Are the rules and regulations formulated and publicized by democratic procedures necessarily lawful and effective? Deep Ping practice tells you: not necessarily!
The rules and regulations are not legal enough, and we need to check whether their contents are legal and reasonable. What relief measures do we have to face unreasonable rules and regulations?
At present, in the judicial practice, judging whether the rules and regulations can be used as the basis for the trial of labor disputes, the first question is to examine the legal formulation of the rules and regulations, that is, the legal procedure. The review of the legitimacy of the program is detailed in the last chapter. The rules and regulations should also ensure that the content is legal, and the mandatory provisions of the laws and regulations shall not be violated, such as the minimum wage standard, the rest and vacation regulations, the salary distribution and the protection of the labor safety and health.
1. Review of legality
The contents of the rules and regulations shall not be in violation of the provisions of national laws, administrative regulations and policies. This is the minimum requirement for the formulation of labor rules and regulations, otherwise the application should be invalid and cannot be used as the basis for the management of employees. For example, in the rules and regulations of enterprises in Shenzhen, the 98 days of maternity leave are clearly violated by the regulations on population and family planning in Guangdong province and the provisions of the "special provisions for labor protection of women workers" in Guangdong province.
Two. Review of reasonableness
The criteria for the examination of the rationality of the rules and regulations are different from the actual situation of the different employing units, and Shen Ping believes that the following aspects should be paid attention to the reasonableness examination of the rules and regulations of the employer.
1, the contents of the rules and regulations shall not violate the principle of honesty and credit, and should conform to the basic principles of public order and good customs, such as the provision of no love during the service (may also be worried about the influence of marriage and children), which is obviously unreasonable and not supported.
2, respect the general public awareness and the general moral concept of the society to ensure its rationality, such as the provision of immediate expulsion of spitting, obviously too harsh, not recognized;
Three. The unlawful and unreasonable remedies of the rules and regulations
How does the rules and regulations be unlawfully remedied? There are two means of relief for administration and judicature.
1, in administrative relief, if the unit rules and regulations are illegal, the labor administrative department shall have the power to make corrections and punish them according to law.
2, the judicial relief way, the illegal rules and regulations, the court or the arbitration department can not serve as the basis for trying labor dispute cases. At the same time, employees can also release labor contracts on the grounds of violation of laws and regulations and damage to the rights and interests of workers, and require units to pay economic compensation. In addition, the trade union has the right of supervision. If it is considered that the contents of the enterprise rules and regulations violate the law, it may make suggestions to the enterprise for amendment.
To sum up, employers should pay attention to the risks caused by illegality and illegality of rules and regulations, and reduce and avoid unnecessary labor costs. In practice, the employer should scientifically design the relevant system of each link.
Guangdong deep Ping law firm
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