[case introduction]
Lee worked in a company in July 15, 2009, and the two sides did not sign a written labor contract. On the evening of January 18, 2010, the company arranged for Li to work until 12 o'clock that evening, and Li objected to the work until 10:30 that evening. The next day, the company believed that Lee had absenteeism for 1.5 hours. He had violated the company's labor discipline and dismissed him on the grounds of Lee's disobedience.
The court held that the employment agreement submitted by the company only stipulates the termination of salary, labor discipline and labor relations, and does not agree on the term of the contract, the time of work, the rest and vacation, and the social security. Therefore, the "employment agreement" does not fully possess the necessary elements stipulated in the seventeenth article of the labor contract law, and does not have the nature of the labor contract. It is considered that the two parties have not signed a labor contract and that the company must pay the difference of two times the wage of the labor contract to Li. After the first instance and second instance, the two sides failed to sign a labor contract, and the company needed to pay twice the wage difference.
is the employment agreement a labor contract? The necessary terms are the standard of inspection.
From the above cases, it can be seen that the employer who has not signed a written labor contract with the employees in time is very risky, so the unit should sign the labor contract with the employees in time. So what are the provisions of the labor contract? Let deep Ping for you.
1. Types of labor contracts
(1) fixed term labor contract: the labor contract stipulated by the employer and the worker for the time of termination of the contract.
(two) no fixed term labor contract: the labor contract stipulated by the employer and the worker without definite termination time can be signed by one of the following conditions:
1. the workers are working in the employing unit for ten years.
2. two fixed term labor contracts have been concluded continuously, and the laborers are law-abiding, have no disease and have no injuries due to work-related injuries, and renew their labor contracts.
3. when the employer implements the labor contract system for the first time or reorders the labor contract, the worker is working in the employer for ten years and is less than ten years from the legal retirement age.
4. if a unit fails to conclude a written labor contract with a worker for a full year, it shall be deemed to have entered into a non fixed term labor contract.
(three) a labor contract with a deadline for completion of a certain work task: a labor contract with which the employer and the laborer have agreed to the completion of a certain job as the term of the contract.
Two. The contents of the labor contract
(1) necessary terms
(1) the name, domicile, legal representative or principal person in charge of the employing unit;
(2) the name, address, identity card or other valid identity document number of the worker;
(3) the term of labor contract;
(4) the work content and place of work;
(5) working hours and rest and vacation: details of working hours are shown in table 1
below.
(6) labor remuneration: normal working time wages should not be lower than the local minimum wage standard, that is to eliminate overtime pay (the base of overtime pay must not be lower than the minimum wage standard), all kinds of allowances, legal benefits after the income.
(7) social insurance;
(8) labor protection, labor conditions and occupational hazards protection;
(9) other matters that should be included in the labor contract stipulated by laws and regulations.
2, agreed terms
(1) probation period: see the following table 2
(2) training: service period, precondition: (1) employing units to provide special service fees; (2) technical training for workers. If a worker violates the stipulations of the service period, he shall pay the penalty in accordance with the contract.
Note: pre job training is not “ professional training ”
(3) conservative secret
(3) supplementary insurance
(4) welfare treatment
Three. Suggestions for deep Ping
When employing employers to establish labor relations with their employees, they should pay attention to signing a complete formal written labor contract to avoid unnecessary risks.
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