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A Brief Discussion on Some Deficiencies and Perfection of Part-time Employment

Published:

2010-07-01

Abstract:The Labor Contract Law, which came into force on January 1, 2008, defines part-time employment in the form of "special provisions". This is the first time that the part-time employment system has been specially stipulated in the form of formal law after the "opinions on some issues concerning part-time employment" promulgated by the Ministry of Labor and Social Security on May 30, 2003, which is of great practical significance to the laws on social security in our country. At the same time, many places have also issued some laws and regulations on part-time employment in more detail. With the establishment and development of China's market economy, the employment situation has undergone tremendous changes, which corresponds to the diversification of forms of employment, and part-time employment is produced and developed rapidly under such a situation. The "Labor Contract Law" finally included "part-time employment" into the scope of its norms after several changes in its draft. This is the need of legislation and is also determined by the current national conditions of our country. This meets the needs of my country's economic development under certain circumstances. However, the law only stipulates a short five articles on the part-time employment system. The content of these five articles obviously needs to be continuously improved in solving practical problems. The formulation and implementation of any law can not be without omissions, especially in today's rapid development of society, various situations emerge in endlessly, and the law also needs to be continuously improved in order to adapt to the development of our society. This paper analyzes the shortcomings of the current part-time employment system, and puts forward a series of rectification plans, in order to promote the improvement of the law in this area.

Key words:Remuneration, probation period, insurance premium

The Labor Contract Law, which came into force on January 1, 2008, defines part-time employment in the form of "special provisions". This is the first time that the part-time employment system has been specially stipulated in the form of formal law after the "opinions on some issues concerning part-time employment" promulgated by the Ministry of Labor and Social Security on May 30, 2003, which is of great practical significance to the laws on social security in our country. At the same time, many places have also issued some laws and regulations on part-time employment in more detail. With the establishment and development of China's market economy, the employment situation has undergone tremendous changes, which corresponds to the diversification of forms of employment, and part-time employment is produced and developed rapidly under such a situation. The "Labor Contract Law" finally included "part-time employment" into the scope of its norms after several changes in its draft. This is the need of legislation and is also determined by the current national conditions of our country. This meets the needs of my country's economic development under certain circumstances. However, the law only stipulates a short five articles on the part-time employment system. The content of these five articles obviously needs to be continuously improved in solving practical problems. The formulation and implementation of any law can not be without omissions, especially in today's rapid development of society, various situations emerge in endlessly, and the law also needs to be continuously improved in order to adapt to the development of our society. This paper analyzes the shortcomings of the current part-time employment system, and puts forward a series of rectification plans, in order to promote the improvement of the law in this area.

Conceptual Analysis of Part-time Employment in 1.

Before talking about the deficiency and perfection of part-time employment, first of all, we should analyze the concept of part-time employment. Many of the shortcomings described below are derived from this concept, so it is necessary for us to recognize this concept and its difference with related concepts.

(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.

Comparison of Part-time Employment and Full-time Employment in (II)

In recent years, with the strategic adjustment of China's economic structure, part-time employment with hourly workers as the main form has become a main form of flexible employment and an important way to promote the integration of urban and rural employment.[1]As a flexible form of employment, part-time employment has been increasingly favored by the majority of enterprises. However, there is a big difference between part-time employment and full-time employment, such as the compulsory degree of labor contract, the working hours of workers, the way of remuneration, and the obligations of employers. Comparing the two will help us to fully grasp the part-time employment system, so as to understand its shortcomings, and then regulate it.

The difference between the two is shown in the following table:

