Five situations and judgment rules of workplace change

The workplace is an essential clause of the labor contract (17). The change of the workplace belongs to the change of the content of the labor contract, which shall be agreed by the employer and the employee through consultation (Article 35). If the employer unilaterally changes the place of work, it can be considered as "the employer fails to provide working conditions in accordance with the labor contract", and the employee has the right to terminate the labor contract (Article 38) and ask the employer to pay economic compensation. *

* See the Labor Contract Law for the above terms.

In practice, there are many disputes that workers demand to terminate the labor contract and get economic compensation because of the employer's change of work place. The controversial point of this kind of dispute is that the employer often thinks that he has changed his work place within the scope agreed in the labor contract, while the worker thinks that the employer has changed his work place without authorization. The reason for the dispute is that the work place agreed in the labor contract is not unique and unclear.

The judgments of local courts in such cases are also different, supporting employers and supporting workers. By combing the relevant cases in various places, the author sums up several controversial situations of workplace change disputes, and tries to sum up and analyze the refereeing ideas of such disputes.

Case 1: The labor contract stipulates multiple working places, and the employer changes between the agreed working places.

In practice, the workplace agreed in the labor contract may not be unique, but multiple. In this case, is it necessary for the employer to negotiate with the workers to make changes between the agreed workplaces?

For negative judgments, such as "labor dispute case between Wang Lian and Beijing CLP Real Estate Co., Ltd." (20 15)- Zhong Min Z.Z.Zi No.07116), Beijing No.1 Intermediate People's Court held that: "As stipulated in the labor contract between the two parties, Wang Lian agreed to work in the workplace arranged by CLP' the office or business trip place of Party A'. The responsibility for not renewing the labor contract lies in the chain of kings. "

Another example is "Labor Dispute Case between Wang Yili and Beijing Dingming Property Management Co., Ltd. Jinggang City Building Branch" (20 17) No.03 Zhong Mindi 13376, and the Beijing No.3 Intermediate People's Court held that: "Wang Yili and Jinggang Building Branch clearly agreed on the terms of workplace transfer. In this case, Jinggang Building Branch changed Wang Yili's work place from the above agreed scope. Wang Yuli's appeal was illegally terminated on the grounds of major adjustment and no consensus was reached with Wang Yuli. There is no basis. "

For positive judgments, such as "Jiangsu Jiayu New Energy Technology Co., Ltd. and Jiangxia labor contract dispute case" (20 16) Su 0 1 No.7938, Nanjing Intermediate People's Court held that "the workplace is one of the main contents of the labor contract, which affects the interests of workers' family life and social life. In this case, although the workplace agreed by both parties in the labor contract is Zhenjiang/Nanjing, After the long-term performance of the labor contract involved, the agreed work place was further determined due to the actual performance. If the appellant changes the work place that has been determined in the actual performance of both parties during the performance of the contract, it shall negotiate with the appellee according to law, otherwise it may be deemed that the employer has not provided the working conditions agreed in the labor contract. "

Case 2: The labor contract only stipulates that the working place is XX, and the employer changes the working place within XX.

For affirmative judgments, such as "Nantong Yongan Textile Co., Ltd., Kong, etc. Apply for the cancellation of the arbitration award "(20 14), Nantong Intermediate People's Court Tong Zhong Shen Zi No.0048 holds that" the overall relocation of enterprises due to technological transformation and industrial optimization and upgrading should be supported, and the difficulties caused by it, such as long journey to work and inconvenience in taking care of families, should also be understood. The overall relocation of the enterprise, major changes in the objective conditions on which the labor contract was concluded and changes in the workplace are the direct reasons why the labor contracts of 25 people, such as Yong 'an Company and Kong, failed to be renewed upon expiration. Therefore, the Labor Arbitration Commission ruled that Yongan Company paid economic compensation according to the provisions of Item 5 of Article 46 of the People's Republic of China (PRC) Labor Contract Law, and there was no improper applicable law. "

For negative judgments, such as "Anhui Fengyuan Pharmaceutical Co., Ltd. Wuwei Pharmaceutical Factory applied for Ji Fengcui to revoke the arbitration award" (20 17) Wan 02 MinteNo. 12, Wuhu Intermediate People's Court held that "Fengyuan Pharmaceutical Co., Ltd. moved its new factory to a traffic distance of only about1km from the original factory according to the urban planning adjustment. As far as the above situation is concerned, in the case that Ji Fengcui failed to provide evidence to prove that the relocation of the factory had a substantial impact on his life, this case could not constitute a substantial change in the labor contract, but should belong to the scope of business autonomy. "

