A non fixed term labor

Objective: a few months ago, a friend and netizen leaves a message or by telephone to me to write an article about the "non fixed term labor contract characteristics" and telling them how to "lift the non fixed term labor contract," the article, because of the busy and trivia, unexpectedly delayed until now, sorry. Today, this paper has been completed, in order to provide dinner for friends:

One, the concept of non fixed term labor contract:

The non fixed term labor contract, refers to the unit and the laborer have agreed not to determine the time of the termination of labor contract. "No termination date" is not no stop time, but to no end time determination, which limit the length of unable to anticipate and identify. No termination of the contract is fixed, the biggest difference between the non fixed term labor contract with a fixed term labor contract.

Two, the employer should be signed without a fixed term labor contract with the laborer:

The unit and the laborer consensus, may conclude a labor contract without a fixed term. Any of the following circumstances, the employee proposes or agrees to renew, conclude a labor contract, unless the employee proposes to conclude a fixed-term labor contract, it shall conclude a labor contract without a fixed term:

    (a) workers over ten years working in the employer continuous;

    (two) the employer first implementation of labor contract labor contract system or the state-owned enterprise reform again, workers of over ten years and the statutory retirement age from less than ten years of working in the employing unit for;

    (three) for a two fixed term labor contract, and the employee is not the law of the thirty-ninth and fortieth first, second provisions of the situation, to renew the labor contract.

Shen Binti lawyer reminded:In Japanese employee employer within one year and workers do not enter into a written employment contract, as between the two sides has been without a fixed term labor contract.

Three, the employer refuses to sign the legal consequences of non fixed term labor contract:

If the employer violates the provisions of the labor contract law and workers do not enter into a non fixed term labor contract, it shall conclude a non fixed term labor contract, to pay two times of monthly wages of workers.

Four, how to change the non fixed term labor contract:

The non fixed term labor contract and other types of labor contracts, according to the agreement between the parties to make a change. To change the terms of the contract, both parties shall negotiate in accordance with the voluntary, equality principle, can not take coercion, fraud, concealing the fact that such illegal means, must also pay attention to the content after the change is not illegal.

Five, the employer can non fixed term labor contract termination in accordance with the law case:

The non fixed term labor contract is not like a lot of the employer and the worker that once signing will not be able to release. The legal circumstances appear or consensus, can also relieve. The following situations, the non fixed term labor contract shall terminate:

(a) consensus unit and a laborer;
(two) it has been proved that the employee does not meet the conditions of employment during the probationary period;
(three) the employee seriously violates the rules and regulations of the employer;
(four) a serious dereliction of duty, engage in malpractices for selfish ends, causing substantial damage to the employer;
(five) workers also establishes labor relationship with other employers, a serious impact on the completion of the work unit, or by the employer, refuse to correct it;
(six) workers to fraud, coercion, or position of vulnerability, the use of units to make or change the labor contract in violation of the true meaning of the case;
(seven) the workers to be investigated for criminal responsibility according to law;
(eight) the employee is sick or non work related injury, after a certain period of medical treatment can not engage in the original work, also cannot be engaged in be arranged by the employing unit of work;
(nine) the worker can not do the work, after training or adjustment to work, still not qualified for the job;
(ten) the basis for the conclusion of the labor contract changes, resulting in inability to perform the labor contract, after consultation with the unit and the laborer, failed to reach agreement on Amending the labor contract;
(eleven) the employer is being restructured according to the enterprise bankruptcy law;
(twelve) with the production and operation units serious difficulties;
(thirteen) enterprises production, technological innovation or business mode, by changing the labor contract, the need to reduce staff;
(fourteen) in the objective economic situation of other labor contract is based on significant changes, resulting in inability to perform the labor contract.

Shen Binti lawyer reminded:If the laborer:A, engaged in contact with occupation hazards of workers not to carry out occupation health inspection before leaving, or suspected occupation disease patients in the diagnosis or medical observation; B, in the units suffer from occupation disease or injury at work was to confirm the loss or partial loss of working capacity; C, illness or non work related injury, in the period of treatment; D, female workers during pregnancy, childbirth, lactation; E, in this work units for fifteen years, and from the mandatory retirement age of five years; other circumstances as prescribed by laws and administrative regulations, F. Unless the consensus, employers can't be on the basis of the above article (eight), (nine), (ten), (eleven), (twelve), (thirteen), (fourteen) the provisions of the labor contract with the laborer unilateral termination.

