My Opinion on the Legal Perfection of Part-time Employment System

[Abstract]]In the context of the in-depth development of China's market economy, the realization of labor rights has also shown a diversified trend, and the part-time employment system has emerged. How to protect the rights of this part of labor relations under diversified labor relations has become a very important issue. This paper analyzes the shortcomings of the current part-time employment system, and puts forward a series of rectification programs, the purpose is to promote the law in this area more perfect, so that this form of employment standardized operation.

Key words]Part-time Employment Full-time Employment Contract Law

Due to the late start of part-time employment in China, there is still a certain gap compared with other developed countries. There are shortcomings in legislative technology and lack of special legislation on part-time employment. In practice, the legitimate rights and interests of part-time workers are vulnerable to infringement, low wages, poor working conditions, lack of social security, and can not enjoy equal legal protection with full-time workers. On the one hand, it is not conducive to the protection of the legitimate rights and interests of part-time workers and dampens their enthusiasm for labor. On the other hand, it is not conducive to the harmony and stability of labor relations, which is not conducive to the healthy development of part-time employment and economic development. Therefore, it is necessary to conduct a more in-depth study on the legal issues of part-time employment, and use a good system design to ensure the better development of part-time employment.

Definition of Part-time Employment in 1.

(I) the concept of part-time employment

Article 68 of my country's "Labor Contract Law" defines part-time work: "Part-time employment refers to hourly remuneration, and the average daily working hours of workers in the same employer generally do not exceed four hours., The cumulative working hours per week do not exceed 24 hours of employment." It can be seen from this provision that my country's definition of part-time employment is based on daily working hours combined with weekly working hours, that is, the average daily work does not exceed four hours, and the cumulative weekly work does not exceed 24 hours.

Before the promulgation of the Labor Contract Law, the definition of part-time employment in China was mainly based on the Opinions on Several Issues Concerning Part-time Employment issued by the Ministry of Labor and Social Security in 2003, in which part-time employment was defined as: "Part-time employment refers to hourly remuneration, and the average daily working time of workers in the same employer does not exceed 5 hours, the form of employment in which the cumulative weekly working hours do not exceed 30 hours." The comparison of the two laws shows that the provisions of the "Labor Contract Law" are stricter than the "Opinions" in terms of time standards, and the daily working hours and weekly working hours are shortened by one hour and six hours respectively. This shows that Chinese legislators first recognized the new thing of part-time employment, but they were relatively cautious. In order to prevent part-time employment from impacting full-time employment, the conditions stipulated are stricter than other countries.

Characteristics of Part-time Employment in (II)

Compared with full-time employment, part-time employment has the following characteristics:

One is lower labor costs. From the reality, in addition to high-end talents, most part-time jobs are cleaning, packaging, service and other ordinary skills. The hourly wage is mostly based on the local minimum hourly wage or slightly higher than the standard. The employer only needs to pay the industrial injury insurance premium for the worker, and the employer does not need to pay economic compensation when the labor relationship is terminated, The advantage of lower labor cost is obvious.

Second, the form of employment is flexible. The working hours of part-time workers are short, both parties pursue short-term benefits, and are more inclined to provide labor and pay the "transactional" characteristics. The relationship between the two parties is less fettered and the degree of freedom is high. Workers can provide labor in multiple units. The unit does not have to worry about taking additional responsibilities when terminating the labor relationship.

Third, the legal regulation is loose. Fundamentally speaking, part-time and full-time employment only have a difference in the number of working hours, and there is no difference in nature, but there is a world of difference in legal regulations between the two. If part-time employment can enter into an oral agreement, both parties, especially the employer, can terminate the labor relationship at any time without any restrictions, and there is no need to pay compensation. The normative documents issued by the Ministry only require the employer to participate in work injury insurance for part-full-time workers, in terms of mandatory legal obligations, only basic rights issues such as wage payment standards and cycles are provided.

2. the Deficiency of the Current Part-time Employment System

Restrictions on (I) Part-time Employers

The "Labor Contract Law" limits the subject of part-time employment to various enterprises, state agencies, institutions and social organizations, individual industrial and commercial households, and private non-enterprise units. However, a large number of workers who provide part-time labor for their families or individuals are still not included in the scope of adjustment of the Labor contract Law and cannot be protected by the Law. This part of the part-time employment contract is still only applicable to the adjustment of the Civil Law as an equal civil relationship.

(II) the signing of part-time labor contracts

Article 69 of the "Labor Contract Law" stipulates: "The parties to part-time employment may enter into an oral agreement." It can be seen that the form of conclusion of part-time employment contracts is not uniformly required to be in written form. The aim of the legislator is to guarantee flexibility in part-time employment. In fact, there are more drawbacks to this provision. First of all, the "Labor Contract Law" does not specifically define under what circumstances it should be in written or oral form. Therefore, the choice of form can only be decided by the parties. The risk of oral contract is greater than the written contract, as a worker is bound to hope to effectively protect their legitimate rights and interests through the contract, but if the employer refuses to sign a written contract in order to avoid the risk, it does not violate the provisions of the law, which is obviously disadvantageous to protect the legitimate rights and interests of workers. Secondly, after the signing of an oral agreement, the establishment of the rights and obligations of both parties will be prone to incomplete situations, resulting in ambiguity, and the hidden dangers of labor disputes will be greater. Finally, there is no written agreement to do proof after the dispute, the interests of workers is difficult to be protected.