Difference Comparison	Full-time employment	Part-time employment
Working time is different	Generally, the daily working hours shall not exceed 8 hours and the cumulative working hours per week shall not exceed 40 hours.	The average daily working hours shall not exceed 4 hours and the cumulative working hours per week shall not exceed 24 hours.
Different contract form requirements	A written labor contract must be concluded, otherwise the worker may claim double wages.	More flexible, can conclude a written labor contract, can also conclude an oral labor contract
Different remuneration methods and wage payment cycles	Monthly wages, not less than the local minimum wage	Pay on time is the main, not lower than the local minimum wage standard, the law stipulates that the wage payment cycle shall not exceed 15 days
Whether the agreed probation period is different	Probation period can be agreed	It is expressly provided that no probation period may be agreed.
Social insurance payments are different.	Employers must handle five insurances such as pension and medical care for workers in accordance with the law, which is a compulsory obligation.	The unit only needs to pay work injury insurance for the worker, and the other types of insurance are paid by the worker himself.
The termination of the labor contract is different.	It must be lifted in accordance with the law, and the employer should generally pay economic compensation to the worker.	Either party may terminate the labor contract at any time, and the employer is not required to pay economic compensation to the worker.
The requirements of the main body of the contract are different.	Workers can generally only establish labor relations with one employer.	A worker may establish a labor relationship with more than one employer
Whether labor dispatch can be applied	Can be applied to the form of labor dispatch	The form of labor dispatch shall not be applied.

From the above comparison, it can be concluded that there are many aspects of part-time employment in our country that are not as good as full-time employment. This arrangement conforms to the original intent of the legislation under certain circumstances and contributes to the progress of my country's legal system. However, with the development of China's economy, many provisions of part-time employment also show its inherent disadvantages. Below we will analyze these shortcomings and propose a series of solutions, which are expected to be further improved and improved in future legislation.

Some Inadequacies of Part-time Employment in 2.

Form of (I) part-time employment contract

Article 69 of the "Labor Contract Law" stipulates: "The parties to part-time employment may enter into an oral agreement." The legislator's aim is clearly to guarantee flexibility in part-time employment. Part-time work is a relatively flexible and simple form of employment, and the uncertainty and transiency of the contract period make workers and employers more willing to conclude contracts in the form of oral agreements.[2]This is a temporary loose policy adopted by the state to promote employment. It can adapt to small enterprises and temporary employment enterprises. However, there are still many disadvantages for large and medium-sized enterprises to adopt oral agreements in actual operation. First of all, the use of oral agreements is easy to cause injustice and even ambiguity in the distribution of rights and obligations between the two parties, with great hidden dangers. Secondly, when disputes arise, the dispute is difficult to resolve and will consume more human and financial resources because there is no written agreement as evidence. Once again, as large and medium-sized enterprises, there may be employment needs at different levels. In practice, who will represent the enterprise to negotiate with the workers and complete the oral agreement procedure, how to grasp the caliber, many problems are more difficult to solve, and it is very easy to have management confusion, internal comparisons, and corporate damage.

In addition, the "Labor Contract Law" does not stipulate the content of part-time employment contracts. The relevant content is only stipulated in the third paragraph of Article 1 of the Opinions on Several Issues of Part-time Employment issued by the Ministry of Labor and Social Security in 2003: "The content of part-time employment contracts shall be determined by both parties through negotiation, and shall include five necessary clauses: working hours and duration, work content, labor remuneration, labor protection and labor conditions, however, no probation period may be agreed." Since part-time employment contracts can be concluded by oral agreement, it makes the above content more vague. Therefore, the conclusion of the contract should be as far as possible in writing, clear working hours, labor remuneration, work content, working conditions and other aspects of the content. Workers are always in a weak position relative to employers. Considering the reality of labor surplus in our country, workers generally do not have the ability to negotiate with employers. If employers are not willing to sign written contracts, workers can do nothing. The provisions of the "Labor Contract Law" on part-time employment agreements are obviously inconsistent with the current situation of my country's labor market and the disparity between labor and management. In the event of a dispute, it is difficult to protect the interests of workers. The situation of oversupply in my country's labor market makes both employers and employees keep their own silence on this, and the final damage can only be the interests of workers.[3]

