What should factory employees do when they encounter porcelain?

Sue for rights protection. "Labor Contract Law" and "Moral Hazard" [Even if you know that you are suspected of "touching porcelain", as long as the laborer's evidence is complete and legal and the enterprise can't produce strong evidence to overturn it, you will basically support the former's "application", and the success rate of "touching porcelain" will sometimes reach an astonishing 100%. It has been ten years since the National People's Congress first promulgated the draft labor contract law. In the past ten years, achievements and disputes have coexisted. In 2008, the Labor Contract Law and the Labor Dispute Mediation and Arbitration Law were promulgated and implemented one after another, which triggered a series of debates. Critics believe that the original intention of the law is to better protect the interests of workers, but some design imbalances are causing a "moral crisis." In their view, it "unreasonably increases the labor cost of enterprises", so it is opposed to this day. Lou Jiwei, Minister of Finance of China, recently made a series of "statements", which were even regarded by some experts as a signal to "amend the law". He bluntly said, "The current labor contract law is very inadequate for the protection of enterprises, which ultimately harms the interests of workers. Since the spring of this year, the debate about the Labor Contract Law has become increasingly fierce. The "Unique Skill" of Legal Publicity Whenever a factory publicizes the Labor Contract Law to employees according to the requirements of superiors, Chen Hua (pseudonym) will post all the chapters of the law on the publicity column in the factory, but he rarely "actively explains" the terms to the workers. In Chen Hua's view, this has two advantages: it not only popularizes the law in form, but also protects the factory in secret. In Dongguan City, Guangdong Province, Chen Hua is the head of the human resources department of a local garment manufacturing enterprise. This department is responsible for the entry and exit of hundreds of personnel relations employees, most of whom are migrant workers. He explained that this was done because the factory was afraid of employees' "excessive rights protection", so it was necessary to avoid employees' "knowing too much". This human resources manager has many years of working experience and has worked in many enterprises. The garment factory where he currently works has moved its processing business to places with lower labor costs such as the Philippines and Cambodia. On the evening of May 1 1, the workshop was brightly lit because of the factory order. Chen Hua said with a wry smile, in fact, this is "illegal". Although the number of workers recruited is less than 1/4 at the peak, Chen Hua's work pressure is increasing. He should guard against two situations: employees "take the initiative" to let enterprises voluntarily or illegally terminate labor contracts, thus obtaining economic compensation; There is also "employees deliberately fail to sign labor contracts and ask for double wages for one month". In Cantonese, the first situation is called "speculation". There are many similar labor dispute cases in the local area. Anyone who goes to the hands of Zhang Da (a pseudonym), an arbitrator of a labor arbitration court in Dongguan, will support the employee's petition in most cases because it is "based on the law". He also often encountered in the trial, the enterprise accused employees of being "lazy" and violating factory regulations, so they refused to pay compensation. Enterprises have come up with "factory regulations", but in the end they still have to pay compensation. Zhang Da explained that local enterprises rarely come up with "factory rules" that conform to the legal situation, because "rules and regulations" not only need to be demonstrated through democratic procedures in the factory, but also "open". The so-called "openness" is not "taking it out casually" but "notarization according to law". The Labor Contract Law sets several' dismissal thresholds'. " Many factories have not even held a workers' congress, let alone come up with compliant rules and regulations. As a grassroots labor arbitrator, according to Zhang Da's long-term trial experience, there are tens of thousands of enterprises registered in Dongguan, and most of them have no ability or consciousness to prove that the dismissed object is "at fault". Chen Hua is worried that "economic compensation" is tempting a very small number of workers to "take risks". Many local business managers told reporters that local people use "speculation" to identify employees' behavior of "not making big mistakes and small mistakes" during their tenure, and their work attitude is "passive slack". The purpose of this behavior is to trigger enterprises to take the initiative or even illegally fire themselves. In the eyes of enterprises, "speculation" and "speculation" are different, reflecting a certain change in the status of both employers and employees, that is, from "strong capital and weak labor" to "strong labor and weak capital". However, a more threatening situation than "speculation" began to appear: some employees frequently changed their workplaces in a short period of time, deliberately did not sign contracts within the time stipulated by law, and waited for an opportunity to ask the employer for twice the salary. The industry calls it "professional rights protection", but some people call it "labor touching porcelain". The success rate of "touching porcelain": almost 100% If the worker sitting on the plaintiff's bench is a "familiar face", Zhu should start to weigh whether this is a case suspected