Termination of (III) part-time labor contracts

Article 71 of the Labor Contract Law stipulates: "Either party to part-time employment may terminate the employment at any time by notice to the other party. The employer shall not pay economic compensation to the worker for the termination of the employment." This is very different from the full-time employment contract. According to the provisions of the Labor contract Law, both parties shall terminate or terminate the labor contract in accordance with the law; the employer shall pay economic compensation in accordance with the law to terminate or terminate the labor contract. The part-time employer does not need to explain the reason, nor does it need to give advance notice, nor does it need to pay financial compensation, that is, the employer's unilateral termination right does not have any legal restrictions. This is detrimental to the livelihood of workers. At present, part-time employment has become the main way for many laid-off workers and unemployed people to seek re-employment. For such people, any job loss is a heavy blow. The casual termination of part-time labor contracts by employers will reduce the livelihood security of workers. Moreover, the low cost of terminating part-time labor relations will induce some employers to take advantage of the loopholes in the law, circumvent the strict provisions of the law on the form of full-time employment, and deliberately divide a job into multiple points to convert full-time employment into part-time employment., So as to achieve the purpose of reducing labor costs.

Social insurance for (IV) part-time workers

The Labor Contract Act makes no provision on this issue. At present, it can still be implemented with reference to Article 10-12 of the "Opinions on Several Issues Concerning Part-time Employment". Workers "should participate in basic pension insurance" and "can participate in basic medical insurance in their personal capacity". Relevant regulations pay work-related injury insurance premiums for part-time workers who establish labor relations ". The "Social Insurance Law" promulgated in 2010 stipulates that part-time employees can participate in social insurance, and individuals pay social insurance premiums in accordance with the proportion prescribed by the state. Although Article 8 of the "Opinions on Several Issues Concerning Part-time Employment" stipulates that the factors that should be considered when determining the hourly minimum wage include "the basic pension insurance premiums and basic medical insurance premiums that the unit should pay", the employer pays to part-time workers Whether the wages do include the social insurance premiums that the unit should have paid is not monitored, which provides a gap for the employer to evade its obligation to pay. Even if the salary does include this part of the insurance premium, if the worker does not pay on his own, this part of the worker cannot be protected by social insurance.

3. on the Improvement of Part-time Employment System in China

Equal protection of part-time workers in (I)

The dispatch of workers to provide part-time labor for employers, families or individuals through labor dispatch organizations established in accordance with the law shall be subject to the adjustment of the Labor contract Law. Article 2 of the "Opinions on Several Issues Concerning Part-time Employment" stipulates: "If a worker provides part-time labor to other units, families or individuals through a labor dispatch organization established in accordance with the law, the labor dispatch organization and the part-time worker Sign a labor contract." The relationship between labor dispatch organizations and part-time workers conforms to all the characteristics of labor relations. The labor relationship established between the two parties shall be subject to the relevant provisions of labor dispatch in the Labor Law and the Labor Contract Law. Adjustment. Therefore, in order to protect the rights and interests of workers employed by families or individuals, we can consider bringing all these workers into the unified management of labor dispatch organizations. It can also learn from some countries to add families and individuals to the scope of labor law. For example, the Labor Code of the Republic of Iraq provides that "employer" includes only any natural and legal person in the private sector who employs workers and is paid wages. The Rwandan Labor Code provides that a natural or legal person, public or private, is an employer when one or more workers are employed (even if they are not employed continuously). It can be seen that this part of part-time employment can be gradually incorporated into the scope of application of the Labor Law and the Labor contract Law when the conditions are ripe.

As the labor subject in the labor law, the laborer refers to the citizen who has the ability of labor rights and labor behavior, and has formed a labor legal relationship with the employer in accordance with the law. As long as they are natural persons who have reached the legal age, have the ability to work, can sign labor contracts in accordance with the law, independently pay labor and receive labor remuneration, they should all belong to the scope of labor law adjustment. College students are fully qualified as laborers. Therefore, as long as college students meet the requirements of part-time employment for no more than 24 hours a week and no more than 4 hours a day, they should be dealt with in accordance with the form of part-time employment.

Form of conclusion of (II) part-time labor contract

Compared with the "Labor Contract Law", the "Opinions on Several Issues Concerning Part-time Employment" has more specific provisions on part-time labor contracts. Article 1 "Labor contracts are generally concluded in written form, and the contract period is less than one month., An oral labor contract can be concluded with the consent of both parties, but if the laborer proposes to conclude a written labor contract, it shall be concluded in writing". Article 3 also stipulates that "the content of the labor contract shall be determined by the two parties in coordination, and shall include the five necessary provisions of working hours and duration, work content, labor remuneration, labor protection and labor conditions, but no probation period shall be agreed". Although workers are required to claim individual rights when signing contracts, it is still a more comprehensive and operational provision. The regulation of this issue should follow the provisions of the Department's regulations.

