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The Labor Contract Law will be officially implemented on June 5438+1 October1day, 2008, which refines many contents of the Labor Law and is closely related to every worker and employer. This newspaper will launch the topic of "Labor Contract Law" for three consecutive days. This topic is based on staff.

From the perspective of work, it is divided into three parts: entry, on-the-job and resignation, and interprets all aspects of the labor contract law. Today, I will introduce the "trial" and "contract" of the induction article.

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Article 19 If the term of the labor contract is less than 3 months and less than 1 year, the probation period shall not exceed 1 month; If the term of the labor contract is more than one year but less than three years, the probation period shall not exceed two months; The probation period of a labor contract with a fixed term of more than 3 years or without a fixed term shall not exceed 6 months. The same employer and the same worker can only agree on a probation period. A probation period may not be stipulated in a labor contract whose term is to complete certain tasks or whose term is less than 3 months.

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Han, deputy director of the Institute of Labor Law of the Chinese Academy of Management Sciences, said that at present, the employer's agreement on the probation period is regardless of the employee's position and whether it is necessary to try it out. Some employers sign a one-year contract with workers, of which half a year is a probation period; Some employers even stipulate that the probation period is as long as the term of the labor contract, that is, the probation period expires; Some workers often agree on probation more than once in the same employer, and it is difficult to become regular employees by changing positions and agreeing on probation. Han Intelligent believes that Article 19 of the Labor Contract Law is a targeted provision for this issue.

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According to Han Zhi's theory, the labor law only stipulates that a probation period can be stipulated in a labor contract, and the longest probation period shall not exceed six months. The Labor Contract Law refines the probation period according to the term of the labor contract. In addition, the "Labor Law" does not clearly stipulate that the probation period is included in the labor contract period, which leads many employers to sign only the probation contract for new employees and not the formal labor contract. The Labor Contract Law clearly stipulates that the probation period is an integral part of the contract and inseparable, and it is invalid to sign a probation contract alone.

The above-mentioned laws limit the length of the probation period according to the length of the labor contract, so as to prevent the employer from probation workers indefinitely. For example, if an employer signs a two-year labor contract with an employee, the probation period shall not exceed two months. However, this can't be understood as that if the employee is on probation for two months, the employer must sign a two-year labor contract with him. The employer can also choose to sign a contract with the employee for one year or less, but in this case, the probation salary of the second month after the employee becomes a regular employee should be paid according to the standard.

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On June 4, 2004, Ms. Liu signed a contract with a pharmaceutical company in Shanghai. The contract period is from June 4, 2004 to June 365438+February 3 1 of the same year. The probation period is 3 months, with a basic salary of 2,000 yuan during the probation period and 2,500 yuan after becoming a full member. On July 12 of the same year, Ms. Liu was dismissed by the company.

Ms. Liu then sued the pharmaceutical company to the court, demanding that the company pay a monthly salary of 2,500 yuan and an economic compensation of 2,500 yuan to terminate the labor contract. After trial, the court held that the contract period between Ms. Liu and the pharmaceutical company was less than 1 year, but the agreed probation period was 3 months, which violated the provisions of Shanghai that the labor contract was less than one year and the actual probation period should not exceed one month. Ms. Liu resigned after working for one month, when the probation period actually ended. Accordingly, the court ruled that the pharmaceutical company paid Ms. Liu 2500 yuan according to the normal salary.

Han Intelligence said that the judgment in this case was based on the Shanghai labor contract rules, in which "the labor contract is less than one year, and the actual probation period shall not exceed one month" is basically consistent with the provisions of the Labor Contract Law. However, the provisions of the Shanghai labor contract only apply to Shanghai, and the labor contract law is a mandatory national law. After the implementation of this law, every worker can safeguard his legitimate rights and interests accordingly.

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Article 20 The wages of workers during the probation period shall not be lower than 80% of the minimum wage of the same position in the unit or the wage agreed in the labor contract, and shall not be lower than the minimum wage standard in the place where the employer is located.

