It Is Illegal For Workers To Terminate Their Labor Relations By Refusing To Sign Blank Labor Contracts.

[case]

Lei Mou has been working in L company since 2003. In August 2008 and May 2014, the company issued a notice calling on Lei and others to sign a labor contract with the company within a specified time. Lei Mou refused to sign the contract due to the company's formatted contract in terms of duration, content, time and remuneration.

In June 13, 2014, the L company terminates labor relations on the ground that Lei Mou refused to sign a written labor contract.

Lei Mou appealed to L company to pay compensation for breaking the labor contract illegally.

[divergence]

One view is that the L company is legally discharged by the fifth and sixth provisions of the labor contract law, and no compensation should be paid.

Another view is that the termination of L's labor relations with Lei Mou is a violation of the legal provisions, the abuse of dominant position of the illegal release, should pay compensation.

[comment]

The author agrees with the second views for the following reasons:

1. the content of the labor contract is clear and specific.

The seventeenth clause of the labor contract law clearly stipulates that the labor contract should have at least 9 contents of the labor contract duration, remuneration, social insurance and so on. If the content agreement is not specific or there is no agreement to dispute, the eighteenth provision of the law can be re negotiated between the laborer and the employing unit, and the collective contract can not be applied without consultation.

If a collective contract does not stipulate remuneration for labor, equal pay for equal work shall be applied. If there is no collective contract or collective contract does not stipulate labor standards, the relevant provisions of the State shall apply.

The employer is the provider of the post, and the written labor contract in practice is also provided by the employer. The content of the labor contract is clear and specific, which is the natural obligation of the employer.

In this case, L company has signed a written labor contract for two times, but the key content of the format contract provided by the two party is blank, and its behavior obviously violates the relevant provisions of the labor contract law.

2. the law forbids employers to enjoy the right of arbitrary termination of labor relations based on their advantageous position.

The labor contract law of thirty-ninth, fortieth, forty-first, forty-third stipulates the conditions and procedures of the employers to dissolve labor contracts and layoffs. Except for one of the six cases in which there are thirty-ninth provisions, the employer can dissolve the labor contract directly, without the need to inform and compensate for the labor relations in advance.

In this case, Lei Mou did not take the initiative to terminate labor relations during his work, and there was no evidence to prove that L company terminated the conditions of labor relations. L company did not have the initiative to rescind labor relations in the labor contract law.

3., workers refuse to sign blank labor contracts is a reasonable self-help behavior.

The confidence of employers in "not signing contracts can be relieved" comes from the provisions of the fifth and sixth regulations of the implementation of the labor contract law, because fifth of the regulations have "...

If a laborer fails to conclude a written labor contract with the employer, the employer shall notify the worker in writing to terminate the labor relationship without paying the financial compensation to the laborer. "

Article sixth, paragraph 1, shall have a written labor contract which has not been worked with the employee for more than one month after the employer has been employed for more than one month.

To supplement written labor contracts with workers;

If the employer fails to conclude a written labor contract with the employer, the employer shall notify the worker in writing to terminate the labor relationship. "

Expression.

Literally, it seems that employers can refuse workers.

In order to terminate labor relations, the law is misinterpreted in a way out of context.

Two laws and regulations have set up applicable time conditions and procedural requirements, of which fifth are "within one month from the date of self employment, after the written notice of the employer", and the sixth is "a written labor contract not signed with the employee for more than one month after the date of the employer's employment."

The key point is that "written labor contract" is not only a labor contract written in the form of a contract, but a written labor contract with the content of the seventeenth provision of the labor contract law. For a blank labor contract, a labor contract which does not strictly comply with the provisions of the law, the relevant contents are undefined or not agreed, not the contract referred to by the legislature, and the provisions of the fifth and sixth rules for the implementation of the labor contract law shall be excluded.

The worker's refusal to such a contract is a dissatisfaction against the prior obligation of the employer, and it is a reasonable limit of self rescue. The result is only that the written labor contract has not been signed, and it still has to maintain the balance of rights and obligations under the applicable rules. This is also in line with the principle of credit and fairness in civil activities.

If the employer is to terminate the contract, it will undoubtedly abuse the dominant position and infringe upon the legitimate rights and interests of the laborers.

In this case, Lei Mou and L company have formed a non fixed term labor contract relationship. L company abuses the dominant position of the position control. On the basis of misinterpreting the legal provisions, it carries out "delisting", violating the provisions of the labor contract law, and shall bear the legal liability for illegal termination of labor in accordance with the law.