.

Seven, the conditions for the termination of the contract are different.

Under the labor contract system, the employer may unilaterally terminate the labor contract at any time:

(1) does not meet the requirements of this post during the probation period and does not agree to adjust other jobs;

(2) Being absent from work for more than 10 working days in a row or more than 20 working days in 1 year;

(3) Going abroad without the consent of the employing unit or going abroad beyond the time limit;

(4) Violation of work regulations or operating procedures, resulting in accidents or dereliction of duty, resulting in serious consequences;

(five) seriously disrupting the work order, so that the work of the employer and other units can not be carried out normally;

(6) Those who have been sentenced to fixed-term imprisonment or above and put in prison for execution, or those who have been reeducated through labor.

The employer may unilaterally terminate the employment contract, but it shall perform the obligation of written notification 30 days in advance:

(1) The employee is sick or injured at work, and cannot engage in the original job or other jobs arranged by the employing unit after the medical treatment expires;

(2) The employee's annual assessment or employment period assessment is unqualified, and he does not agree with the employer to adjust his post, or fails to pass the assessment after taking up a new post;

(3) Significant changes have taken place in the objective circumstances on which the labor contract was concluded, which makes it impossible to perform the labor contract, and the parties concerned cannot reach an agreement on changing the labor contract through consultation, or the workers do not obey other arrangements.

Under the labor contract system, the employer may unilaterally terminate the labor contract at any time:

(1) 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 key departments of the employer;

(4) Being investigated for criminal responsibility according to law.

The employer may terminate the labor contract, but it shall fulfill the obligation of written notice 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 is still not competent for the job after training or adjustment;

(3) The objective conditions on which the labor contract was concluded have changed greatly, which makes the original labor contract impossible to perform and the parties cannot reach an agreement on changing the labor contract through consultation. As can be seen from the above, although the conditions for the termination of the contract are different under two different employment management systems, the author believes that the termination of the contract under the employment contract system highlights the principle of human resource management efficiency and the employer's autonomy. In addition, there are differences in the right of employees or laborers to unilaterally terminate the contract, and the relevant provisions of the employment contract system are more detailed, taking into account employees' further education and employment, civil service employment, military service and so on.

8. Different dispute settlement mechanisms

Under the employment contract system, if there is a dispute between the employee and the employing unit due to employment, dismissal, assessment within the contract period, placement without employment, contract period, etc., either party may apply to the higher authorities for mediation or apply to the personnel dispute arbitration committee for arbitration, and the arbitration result is binding on both parties.

Under the labor contract system, disputes between workers and employers arising from the conclusion and performance of labor contracts are settled by one arbitration and two trials, that is, labor disputes are first decided by the labor dispute arbitration commission, and any party who refuses to accept the ruling can bring a lawsuit to the court. What I need to explain here is that under the employment contract system, only judicial remedies are provided for the determination of the effectiveness of the employment contract, and any party can file a lawsuit with the people's court for confirmation. Other personnel disputes can only be resolved through mediation by the higher authorities or arbitration by the personnel dispute arbitration committee.

Legal origin of employment contract

The concepts of employment contract and employment contract have appeared in the normative legal documents regulating the labor relationship between professional and technical personnel and managers in China. In the early Teachers Law and Education Law, there were relevant provisions on employment contracts. 1993 article 17 of the teachers' law stipulates that the appointment of teachers shall follow the principle of equality between the two parties, and the employment contract shall be signed by the school and the teacher.

The employment contract of public institutions is the same as the model, which clarifies the rights, obligations and responsibilities of both parties. These two concepts are also scattered in many departmental regulations promulgated and implemented by the Ministry of Personnel of the State Council. According to the relevant laws and regulations of our country, employment and engagement are the relationship between mother concept and child concept, that is, the relationship between inclusion and inclusion. The object of the employment contract is only professional and technical posts, but the employment used in the contract includes professional and technical posts and management posts. Some scholars in our country also list the employment contract as a kind of labor contract, and define it as: an employment contract refers to a contract signed by an employer and a worker according to law to recruit or hire technical professionals or managers with specific business expertise among on-the-job and off-job workers, conclude labor relations and stipulate labor rights and obligations during employment.

According to the basic principles and scope of implementation of the employment system in the first part of Opinions on Implementing the Personnel Employment System in Institutions, the connotation of employment contract is defined as: employment contract refers to an agreement signed by institutions and employees on the basis of equality, voluntariness and consensus to clarify the rights and obligations related to the work of the employing unit and employees in accordance with relevant national laws and policies and the requirements of this opinion.

Employment contract is a form of contract, which has both the characteristics of general contract and its own unique characteristics. These characteristics make this contract different from other contracts such as labor contract and civil servant employment contract, and make the employment contract an independent contract type.