HR Legal Corner: Can Employers unilaterally raise salaries?
Published:
2021-03-16
Tan joined a company in Beijing in November 2007 to engage in sales work, with a monthly basic salary of 6000 yuan. In November 2012, Tan applied for sick leave due to left chest soft tissue injury and began to enjoy the medical treatment period. In January 2013, Tan was diagnosed with secondary tuberculosis and could enjoy a six-month medical treatment period according to law. During the medical period, the company has paid sick pay according to law. On May 8 of the same year, the company notified Tan Mou in writing by EMS that his medical period would expire on June 9 and he would have to return to work on June 10 of that year, and informed him that if he failed to return to work and provide relevant rehabilitation certificates, he would be deemed unable to engage in his original work.
Talk about a failure to return to work on June 10, and explain to the company that his disease has not been cured after the expiration of the medical period, and he cannot return to his original sales position. On June 12, the company once again notified in writing by EMS to talk about a job in a sales support position. The monthly salary standard is 5000 yuan, and the job is on June 20. If the company still does not work in a sales support position, it will be deemed that the company cannot engage in a job otherwise arranged by the company, and the company will terminate its labor contract according to law. Talk about a new job on June 20, 2013, but require the company to pay him according to the original monthly salary standard of 6000 yuan. Talk about a recognized company's job transfer arrangements, but do not recognize the salary cut, that the company's behavior is a deduction of wages.
The company believes that the labor contract between the two parties has agreed on the principle of "salary changes with post". Now it is in line with the agreed situation. The company has the right to adjust the salary, and the salary level after the salary adjustment is the same as that of the employees in the same position, which is also in line with the principle of equal pay for equal work. There is no deduction of salary for a certain claim.
case analysis]
The above-mentioned cases belong to the situation in which the employer adjusts the wages of the workers at the same time when the employer exercises the statutory unilateral transfer right, and the workers refuse to accept the decision to reduce the salary. So, when the employer exercises the right of unilateral job transfer in accordance with the law, can it adjust the salary at the same time?
The answer is yes, there is a very close relationship between the work content, job position and salary of workers. As jobs change, wages, which are the value of labor, should also change.
Common wage adjustments by employers include:
(1) When the employer enjoys the right of unilateral transfer in accordance with the law, the salary is adjusted accordingly. Specifically, it refers to the post adjustment and salary adjustment when the laborer is unable to engage in the original job after the medical treatment period expires, that is, the situation in the above cases, and the post adjustment and salary adjustment when the laborer is not competent for the job.
(2) Adopt a structural floating wage, adjusted within the agreed range. For example, the employer and the worker agree that the wage consists of a fixed wage and a floating wage. Fixed salary includes basic salary, post salary, skill salary, etc.; floating salary includes performance, bonus, commission, etc. Among them, the floating wage can be adjusted within the scope of the labor contract. From the point of view of the labor contract agreement, it is for negotiation and adjustment. However, labor contracts usually only stipulate in general and in principle that the employer has the autonomy to pay floating wages, and the specific amount of floating wages, or how to pay them within a certain range, is still controlled and adjusted by the employer.
(3) According to the rules and regulations, the salary adjustment shall be made when the employees who violate discipline are demoted. In practice, the rules and regulations of many employers stipulate that workers who violate discipline will be subject to disciplinary sanctions of demotion and salary reduction. However, when workers do not accept the disciplinary sanctions of demotion and salary reduction, and after labor arbitration or litigation is initiated, the probability of the employer winning the lawsuit is often Low. The reason is that either the employer cannot prove the violation of labor discipline, or the rules and regulations are not clearly stipulated or have not been democratically publicized, or the demotion and salary reduction are not reasonable.
(4) Other unilateral wage adjustments, such as promotion (plus) salary, annual (plus) salary, etc.
Based on its own development and management needs, the employer has the right to formulate human resources strategic planning, and has the right to stipulate the employee's rank (position) system, promotion conditions, etc., to provide space for the employee's career development, and the final user unit and the worker can develop together. Then, if the employer promotes the laborer, its wage level should not violate the principle of equal pay for equal work, and it is more appropriate to adjust it to a reasonable range.
Lawyer Advice]
1. When the employer exercises the right of unilateral job transfer in accordance with the law and adjusts the wages of workers accordingly, it shall meet the statutory prerequisites and reasonable requirements. It is suggested that the employer should clearly stipulate in the labor contract or rules and regulations that "salary changes with post" and "salary changes with post". Through the establishment of the post system and salary corresponding to the standard, according to the new position corresponding to the wage standard to determine the wages of workers. If there is no such provision or agreement in the rules and regulations or labor contract, and there is no standard corresponding to the post system and salary, in order to reduce legal risks, it is best to negotiate with the laborer to determine the salary standard after the transfer, or by issuing a unilateral notice of post/salary adjustment to the laborer, which is signed and confirmed by the laborer.
2. When the employing unit deals with the violation of demotion and salary reduction of workers, the following conditions should be met: first, the employing unit must have clear rules and regulations, and clearly list the specific circumstances of treatment according to demotion and salary reduction; second, the formulation of rules and regulations should conform to the legal democratic and publicity procedures; third, there should be sufficient evidence to prove that the workers have violated discipline; finally, the employer is required to justify the demotion and salary reduction. If the above conditions are not met, the demotion of workers will face the legal risk of losing the lawsuit.
3. When the employer makes unilateral adjustments to the wages of workers, it should first analyze and determine which adjustments are the situations in which the employer enjoys the autonomy of distribution and which are the situations in which the employer enjoys the right of unilateral transfer. At the same time, we should consciously obtain relevant evidence that workers know and agree to their positions and salary adjustments as far as possible. In addition, in order to increase the autonomy of the employer, the author suggests that when signing the labor contract, the post and salary adjustment should be agreed, and at the same time, a legal and effective performance appraisal, labor management and salary system should be established to prove the legitimacy and rationality of the employer's post and salary adjustment. This not only ensures the management autonomy of employers, but also protects the legitimate rights of workers.
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