The Termination and Economic Compensation of (II) Part-time Labor Relations

Article 71 of the "Labor Contract Law" stipulates: "Either party to part-time employment may notify the other party at any time to terminate the employment. If the employment is terminated, the employer will not pay economic compensation to the employee." In other words, if the employer wants to terminate the part-time labor relationship, it does not need to give any reason, nor does it need to give advance notice, nor does it need to pay any economic compensation. It can be said that for the employer, there are no legal restrictions on the termination of the labor relationship, which makes the employer have nothing to fear, not only can terminate the contract at any time, but also do not have to pay any fees for it. As far as the current reality is concerned, some employers have changed the original full-time employment contract to a part-time employment contract, the purpose of which is obviously to better avoid responsibility. The original intention of legislators may be to promote the development of part-time employment and promote employment, but it has caused a series of hidden dangers: for workers, even part-time employment also means the source of livelihood, and even the realization of self-worth and social value. Although the law allows workers engaged in part-time employment to establish labor relations with multiple employers, in reality, every labor relationship is of great significance to workers, for example, for those students who work-study, the income from working may be their main source of livelihood.[4]Therefore, the "rice bowl" of part-time employment cannot be broken casually; for employers, constantly changing employees will increase costs on the one hand, and it is difficult for employees to have a sense of belonging to the company, which is also not conducive to the development of the company. Maintaining relatively stable labor relations is also crucial to social harmony and stability and sustainable economic development.

Regarding the question of whether to pay compensation, the second paragraph of Article 71 of the "Labor Contract Law" clearly stipulates: "If the employment is terminated, the employer shall not pay economic compensation to the laborer." From this article, it can be seen that if the two parties agree on economic compensation in the contract, there is a conflict between statutory and agreed, which will inevitably be refused by the employer in the name of the law without the need to pay economic compensation, which is obviously very unfavorable for the protection of the legitimate rights and interests of workers. However, some scholars believe that at present, most of the enterprises that use part-time employment in our country are micro and small enterprises, and the survival pressure is relatively high. If they are required to pay economic compensation, the production cost is too high, and it will be difficult to survive.[5]In fact, the current situation of enterprises using part-time workers in our country is not quite the same as pointed out above. On the contrary, in addition to some micro and small enterprises, many of them are large supermarkets, catering groups and other enterprises with strong economic strength. Compared with workers, they really have too many advantages. This provision of the "Labor Contract Law" undoubtedly once again enhances their sense of superiority and deprives workers of the opportunity to safeguard their legitimate rights and interests to a certain extent.

(III) the standard of remuneration and overtime pay for part-time workers

The first paragraph of Article 72 of the "Labor Contract Law" stipulates: "The hourly remuneration standard for part-time employment shall not be lower than the minimum hourly wage standard set by the people's government where the employer is located." However, if the labor remuneration of part-time workers is not lower than the statutory minimum standard, but it is far lower than the wage standard of full-time workers in proportion, it is obviously unreasonable to make the remuneration per unit of labor time different. In practice, employers often regard the "minimum standard" as the "universal standard". Even foreign enterprises with deep pockets rarely exceed the local minimum wage standard. Here, the law has become a "protective umbrella".[6]Article 46 of the labor law clearly stipulates that "wage distribution shall follow the principle of distribution according to work and implement equal pay for equal work". The inequality between part-time employment and full-time employment in terms of labor remuneration is not in line with the original intention of legislators. For part-time employment, only the "bottom line" of the legal minimum wage standard is not enough.

For part-time workers, overtime work is generally not allowed because working hours are strictly defined. But in special circumstances (such as holidays) do need to work overtime, how to calculate overtime pay? And for the extensive use of part-time employment in the catering industry, service industry, statutory holidays are often the most heavy work time. The former Ministry of Labor and Social Security's "Opinions on Several Issues Concerning Part-time Employment" and the current "Labor Contract Law" and its implementing regulations do not provide for overtime pay for part-time employment under such circumstances. If, in accordance with the provisions of the Labor Law, the employer has to pay twice or even three times the salary, this is obviously not acceptable to the employer, but if it pays the same salary as usual, it is unfair to the worker. This will need to be provided for in future legislation to fill the gap.