of "professional rights protection". As the president of dangtu county Labor and Personnel Dispute Arbitration Institute, Zhu has been engaged in arbitration for more than 20 years, hearing more than 0/00 related cases every year. "I have seen it five times at most, that is, one person sued five companies in a row." Zhu carefully analyzed the working hours of "familiar faces" in the defendant companies, which are basically about half a year, and must not exceed one year. The shortest time, only worked for 3 months. "Familiar faces" often complain that "the employer has not signed a labor contract after establishing a labor contract relationship with it for one month". Article 82 of the Labor Contract Law stipulates that if the employer fails to conclude a written labor contract with the employee for more than 1 month and less than 1 year from the date of employment, it shall pay the employee twice the monthly salary. In violation of the provisions of this Law, if the employing unit fails to conclude an open-ended labor contract with the laborer, it shall pay the laborer twice the salary every month from the date of concluding the open-ended labor contract. "Dongguan Daily" once reported that a man surnamed Mi "excessively defended his rights" and sued 16 enterprises for economic compensation, involving more than 30 cases. From 2007 to 20 1 1, Tang sued 28 companies that had been employed, involving 68 cases1. Zhang Da remembers a security guard surnamed Zhang who went to court several times after working for 2-3 months. Zhu said that even if he knew that he was suspected of "touching porcelain", as long as the evidence of the laborer was complete and legal and the enterprise could not produce strong evidence to overturn it, he would basically support the former to "appeal", and the winning rate of "touching porcelain" would sometimes reach an astonishing 100%. "We sometimes give some verbal warnings to stop it," Zhang Da said, "but they are obviously very proficient in the law. Management "loopholes" may be "loopholes" in enterprise management, as opposed to this "mastery". From this perspective, some scholars believe that "the law itself is not wrong. "Chang Kai, a well-known labor law scholar and director of the Institute of Labor Relations of Renmin University of China, once thought that the law was strict in the' dismissal restrictions' of employers and played a role in' regulating the employment of enterprises' to a certain extent. What he appreciates is that the law adopts the practice of "double wages" because it is "simple and easy to implement, which effectively promotes the conclusion of labor contracts". He said, "The employer proves that the workers are incompetent, and their attendance, work discipline and performance are not good. Can't prove it. This is precisely the problem of enterprise management ability. "Zhejiang Xinao Textile Co., Ltd., located in Jiaxing, Zhejiang Province, where the wool spinning industry gathers, is a leading enterprise in international worsted yarn. The manager of the company's human resources department told the reporter that the company has invested heavily in updating automatic production equipment, but there are still more than 2,000 employees in production lines and various management positions. "Preventing labor lawsuits requires a lot of investment," said the manager. "At present, the resulting cost ratio has not been calculated, but it has always been the inherent requirement of listed companies to reduce employment risks and actively resolve labor disputes. This kind of refined accounting of human resources is generally more cost-effective. In fact, it is difficult for most local manufacturing industries to reach this level, which means that it will push up the cost of enterprises. " For example, it is unrealistic to let small and micro enterprises in the growth period reach the level of listed companies in personnel management. Dong said that because the current law puts almost the same requirements on all employers. As a professor at the Law School of East China Normal University, Dong participated in the demonstration and drafting of People's Republic of China (PRC) Labor Law, and served as the vice president of China Social Law Research Association. He spoke quickly and energetically, and got to the point. He He and Chang Kai are two main representative scholars in the field of labor law in China. Because the two men have differences on whether to amend the law, whether to lead to the imbalance of labor relations, whether to lead to the rapid rise of enterprise costs, flexible employment and other issues, they are not stingy with firepower when criticizing each other's views. On the afternoon of May 6th this year, Dong was invited to give a lecture on "Concept Adjustment and System Renewal in the Revision of Labor Contract Law", and the lecturer was Chang Kai. Both of them said that "opinions belong to opinions, and personal friends belong to private." Both of them think that this law is legislated from the standpoint of protecting workers and belongs to * * * knowledge, but Dong thinks that it is necessary to "distinguish concepts" and the protection object of this law should be "the legitimate rights and interests of workers" rather than "the rights and interests of workers". He has repeatedly publicly stated that the law will lead to a rapid increase in enterprise costs, one of which is the "friction cost" between employers and employees. Friction cost Dong said that "friction cost" is an extra cost paid by the employer in addition to the operating cost, which is specially used to deal with the employment risks of enterprises, such as "speculating on letters" and "touching porcelain". He is most