We Can Adjust The Posts And Adjust The "Tune".

The 2017 annual meeting of the Beijing labor and social security law society and its member representative conference were held in Beijing.

The annual meeting discussed the current hot issues in the field of labor disputes. Among them, whether employers have the right to pay attention to workers on the one hand is most concerned.

Shen Jianfeng, an associate professor of China Institute of Industrial Relations, told the workers' daily that the content of the work is one of the essential clauses of the labor contract, and the change is the change of the content of the labor contract.

In the judicial practice, the common cases of post adjustment mainly include three kinds of situations, such as workers' illness or non public injury, the inability to engage in the original work at the end of the medical treatment, the incompetence of the workers, and the change of the objective situation resulting in the failure of the labor contract to fulfill. The legal basis is reflected in the provisions of the fortieth labor contract law that the employer can terminate the labor contract with the workers.

Li Jun, vice president of the six court of the first intermediate people's Court of Beijing, believes that in recent years, employers have unilaterally adjusted their jobs, and workers refuse to adjust.

Whether the employer has the right to adjust the work position of the workers, what is the basis of the legitimacy and rationality of the adjustment, and becomes the focus of this kind of labor dispute.

In this regard, Wang Dan, a lawyer of Kyoto law office in Beijing, said that the right of the employer to unilaterally adjust posts or to exercise the right of unilaterally adjusting posts in what circumstances and scope is essentially

The issue of how to balance the right of business autonomy and the right of employment stability for workers.

"Last year, we organized a research group on this issue. The research team found that the judicial practice field mostly adopted the objective criteria for the reasonableness judgment of the employer's job placement, that is, whether the employer has the objective conditions of adjusting posts, such as enterprise migration, industry shrinkage or even loss.

On the subjective side, whether the employing unit constitutes malicious retaliation is also a consideration.

However, because of the discretion of the referee and the form of case representation, it is impossible to form a unified standard.

Li Jun said.

Reporters learned from the annual meeting that the Beijing Municipal High Court and the Beijing Arbitration Commission recently issued a summary of the Symposium on the application of law on labor disputes (three) (Draft).

Where there is no job appointment in the labor contract, the employing unit shall, on the basis of legitimate reasons, adjust the work position of the laborers to the employing units according to the needs of production and operation.

Behavior.

The draft also points out that when a labor contract signed between the employer and the laborer clearly stipulates the work position, when the objective situation of the employer's production and operation has not changed significantly, the employer should adjust the work position of the employee to a breach of contract and cause losses to the worker. The employer should make compensation.

In this regard, Wang Dan lawyer told reporters that from the "draft" can be seen that employers based on production and operation and enterprise management needs, can be adjusted to the posts of workers.

However, in order to prevent employers from abusing this right, the solicitation paper has limited the right to unilaterally adjust the posts of employers.

However, the reporter noted that the draft did not give specific explanations to the specific contents of "changes in production and operation".

In this regard, Li Jun told reporters that the Beijing Municipal Intermediate hospital's research group put forward corresponding legislative proposals through in-depth research.

In the process of labor contract fulfillment, there will inevitably be the loss of jobs. In the following two cases, it is reasonable for the employers to have a reasonable basis for adjusting their salaries and salaries to the workers. First, the production and operation of the employers are affected by the macroeconomic situation, the adjustment of industrial structure, the orientation of the state policies, and so on. The two is the adjustment of the enterprises independently based on their own development needs, which mainly refers to the merger and withdrawal of the enterprises caused by the merger or reorganization of the enterprises, the withdrawal of the work departments, and the cancellation of relevant posts.

In addition, the research team also suggested that if the labor contract stipulate that the employer can adjust the work position of the workers according to the changes in the production and operation of the enterprises, the reasonable judgement of the employing units in adjusting posts for the workers can be considered from the following aspects: first, whether there is the necessity of adjusting the posts, that is, the employer should provide evidence to prove the changes in the production and operation status of the enterprises; two, the adjustment of the post of workers is not aimed at a specific worker, but the whole unit.

The adjustment is caused by a considerable scale adjustment; three, the adjustment of the position of workers by the employing units has not caused very obvious inconveniences to the workers, including the treatment of workers, duties, the matching degree of new posts and laborers' abilities, etc.

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