Another case is the labor contract dispute with Abbott Exhibition Equipment (Shanghai) Co., Ltd. (20 13) Pumin No.1 (Min). 4 1823. The People's Court of Pudong District of Shanghai held: "The labor contract signed by the plaintiff and the defendant stipulated that the plaintiff's work place was the company's warehouse. During the performance of the labor contract, the defendant moved the warehouse from the first warehouse to the second warehouse. Due to business needs, the plaintiff's work place changed from XXX Xuanmei Road in Sanzao Industrial Park, Pudong New Area to Lu Feng Road near Huadong Road, Chuansha New City, Pudong New Area, but it was still adjusted within the same administrative area ... The plaintiff asked the defendant to pay compensation for the illegal termination of the labor contract, and our hospital did not support it. "

Situation 3: The work place agreed in the labor contract is City A or Province A, and the employer changes the work place to City B or Province B..

This means that the workplace will change with the city or province. The court generally believes that the employer must reach an agreement with the employee in this case, otherwise the employer fails to provide working conditions in accordance with the labor contract, and the employee has the right to terminate the contract and demand economic compensation from the employer. For example, the Hangzhou Intermediate People's Court held that "Ya Sa He Lai Baode An Safety Products Co., Ltd. v. Wang Fucheng Labor Dispute" (20 14) Zhejiang Hangzhou Minzhongzi No.2658: "Baode An Company moved from Fuyang City to Taizhou City, although it is still in Zhejiang Province, it has crossed the region, and the distance between the two places is far away and the location has changed greatly. According to the actual situation of this case and the facts identified in a series of related cases, the court of first instance held that the last date for Wang Fucheng to move in was 20 14 15. According to the law, Baode An Company should pay the corresponding economic compensation. "

Situation 4: The employer and the employee have not agreed on the place of work, and the employer changes the place of work.

Does the employer have the right to change the workplace if the employer and the employee have not signed a labor contract, or if a labor contract has been signed but the workplace has not been agreed?

For affirmative judgments, such as "labor dispute case between Chen and Qingdao Yuandaxing Food Co., Ltd." (20 17) No.4783 in Lu 02 People's Middle School, Qingdao Intermediate People's Court held that: "Chen advocated the dissolution of the labor contract because Yuandaxing Company changed the place of performance of the contract without authorization, but the specific place where Chen provided labor services was not clearly stipulated in the labor contract between the two parties. Even according to Chen's claim, Yuandaxing Company moved to the new address and the old site. Chen advocates the economic compensation for the termination of the labor contract accordingly, and our hospital does not support it. "

Judgments with negative opinions, such as "Changsha Fuxiang Logistics Co., Ltd. v. Yin Kai Labor Dispute Case" (20 16) Xiang 01No.7842 in the early Republic of China, the Yuhua District People's Court of Changsha held that: "Although the plaintiff did not sign a written labor contract with the defendant, there was a factual labor relationship between the two parties. The two parties have clearly agreed on the work place, working conditions, labor remuneration, etc ... Although the plaintiff will not continue to run the business of the defendant's post due to the company's business problems ... it does not mean that the plaintiff can unilaterally change the work place and post agreed in the labor contract with the defendant. The plaintiff informed the defendant that the original contract could not be continued due to changes in business conditions. Although he told the defendant that he could choose other similar positions in the company, if the defendant refused, it could be considered that the plaintiff and the defendant had dissolved the labor relationship ... In this case, the plaintiff should pay the defendant economic compensation equivalent to one and a half months' salary. "

Situation 5: Does the business trip arranged by the employer belong to the change of work place?

Whether the employer sends workers to work in different places in the name of business trip is a change of work place, and the difference is very subtle. Courts generally make judgments based on working hours, work content and other factors. Generally speaking, if the working hours are short, the work content is temporary, and the work life of the workers has not been affected, it cannot be regarded as a change of work place. For example, Guangzhou Beilang Sanitary Ware Co., Ltd. and Lin Gencun's labor dispute (20 14) No.7573, Guangzhou Intermediate People's Court held that "Beilang Company arranged Lin Gencun's business trip and transportation and accommodation according to work needs, which is a temporary work task and does not belong to changing the work place."

In the case of labor contract dispute between Beijing Dijerry Software Co., Ltd. and Zhao Xiuyan (20 17) No.8023 at the beginning of the Republic of China, the Haidian District People's Court of Beijing held that "Dijerry arranged Zhao Xiuyan to work in Chengdu to provide assistance, which was a change in the labor contract in terms of time and work content."