opposed to the "double-sex" system. "Workers, regardless of whether they are damaged or not, can get' double indemnity' in eight cases". Once the punitive compensation system is not based on the subjective fault of the employer and the damage to the workers, it will become an important reason for the workers to obtain "double interests" and other "moral hazard". On March 18 this year, a staff member of the grass-roots labor arbitration department called this situation "the awakening of evil human nature" when doing academic exchanges in Shanghai. In his view, the awakener is a high-interest temptation of "double wages" and a temporary system loophole, which has triggered the "moral hazard" of workers. This has also become one of Dong's ideas of "amending the law", that is, strictly limiting the "double indemnity", which can only be applied in a limited way if the employer intentionally violates the law and causes losses to the workers. In Dong's view, the law only allows workers to file a civil lawsuit in the program design of "one ruling is final", and the employer does not have the corresponding right to sue. However, labor arbitration is "free" and only charges 10 yuan in the litigation stage, all of which "actually encourages workers to sue", thus bringing huge social costs. He analyzed that in order to reduce the "friction cost" and deal with labor disputes, employers need to hire lawyers, and in order to transfer and avoid the "friction cost", they have adopted "labor dispatch" and "personnel outsourcing". The latter can explain why "labor dispatch" has flourished since 2008. In fact, Dong accused the law of "insufficient protection for enterprises and excessive tilt towards workers" and was not welcomed by workers. He is "well aware" and "if the enterprise is gone, the interests of workers will inevitably be damaged". The opposite view is that "without workers, enterprises will still stop working." Chang Kai said that the impact of the law on the cost of enterprises is an explicit cost, that is, the compensation for terminating the labor contract and the double salary when the labor contract is not signed, as long as the employer does not violate the law; The other is hidden cost, which is mainly the investment increased by enterprises to improve management level. However, enterprises need to improve their management capabilities and improve their own norms. He believes that the most important impact of this law on the cost of enterprises is "compensation for termination of labor contracts". Therefore, the Minister of the United Front Work Department of Dongguan once called for the cancellation of "compensation". However, according to the latest report on migrant workers released by the State Council, of the 277 million migrant workers, only 36.2% signed labor contracts, down by 1.8 percentage points from the previous year. Since migrant workers account for more than 70% of wage workers, the labor contract signing rate of the whole wage workers is only 50%, so "compensation for contract termination" is not involved. Chang Kai emphasized that so far, no scholar or official who criticized the "rising cost of enterprises" caused by this law has produced data to prove how the labor costs of enterprises are caused. "If there is an assessment in this area and data are generated, the law can be completely abolished. "He insisted. Potential risks? An industry insider, who asked not to be named, said that before 20 14, relevant departments in Shanghai required grass-roots units in all districts and counties to provide records of laborers and individual industrial and commercial households fighting labor dispute lawsuits, but there were no records. There was only one labor arbitration case in my impression, and the mediation was successful. "The person familiar with the matter said that the only reason why such cases did not break out on a large scale was that no workers sued. However, grass-roots labor arbitration institutions in many places in China are most worried that labor disputes may expand from individual cases to groups. In 2008, there were 33 labor-management group incidents caused by signing labor contracts in a province and city, with more than 1 10,000 participants. In 20 13, seven similar cases of "touching porcelain" occurred in a district of a municipality directly under the central government. In September last year, four judges of Shiyan Intermediate People's Court in Hubei Province were assassinated and injured, which was exposed by the media to be related to "double salary". On February 19 this year, during the 20 16 annual meeting of 50 people in China Economic Forum, Minister of Finance Lou Jiwei said in his speech that there are problems in the current labor contract law, which is not conducive to improving the total factor productivity and ultimately damaging China's economy. He bluntly said, "The current labor contract law is very inadequate for the protection of enterprises, which ultimately harms the interests of workers. Including the structural reform seminar of G20 finance ministers' meeting that month, Lou Jiwei has publicly expressed similar views four times and talked about the problem of "wage rigidity" rising too fast. But Chang Kai once said that the law should not "take the blame" for the current economic downturn. However, in their recent meeting, Dong suggested that once the law is amended, it will be a matter with extremely high technical difficulty and great social impact, and there is no need for any country to "find fault" by amending the law. Because it happened in the background of "the new economic normal and supply-side reform", how to avoid the accusation of "moral crisis" has attracted people's attention.