Undergraduates who have not graduated have the right to work.

Undergraduates who have not graduated have the right to work.

Xiao Liu is a recent college graduate of Beijing Agricultural College. He officially graduated from the university on July 20 10. In February last year, 65438+, an investment consulting company in Beijing, went to Beijing Agricultural College for recruitment. Xiao Liu was recruited to work in this company on June 8, 65438 as an investment consultant, responsible for opening up the industry market and attracting customers' investment. Both parties agree that the probation period is one month, and the basic salary during the probation period is 800 yuan, and the commission is calculated separately. In the second month, the employee became a regular employee, and the basic salary was raised to 1500 yuan.

On February 10, the company paid Xiao Liu a salary of 539 yuan in the form of salary slips. In March 1 1, Xiao Liu left his job because of the company's salary arrears. Because the company has been in arrears with Xiao Liu's salary, Xiao Liu Sui submitted an arbitration application to the Beijing Labor Dispute Arbitration Committee. The arbitration commission believes that Xiao Liu is a college student who has not obtained a diploma, completed his studies and obtained relevant academic certificates. During his school days, he went to work in the enterprise only as an activity to participate in social practice. He is not a laborer as stipulated in the Labor Contract Law, and he is not a qualified subject to conclude labor contracts and establish labor relations with employers. Finally, his application for arbitration was rejected.

After receiving the ruling that the arbitration commission lost the case, Xiao Liu sued the company to Xuanwu District Court, demanding that it pay the salary and apologize.

The Xuanwu District Court held through trial that the laborer should obtain corresponding remuneration from the employer when establishing labor relations with the employer and paying labor remuneration. In this case, the defendant admitted that Xiao Liu worked in the company from June 8, 2009 to March 8, 2009, which was confirmed by the court.

A few days ago, the Xuanwu District People's Court of Beijing confirmed the status of college students as the main body of labor for the first time, and clearly affirmed that college students can also find employment, which belongs to the jurisdiction of the Labor Contract Law. And judge the employer accordingly? An investment consultant limited liability company in Beijing paid student Xiao Liu a salary of 65,438+0,847 yuan from February 65,438+0 to March 65,438+0 this year. (Wang Bin, Jiang Yun, Su Gang, Zhang Changhai, according to relevant reports)

Statement 1: Undergraduates who have not graduated enjoy the right to work according to law.

Wang Liqian (President of the Second People's Court of Nanyang Intermediate People's Court): The right to work refers to the right of workers to obtain labor opportunities, get paid in the process of labor and get basic protection under the constitutional guarantee. The right subject of labor right is the laborer, and the obligation subject of labor right is the state, society and employer. The connotation of labor rights is very extensive, mainly including the following contents:

First, the right to employment. It means that citizens who have the ability to work have the right to participate in social labor, get labor remuneration or business income within the legal working age.

Second, the right to labor remuneration. It is the right of workers to obtain legal income by engaging in various kinds of labor. Including wage negotiation right, wage claim right and wage control right.

Third, apply for the right to handle labor disputes. Labor disputes are disputes caused by differences in labor rights and obligations between parties in labor relations. According to the law, both parties to labor relations can apply to the Labor Dispute Arbitration Committee for arbitration, and those who refuse to accept it can bring a lawsuit to the people's court.

In addition, the contents of workers' labor rights stipulated in the labor law also include: the right to rest and vacation, the right to labor protection, the right to vocational training, the right to social insurance, the right to form trade unions and the right to participate in democratic management.

Xiao Liu's labor rights involved in this case include: the right to employment, the right to remuneration, and the right to submit labor disputes.

Song Xiping (judge of Xichuan County People's Court):

China's Labor Law stipulates that citizens who have reached the age of 16 have the right and obligation to work. At the same time, servicemen, nannies, civil servants and rural workers are excluded from the main body of labor rights and obligations. However, it does not exclude the labor rights of college graduates. In other words, workers who are not excluded should enjoy the right to work according to law as long as they meet the age requirements stipulated in the labor law.