Practical summary

According to the above cases, it can be summarized as follows: when the employer changes the work place, the workers demand to terminate the labor contract and demand economic compensation, but no agreement is reached:

1. The Labor Contract Law does not directly stipulate that the employer needs to pay economic compensation to the workers when the workplace changes or the contract is terminated. Instead, it is necessary to determine whether the change of work place belongs to "the employer fails to provide working conditions in accordance with the labor contract" as stipulated in Article 38. Therefore, when trying such disputes, the court should not only judge whether the workplace has changed, but also make a comprehensive judgment based on the impact of workplace changes on workers and the compensation measures taken by the employer to determine whether the employer meets the conditions for paying economic compensation stipulated in the Labor Contract Law.

2. The labor contract stipulates the only working place, such as XX city. If the employer changes the specific work place within the scope of XX city, and the employer can provide transportation subsidies, and it will not have a significant impact on the workers, the employer has the right to change the work place, and the workers have no right to ask for economic compensation on this ground. At present, the courts in Beijing, Shenzhen and other places have issued relevant opinions, recognizing that the employer has the right to change the workplace within the city.

The premise that the above-mentioned employer can change the work place within the municipal scope is that the labor contract does not stipulate a more specific work place than the municipal scope, such as XX District and No in XX City. XX district, XX city. If the work place agreed in the labor contract is smaller and more specific than the municipal scope, the employer needs to reach an agreement with the employee to change the work place within the city, otherwise the labor contract will be terminated and the employer needs to pay economic compensation.

3. When the labor contract stipulates the only working place, such as XX city, if the employer changes the working place across cities or provinces, it must reach an agreement with the employee through consultation, otherwise the labor contract will be terminated and the employer must pay economic compensation to the employee.

4. The labor contract does not stipulate the work place, and the court generally takes the actual work place of the laborer as the work place agreed by both parties. At this time, if the employer changes its work place in this city, and the employer can provide transportation subsidies, and it will not cause obvious impact on the workers, the employer has the right to change the work place. However, if the workplace changes across cities and provinces, it must be agreed with the workers through consultation, otherwise the employer must pay economic compensation to the workers to terminate the labor contract.

5. When multiple workplaces are agreed in the labor contract, there will be cross-city or inter-provincial situations, and whether this agreement is binding on workers is controversial. The two parties to a labor contract are not in an equal position, which involves whether the labor contract fully abides by the principle of autonomy of the will like a general contract, or whether it must also consider the impact on the stability of workers' lives. Therefore, the court does not simply make a decision from the legal point of view, but also needs to consider the possible social impact.

The author tends to think that if multiple workplaces are clearly agreed, such as city A and city B, province A and province B, etc. It is considered that it is clear and acceptable for workers to work in which specific place in the future. At this point, workers cannot claim to change the economic compensation in the workplace; If the agreement of multiple work locations is not clear, such as the agreement is similar to "travel location", "location of affiliated company" and "location of project". Because of the expression of similar work place, employees can't predict the specific work place when signing the contract. If the similar agreed place and actual work place are across provinces and cities, the employer must reach an agreement with the laborer through consultation, otherwise the employer must pay economic compensation for the termination of the labor contract.

6. If a worker goes to work in the changed new workplace and demands to terminate the labor contract on the grounds that the employer unilaterally changes the workplace and claims economic compensation, the court will not support it according to Article 1 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (IV).

Operational suggestion

First of all, when the employer formulates workplace terms, the agreed workplace scope should not be too wide, such as "Zhejiang Province" and "the whole country", which is easily identified as unclear. However, the author does not suggest that the employer should specify the work place too specifically, such as the agreed work place is specific to the house number. If the employer wants to make unilateral changes in the future, it will be extremely passive. In addition, the agreement of the work place should be clear, and don't just write the company name as the work place. If the labor contract stipulates multiple work places, each work place should be specific and clear, so as not to become an invalid agreement.

In addition, when the employer changes the work place in this city, it is best to give the workers transportation subsidies and provide free transportation conditionally, which is not only the embodiment of safeguarding the rights and interests of the workers, but also more legal for the employer to change the work place.

Finally, when signing a labor contract, workers should also pay attention to whether there are workplace clauses in the contract and whether the workplace is clear, so as to avoid disputes in the future. If employees don't recognize the new workplace unilaterally changed by the employer, the author suggests that employees don't go to work in the new workplace, otherwise they will regret and want to terminate the labor contract in the future, and may not get economic compensation.