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Hao Yunfeng, a member of the Social Security and Labor Legal Affairs Committee of the Municipal Lawyers Association, said that one aspect of the abuse of probation by employers is that the probation salary paid to workers is too low. In practice, many employers regard probation offenders as cheap labor, and reduce their basic salary at will or even not give them. In this regard, the "Labor Contract Law" has made targeted provisions and set a statutory minimum standard for probation wages.

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In addition to the minimum wage in the place where the employer is located, this law also stipulates two minimum wages for probation: not less than the minimum wage for the same position in the unit, or not less than 80% of the wage agreed in the labor contract.

Regarding the question of which standard to implement, Hao Yunfeng believes that if the probation salary is stipulated in the contract and the amount is not less than 80% of the salary after becoming a full member, the probation salary shall prevail; However, if the salary for probation is not stipulated in the contract, or the amount is less than 80% of the salary after employment, 80% of the salary after employment shall prevail.

In addition, Hao Yunfeng pointed out that during the probation period, workers not only enjoy the right to receive labor remuneration, but also enjoy the rights to rest and vacation, receive vocational skills training, and enjoy social insurance and welfare. Because Article 19 of the Labor Contract Law stipulates that the probation period is included in the term of the labor contract, it breaks through the stipulation in the Labor Law that the probation period is not a statutory clause in the labor contract.

Probation period cannot be "dry period"

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Article 83 If an employing unit violates the provisions of this Law by agreeing a probation period with an employee, the labor administrative department shall order it to make corrections. If the probation period agreed in violation of the law has been completed, the employer shall pay compensation to the employee based on the monthly salary of the employee after the expiration of the probation period and according to the time limit that has been fulfilled outside the statutory probation period.

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Han Zhixue believes that the purpose of this regulation is to urge employers to agree on a probation period with workers according to law by increasing the illegal cost of employers.

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The employer's illegal agreement on the probation period mainly includes the following aspects: (1) the agreed probation period exceeds the maximum period stipulated by law; (2) The same employer and the same employee have agreed on more than one probation period; (3) Labor contracts with the completion of certain tasks as the deadline or with a deadline of less than 3 months; (four) the labor contract only stipulates the probation period or the term of the labor contract is the same as the probation period. If the invalid probation agreement has actually been fulfilled, the employer shall pay compensation to the employee according to the fulfilled probation period and based on the employee's monthly salary.

According to the provisions of this article, it is assumed that the employer stipulates that the contract period of the laborer is one year, the probation period is three months, the monthly salary of the probation period is 1500 yuan, and the monthly salary after becoming a full member is 1800 yuan. Then, if the laborer does not actually work, the employer does not need compensation. If the employee leaves the company after working for 3 months, the employer will pay the employee 1.500 yuan in the first month, and illegally pay 1.800 yuan in the second month due to the probation period.

Units must compensate for illegal trials.

During the probation period, the issuer shall explain the reasons.

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Article 2 1 During the probation period, the employing unit shall not terminate the labor contract, except that the employee is under the circumstances specified in Item 1, Item 2 and Article 40 of Article 39 of this Law. If the employer terminates the labor contract during the probation period, it shall explain the reasons to the employee.

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Professor Guan Yu, legal adviser of the All-China Federation of Trade Unions, said that the Labor Law only stipulates that the employer can terminate the contract if it is proved that it does not meet the employment conditions during the probation period. There are no circumstances under which the labor contract can be dissolved. In practice, it is very serious for the employer to terminate the labor contract at will during the probation period. Therefore, the Labor Contract Law clearly stipulates the issue of terminating the contract during the probation period.

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In order to curb the employer's malicious use of the probation period, the Labor Contract Law stipulates that during the probation period, the employer must have evidence and reasons to prove that the employee does not meet the employment conditions and why he is unqualified. If the employer maliciously uses the employee and fails to perform its due obligations, the employee will resort to the law and the employer will bear the risk of losing the case. (Jinghua Times)