At the same time, Article 3 of China's Labor Contract Law stipulates that the conclusion of labor contracts should follow the principles of legality, fairness, equality, voluntariness, consensus, honesty and credibility. The labor contract concluded according to law is binding, and the employer and the employee shall perform the obligations stipulated in the labor contract.

In this case, Xiao Liu was over 16 years old when he joined the company, which met the age of working ability stipulated in the Labor Law. His status as a college student is not excluded by the labor law. In addition, when Xiao Liu signed the contract with the company, he clearly told himself that he had not graduated, and the company signed the contract with Xiao Liu on the premise of knowing this situation. At the same time, Xiao Liu's company also clarified the specific positions and responsibilities to Xiao Liu and paid him 1 month's salary. The above facts fully show that Xiao Liu is not an intern in this company, but belongs to employment and belongs to the jurisdiction of the labor contract law. Therefore, according to the relevant provisions of China's Labor Law and Labor Contract Law, Liu Wei should be recognized as a qualified subject of labor contract, and the labor contract relationship between the two parties is established, and the company should pay labor remuneration to Xiao Liu.

Statement 2: Legislation should be made to clarify the labor status of college graduates.

He Shuanlin (Judge of tanghe county People's Court): China's higher education has changed from elite education to quality education. Many college students, especially those from rural or urban low-income families, need work-study programs to bear the high tuition fees and reduce the family burden. Even for students who have no burden on their families, social practice and exercise are of great benefit to their future employment and better adaptation to society. Therefore, many college students will choose to sign short-term employment contracts with enterprises, take part in social exercises or simply get employed in advance during holidays or when they are about to graduate.

However, today, it is a common phenomenon for college graduates to participate in social practice and internship. Whether they can become qualified subjects of the labor contract law, whether they can directly apply the labor law and related explanations and regulations in case of disputes, and whether they can protect their rights through the labor law after disputes, are not clearly stated in the law. Only article 12 of the Opinions on Several Issues Concerning the Implementation of the Labor Law promulgated by the former Ministry of Labor1on August 4, 1995 has short and vague provisions? Students who take part-time jobs in their spare time are not considered as employment, and there is no need to sign labor contracts without establishing labor relations? . But the law is wrong? Work-study program? Clear definition, only for students? You don't have to sign a labor contract. . There is no clear answer to how to deal with the signed ones.

Zhang Xin (Vice President of zhenping county People's Court):

Although the opinions of the former Ministry of Labor are easy to be ambiguous, they do not deny the labor rights and interests of college students. This is because, in the past elite education era, the so-called employment meant that the state assigned jobs to college students, but college students' work-study programs could not be counted as assigned jobs. The former Ministry of Labor made this provision from the perspective of safeguarding national interests and the legitimate rights and interests of college students.

Not treating college students' work-study programs as employment does not mean not recognizing college students' labor rights. At the same time? Not a job? From another perspective, it just shows that college students have the right to work, because? Not a job? It shows that in other places, such as assigning jobs, it is regarded as employment, and it shows from the side that college students have the ability to work and enjoy the right to work as long as they meet the requirements of age. However, the biggest drawback of this regulation is that the labor rights and interests of college students who have not graduated are in a state of chaos under the current situation that the state no longer distributes them. Many employers often use this as an excuse to deny college students' status as workers, thus damaging their legitimate rights and interests. Labor disputes that damage the legitimate labor rights and interests of college students occur from time to time, but after the disputes occur, they often face? There is nothing to follow. Awkward.

Therefore, it is suggested that the state clarify the labor status and labor rights and interests of college students in the form of law, or revoke this provision of the former Ministry of Labor, which can not only reduce the occurrence of employers maliciously damaging the labor rights and interests of graduates, but also avoid disputes? Legal embarrassment? To a certain extent, it can also guide college students to get employment in advance and divert employment pressure.

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