Six, the employer to terminate the legal procedures and the economic compensation of labor contract without a fixed term

(a) first proposed and in consultation with the workers agree to cancel without a fixed term labor contract, the employer shallThe economic compensation in accordance with the number of working years;

(two) it has been proved that the employee does not meet the conditions of employment the employer to terminate the non fixed term labor contract during the probation period, three days in advance notice to workers, but does not need to pay economic compensation;

(three) the employee seriously violates the rules and regulations of the employing units employer terminates the labor contract without a fixed term, to obtain the relevant evidence to the employer, can immediately notice to remove the non fixed term labor contract, there is no need to pay economic compensation;

(four) a serious dereliction of duty, engage in malpractices for selfish ends, causing substantial damage to the employer the employer terminates the labor contract without a fixed term, to obtain the relevant evidence to the employer, can immediately notice to remove the non fixed term labor contract, there is no need to pay economic compensation;

(five) workers also establishes labor relationship with other employers, a serious impact on the completion of the work unit, or by the employer, refuse to correct, to obtain the relevant evidence to the employer, can immediately notice to remove the non fixed term labor contract, there is no need to pay economic compensation

(six) workers to fraud, coercion, or position of vulnerability, the use of units to make or change the labor contract in violation of the true meaning of the case, to obtain the relevant evidence to the employer, can immediately notice to remove the non fixed term labor contract, there is no need to pay economic compensation.

(seven) the workers to be investigated for criminal responsibility according to law, obtain the relevant evidence to the employer, can immediately notice to remove the non fixed term labor contract, there is no need to pay economic compensation.

(eight) the employee is sick or non work related injury, after a certain period of medical treatment can not engage in the original work, also cannot be engaged in be arranged by the employing unit work, should advance30 days notice to the worker, or pay the worker an extra month's salary, the employer may according to the case of termination of labor contract without a fixed term, then also shall pay the economic compensation in accordance with the number of working years.

(nine) the worker can not do the work, after training or adjustment to work, still can not work, should advance30 days notice to the worker, or pay the worker an extra month's salary, the employer may according to the case of termination of labor contract without a fixed term, then also shall pay the economic compensation in accordance with the number of working years.

(ten) the basis for the conclusion of the labor contract changes, resulting in inability to perform the labor contract, after consultation with the unit and the laborer, failed to reach agreement on Amending the labor contract, should advance30 days notice to the worker, or pay the worker an extra month's salary, the employer may according to the case of termination of labor contract without a fixed term, still should pay economic compensation in accordance with the number of working years.

(eleven) the employer is being restructured according to the enterprise bankruptcy law, the need to cut staff twenty people or less than twenty people but the total number of employees more than ten percent, the employer shall be thirty days in advance to the trade union or all the workers to explain the situation, listen to the opinions of the trade union or employees, staff reduction programme by the report, to the the labor administrative departments may layoffs, but should pay economic compensation in accordance with the number of working years. In this case, a worker without a fixed term labor contract, and this unit should be retained in preference to.

(twelve) serious difficulties with production and management units, to reduce staff twenty people or less than twenty people but the total number of employees more than ten percent, the employer thirty days in advance to the trade union or all the workers to explain the situation, the opinions of the trade unions or employee opinions, downsizing programme by the report, to the administrative department of labour you can cut, but should pay economic compensation in accordance with the number of working years. In this case, a worker without a fixed term labor contract, and this unit should be retained in preference to.

(thirteen) enterprises production, technological innovation or business mode, by changing the labor contract, the need to reduce staff, to reduce staff twenty people or less than twenty people but the total number of employees more than ten percent, can be cut, but should pay economic compensation in accordance with the number of working years. In this case, a worker without a fixed term labor contract, and this unit should be retained in preference to.

(fourteen) in the objective economic situation of other labor contract is based on significant changes, resulting in the labor contract can not perform, to reduce staff twenty people or less than twenty people but the total number of employees more than ten percent, can be cut, but should pay economic compensation in accordance with the number of working years. In this case, a worker without a fixed term labor contract, and this unit should be retained in preference to.

Lawyer Shen Binti is the conclusion:Many employers because of the lack of a correct understanding of the non fixed term labor contract, believe that without a fixed term labor contract is signed can not lift, non fixed term labor contract as"A lifelong burden", try various devices to avoid a legal obligation of non fixed term labor contract. In fact not the case, without a fixed term labor contract, laborer is not unbreakable "a secure job", not the employer cannot throw off the "burden", to meet certain conditions can be dissolved or terminated. The correct choice of non fixed term labor contract, the labor both sides may also be a win-win results: workers can be more comfortable working in a company, to ensure the stability of labor relations; to post some need long-term stability of the employer, for this kind of labor contract conducive to ensuring stability of this kind of work, in favor of the employing units to reduce labor costs.

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The author of this article: Beijing labor law lawyer Shen Binti (the original) 

Office address: Beijing Dongzhimen South Street No. three building 18 floor, even smell the law firm         

Electronic mailbox:Shenbinti@yahoo.com.cn

Service telephone: 1366-131-3967,1530-111-5671