Termination Conditions and Economic Compensation of (III) Part-time Labor Contract

In legislative practice, the "Opinions on Certain Issues Concerning Part-time Employment" stipulates the termination and termination of part-time labor contracts: "The termination conditions of part-time labor contracts shall be handled in accordance with the agreement of both parties. In the labor contract, if the parties do not agree on the early notice period for the termination of the labor contract, either party may notify the other party to terminate the labor contract at any time; if the parties agree on the liability for breach of contract, they shall be liable for compensation in accordance with the agreement." From these provisions, it can be seen that the termination conditions for part-time employment contracts basically follow the principle of "agreement priority", reflecting the autonomy of both parties to the contract. Such provisions can give full play to the flexibility of part-time employment. In contrast, the provisions of the Labor contract Law are too simple, and both parties can terminate the employment at any time without any conditions and reasons. This article also violates the legislative purpose of "protecting the legitimate rights and interests of workers" in the Labor contract Law, and to a certain extent deprives workers of the opportunity to safeguard their legitimate rights and interests. Therefore, in order to adapt to the characteristics of part-time labor, the procedures for termination and termination of the contract can be appropriately simplified, but the right of dismissal protection that workers should enjoy should be reflected. The conditions for the termination of the part-time employment contract, the reasonable notice period for the termination, and the amount of economic compensation after the termination can refer to the "Opinions on Several Issues Concerning Part-time Employment" to follow the principle of "agreement priority" and allow the contract to be made Corresponding agreements.

Payment of social insurance for part-time workers in (IV)

Based on the time limit of people's labor ability and the non-renewable nature of labor consumption, the law has formulated corresponding social security measures to enable workers to "have a sense of security for the elderly and medical care for the sick". As long as the worker joins the labor process, the consumption of labor will occur and there will be labor risks. The social security benefits enjoyed by workers should not be different according to different forms of employment, and workers engaged in part-time employment and full-time employment should be treated equally. To achieve this, it is not only necessary to amend and improve the law, but more importantly, to improve the relevant supporting system. Therefore, in the laws and regulations, the employer's social insurance payment obligation is clarified, and the social security system is modified. The social insurance agency effectively provides convenient conditions for part-time workers to participate in insurance payment, and adopts flexible payment methods to ensure that workers The continuation and transfer procedures of social insurance relations and personal accounts. The "Social Insurance Law" promulgated in 2010 has already stipulated the transfer of social insurance relations for workers employed across regions. On this basis, individual accounts of social insurance funds can be established for workers, and employers that establish labor relations with workers should pay corresponding social insurance fees for workers according to the proportion of labor remuneration paid, and deposit them into the workers' individual accounts. In addition, we can learn from Japan's compulsory old-age insurance system to establish China's compulsory social insurance system. For Japanese citizens, participating in the basic pension insurance system is both a right and an obligation. According to the provisions of the National Pension Law, all people who are over 20 years old and under 60 years old living in Japan must join and enjoy the basic national pension, regardless of gender, status or occupation. China can establish compulsory savings social insurance with the accumulation of insurance reserves as the starting point. Compulsory savings social insurance requires all workers, regardless of occupation, status, working hours, geography, etc., to participate in savings social insurance and pay social insurance premiums in full and on time. The payment standard of social insurance premium shall be calculated according to the corresponding proportion of the actual wage of part-time workers.

The promulgation of the Labor contract Law is undoubtedly a sharp edge for workers to protect their legitimate rights and interests from infringement, but because of the relative principle of its provisions, there are still many specific issues that need to be further clarified. what's more, it needs to be adjusted and protected by legal means. The improvement and maturity of the part-time employment system still needs a long process, which requires us to constantly explore and study in practice, enrich and standardize the relevant systems and laws and regulations, and create a good development environment for part-time employment.

This article won the third prize of Jinan lawyer's business paper selection in 2011

References:

[1] Shang Chunxia, Part-time Employment in China from the Perspective of Labor Contract Law [J], Labor Security World, 2009 (9): 66

[2] Liu Wenhua. A Study on the Legal Issues of Part-time Labor Relations [J]. China Labor April 2004

[3] Huang Songyou, Li Jianfei. Explanation of the Provisions of the Labor Contract Law and Case Analysis [M]. Beijing: People's Court Press, 2007.

[4] Huang Kun. Research on the Subject System of Labor Law,[M], Law Press, 2008.

[5] Feng Yanjun, Wang Dandan. The Choice of Legislative Model of Part-time Employment Pension Insurance: A Comparative Perspective between China and Japan [J]. Contemporary jurisprudence. Issue 6 of 2010