On the legitimate rights and interests of workers

Abstract: Due to the lack of system and the need to strengthen the supervision of labor law enforcement, coupled with the misunderstanding of people's legal concept and the drive of interest relationship, there are many illegal and unreasonable phenomena that infringe on the legitimate rights and interests of workers, and the protection of workers' legitimate rights and interests has not been well implemented. How to protect the legitimate rights and interests of workers according to law is a problem worthy of consideration and study. Starting with an overview of workers' legitimate rights and interests, this paper expounds workers' right to choose a job, pay, rest and vacation, safety and health, skills training, social security and welfare, democratic management and dispute relief. On the basis of analyzing the basic situation of the protection of workers' legitimate rights and interests in China, this paper points out the shortcomings of the protection of workers' legitimate rights and interests in the new stage of China, and probes into and puts forward some suggestions for solving the problems of the protection of workers' legitimate rights and interests. Key words: protection and relief mechanism of workers' rights and interests Labor rights At present, labor relations have become the most basic and important social and economic relations, and the harmonious development of labor relations has become an important content and guarantee for the harmonious development of society. However, factors that undermine the development of labor relations and affect the harmony and stability of labor relations have always existed. As a party to labor relations, the legitimate rights and interests of workers have been repeatedly violated. Due to the status of natural vulnerable groups, workers are often powerless when their legitimate rights and interests are often violated, or they have to submit to humiliation in order to keep their jobs. What worries us is not only the shortage of workers' own rights protection conditions, but also the dislocation of relevant institutions' functions and the lack of relief guarantee mechanism. The author tries to reveal the current situation and shortcomings of the protection of workers' legitimate rights and interests, explore ways and methods to protect workers' legitimate rights and interests, and work hard to safeguard workers' rights and interests, coordinate labor relations and promote the harmonious development of society. I. Overview of the legitimate rights and interests of laborers [1] A laborer refers to a natural person who has reached the legal age, has the ability to work, takes a certain social labor income as the main source of livelihood, and works under the management of the employer and obtains labor remuneration according to the law or the contract. They are called workers, workers, apprentices, assistants, assistants and so on. But not all natural persons are legal workers. To become a legal worker, you must have certain conditions and acquire the right to work and the ability to work. At present, China's constitution, labor law, labor contract law, employment promotion law, labor dispute mediation and arbitration law, trade union law, occupational disease prevention law, safety production law, economic compensation measures for violating and dissolving labor contracts, compensation measures for violating related labor contracts (labor law), industrial injury insurance measures and other laws. It stipulates the right to labor safety and health, the right to receive vocational skills training, the right to enjoy social insurance and welfare, the right to join trade unions according to law, the right to democratic management, and the right to submit labor disputes, which provides legal protection for the rights and interests of workers. (1) Workers' equality and right to choose a job, that is, workers' right to employment, which 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. Include that workers' right to equal employment, the right to choose an occupation and the right not to lose their job opportunity because of illegal marriage.

1. Workers' right to equal employment. [2] The right to work, also known as the right to employment, refers to the right of citizens who have the ability to work to enjoy employment. Labor is the first basic condition of people's life, the source of all material wealth and spiritual wealth, and the right of citizens who have the ability to work to participate in social labor and ensure that they are paid according to their work. Citizens' right to work and employment is the basis for citizens to enjoy all rights. If citizens' labor cannot be realized, all other rights will lose their foundation and significance. Article 3 of the Employment Promotion Law of People's Republic of China (PRC) stipulates that workers shall enjoy equal employment and the right to choose their own jobs according to law. Workers are not discriminated against because of nationality, race, sex and religious belief. Article 12 of the Labor Law of People's Republic of China (PRC) stipulates that workers shall not be discriminated against because of their nationality, race, sex and religious belief. 2. Workers' right to choose occupation. Workers' right to choose a job means that workers choose a career that suits their talents and hobbies according to their own wishes. Laborers have the right to choose their jobs freely, which is conducive to giving full play to their personal strengths and promoting the development of social productive forces. Workers' right to choose their own jobs is the legal embodiment of workers' personality independence and freedom of will. The right of workers to choose their own jobs 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 occupations. Article 31 of the Labor Law: A laborer shall notify the employing unit in writing 30 days in advance when dissolving the labor contract. The right of workers to resign is stipulated. Workers' right 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 are not forced by external forces; On the other hand, workers have the right to resign after employment. Of course, it does not rule out the legal responsibility of workers who violate labor contracts according to law. (II) The right of laborers to receive labor remuneration The right of labor remuneration is the basic right of laborers under the conditions of market economy and one of the important labor rights entrusted to laborers by law. The realization of this right is related to the survival and development of workers. An important form for workers to realize their right to remuneration is wages, which is the right for workers to get their due wages according to the quantity and quality of their own labor. Laborers' right to labor remuneration has specific contents. As workers, they have the right to require employers to pay all kinds of wages in cash according to labor laws and regulations, collective contracts and labor contracts (in China, wages include hourly wages, piece-rate wages, bonuses, allowances and subsidies, overtime wages, guaranteed wages under special circumstances, etc.). ), and have the right to minimum wage protection. Female employees have the right to demand equal pay for equal work for men and women. As employers and countries, they have the obligation to guarantee the realization of workers' right to remuneration. (III) Laborers' Right to Rest and Vacation According to China's Constitution, laborers have the right to rest. The state develops facilities for workers to rest and recuperate, and stipulates the working hours and vacation system for workers. The rest time stipulated in China's labor law includes work breaks, rest time between two working days, public holidays, legal holidays, annual leave, family leave, funeral leave, personal leave, maternity leave and sick leave. Shortening working hours is a means to improve the labor birth rate and also meets the needs of improving the living standards of workers. The legal provision of rest and vacation is not only an important guarantee to realize the workers' right to rest, but also an aspect of workers' labor protection. The Labor Law stipulates that the employer shall not extend the working hours at will. (4) Labor safety and health rights of workers [3] Labor safety and health protection is to protect the life safety and physical health of workers, and it is the most direct protection of the vital interests of the subjects who enjoy labor rights. Because labor is always carried out in different environments and conditions, there are various unsafe and unsanitary factors in production. If protective measures are not taken, industrial accidents and occupational diseases will be caused, endangering the safety and health of workers. At present, China has formulated a large number of laws and regulations on labor safety protection, and formed a legal system of safety technology, an occupational safety and health management system and a labor protection supervision system. Chapter VI of the Labor Law stipulates the labor safety and health system, which stipulates that workers have the right to obtain labor safety and health protection. Among them, 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 workers engaged in occupational hazards shall undergo regular health examinations. 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. (five) the right of workers to receive vocational skills training. Vocational skills training refers to the education and training of technical business knowledge and practical skills aimed at cultivating their basic vocational skills or improving their vocational skills. According to the Constitution of China, citizens have the right and obligation to receive education. Education includes general education and vocational education. Citizens have the right to work, and the realization of the right to work cannot be separated from the workers' own professional skills. Nowadays, the acquisition of vocational skills depends more and more on vocational training. Without the right to vocational training, citizens' employment rights cannot be fully realized. (VI) Laborers' right to enjoy social insurance and welfare [4] Social insurance is a social security system in which the state and employers provide material assistance to laborers with labor relations to protect their basic needs when they temporarily or permanently lose their ability to work and are temporarily unemployed. Sickness and death are inevitable for every worker, and social insurance is the objective need of labor reproduction. Since the establishment of social insurance system in China, with the development of production and construction, it has been continuously supplemented and improved, which has played an important role in protecting workers' health, relieving their backward interests and mobilizing their enthusiasm for production. (VII) Laborers' right to join trade unions and democratic management of workers according to law Article 3 of China's Trade Union Law stipulates that manual workers and mental workers whose main source of livelihood is wages in Chinese enterprises, institutions and organs have the right to join and organize trade unions according to law, regardless of nationality, race, sex, occupation, religious belief and education level. Therefore, as long as they are workers, that is, regardless of nationality, race or education level. According to Article 8 of the Labor Law, workers participate in democratic management or hold equal consultations with employers on the protection of workers through workers' congresses, workers' congresses or other forms according to law. (8) laborers' right to submit labor disputes [5] Labor disputes refer to disputes arising from the implementation of labor laws or the performance of collective contracts and labor contracts. As the main body of labor relations, the interests of the parties to labor relations are different, and the two sides will inevitably have differences. If there is a labor dispute between the employer and the employee, the employee may apply for mediation or arbitration to the labor arbitration committee according to law. Those who refuse to accept the arbitration award may also bring a lawsuit. The principle of legality, fairness and timely handling should be implemented in solving labor disputes. If there is any dispute, they have the right to submit it for settlement, which is also the guarantee of other legal rights of workers. Second, the status quo and shortcomings of the protection of workers' legitimate rights and interests At present, the status quo of the protection of workers' legitimate rights and interests in China is worrying, and the protection of workers' legitimate rights and interests is still seriously inadequate, and the protection of workers' legitimate rights and interests is facing great challenges. (I) Status quo of protection of workers' legitimate rights and interests At present, the status quo of protection of workers' legitimate rights and interests in China is still far from ideal. First of all, it is manifested in the equality of workers and the right to choose a job. Under the new situation, the discrimination of job advertisements in gender, age and registered permanent residence is more prominent. For example, our common job advertisement "Our company plans to recruit 3 managers for the needs of production and operation. Applicants must meet the following conditions: 1, male; 2. Bachelor degree or above; 3. Local hukou; 4. More than two years of management experience; 5, under 30 years old, etc. " Literally, it obviously violates the stipulation in the labor law that "women shall not be refused employment on the grounds of gender"; At present, 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 kind of job advertisement that violates the labor law look "legal". At present, this illegal recruitment advertisement has a trend of continuous development. At present, the infringement of workers' right to choose a job is mainly manifested in the infringement of workers' right to resign. First, employers attach unreasonable conditions when signing labor contracts with workers, such as excessive liquidated damages, 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 their files and certificates and ask them for "storage fees", especially for newly graduated workers. Secondly, in terms of workers' right to remuneration and workers' right to rest and vacation. , mainly manifested in the employer's arrears of wages, serious overtime work, failure to pay overtime wages in accordance with the provisions of the labor law, and wages below the minimum wage standard stipulated by law. However, some employers generally use the "piece-by-piece system" to calculate wages in order to avoid the minimum wage guarantee system. We can often see that some factories implement piecework system, so that workers can get more jobs. Wages are not capped or guaranteed, and the working standards set by employers are too high. Ordinary workers leave Man Qin with wages lower than the minimum wage, forcing them to work overtime, and overtime pay exceeds the minimum wage, which has violated workers' right to guarantee the minimum wage. According to relevant media reports, nearly 1,000 employees in a factory on the East Ring Road of Panyu Bridge in Guangzhou are dissatisfied with working nearly 12 hours a day, working almost every day and working overtime 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 embarrassment of legal reality: on the one hand, the strong openly violate 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 fight it. When individual rights and interests are infringed and cannot be solved through legal channels, group rights protection must be regarded as the best choice. [6] Another example is the annual mine disaster and pulmonary selenium disease in China. 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 that the supervision of China's safety and health system is still very lacking. Strengthen mine safety and health inspection, increase the punishment for the person in charge of enterprises that violate safety and health, persist in curbing the trend of high incidence of mine accidents and occupational diseases, effectively protect the safety of employees' lives and property, and protect their labor safety and health rights and interests with various systems. (II) Inadequate protection of workers' legitimate rights and interests The deficiencies in the protection of workers' legitimate rights and interests in China are mainly manifested in the following aspects: 1. The current laws and regulations are not enough to punish illegal acts. In the establishment of labor relations, the punishment for the employer's failure to sign a labor contract with the employee is only to be ordered to correct, and there is no further punishment for the uncorrected behavior. In terms of wage payment, only 50% is set to double indemnity for behaviors such as arrears and deduction of wages; There is no coercive means for business owners to default or deduct wages. In terms of labor protection, there is a lack of tough punishment measures for extending working hours without authorization and not providing labor protection measures according to law, and so on.

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