Social insurance (IV) part-time employment contract

Social insurance is the effective protection of the legitimate rights and interests of workers. In the legal provisions of social insurance for part-time employment, it is only implemented in accordance with the provisions of Article 10 to Article 12 of the Opinions on Several Issues Concerning Part-time Employment of the former Ministry of Labor and Social Security. Workers "Should participate in basic pension insurance" and "can participate in basic medical insurance in an individual capacity", the employer "shall, in accordance with the relevant provisions of the State, pay industrial injury insurance premiums for part-time workers who have established labor relations". The "Labor Contract Law" does not make any provisions on social insurance for part-time employment contracts. Due to the flexibility of part-time employment, insurance is ignored by many workers, and employers are often silent, which is obviously disadvantageous to the protection of workers' legitimate rights and interests. Although Article 8 of the Opinions 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 should be paid by the unit", some local regulations also specify that "labor remuneration includes hourly work income and laws and regulations. The social insurance premiums that should be paid", but the enforcement of these regulations is obviously too small, does the salary paid by the employer to part-time workers indeed include the social insurance premiums that the employer should have paid, and how will the monitoring be implemented? These we have no way of knowing. Even if the salary does include this part of the insurance premium, if the worker does not pay it himself, will the employer of course "exempt" the obligation to pay these social insurance premiums? These problems are clearly inconsistent with the situation of full-time employment, highlighting its unequal treatment.

Some Suggestions on 3. Part-time Employment

According to statistics, at present, more than 60 million people in cities and towns in China are engaged in various flexible employment, of which more than 2/3 are part-time. In the face of such a huge labor market, the Labor contract Law should speed up the legislative pace of part-time employment and constantly improve it to meet the needs of social development. In this regard, the author mainly for the above problems to talk about their own suggestions.

1. Part-time employment contracts should be in written form as far as possible. Since the Labor Contract Law does not specify the choice of the form of contract conclusion, the choice of form can only be decided by the parties through consultation, but from the point of view of protecting the legitimate rights and interests of workers, as long as conditions permit, the contract should be concluded in writing as far as possible. The law should also advocate that whether it is full-time labor relations or part-time labor relations, written labor contracts should be signed as far as possible to avoid lack of basis when disputes occur. Even if there is a dispute, the dispute handling agency should be inclined to the choice of the laborer, and resolve the dispute from the perspective of protecting the legitimate rights and interests of the laborer. Take a step back and look at the problem. Even if it is not mandatory to sign a written labor contract, the law should also make external provisions. For example, if a worker requires a written labor contract, a written contract should be concluded; standardize the form and content of the part-time employment contract provided by the employer; How to make a ruling that is beneficial to the worker when a dispute arises in an oral agreement.

2. The conditions for termination of part-time employment contracts shall be restricted. 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 rights of dismissal and protection that workers should enjoy should be reflected. For the termination conditions of part-time labor contracts, the termination of the contract The notice period, the economic compensation for termination and the compensation for termination of the labor contract should also make corresponding provisions.[7]The Labor Contract Law on termination conditions and economic compensation is obviously unreasonable, which needs to be revised and improved in future legislation to raise the threshold of termination conditions for part-time labor contracts. For economic compensation, it is necessary to provide for situations like full-time employment: generally, if the employer is at fault and the contract is terminated, the employee should be financially compensated. This is conducive to limiting the favorable position of enterprises, so as to truly achieve the purpose of protecting the rights and interests of workers.

3. The regulation of labor remuneration should be more scientific. In this regard, we can learn from the provisions of the German "Part-time Employment and Fixed-term Employment Law": The labor remuneration paid by the employer to the laborer engaged in part-time employment shall be converted according to the ratio of the laborer's working hours to the full-time laborer's working hours. It shall not be lower than the labor remuneration of the laborer engaged in full-time employment; the laborer engaged in the same or similar work in the same enterprise, if there are no full-time workers in the same enterprise who can be used as a reference, the full-time workers who can be used as a reference shall be determined within the scope of application of the same labor agreement or in the same industry.[8]Such a "comparative standard" is conducive to adapting to the specific conditions of different industries, enterprises, types of work, etc., in order to achieve substantial equality in wages between "part-time employment" and "full-time employment. Therefore, on the basis of adhering to the "bottom line" of the statutory minimum wage standard, the "comparative standard" should be applied in combination with the specific situation to determine the labor remuneration of workers engaged in part-time employment. As for the solution of overtime pay, from the perspective of protecting workers, it should be stipulated that both parties to the labor contract can agree in advance in the contract. If there is no agreement, it should be based on the personal wishes of the workers and combined with the overtime pay standard of local full-time workers. And other elements to be determined.

4. The social insurance system should be improved. In terms of social insurance benefits, workers engaged in part-time employment and full-time employment should be treated equally. To achieve this, we should not only revise and improve the law, but also improve the relevant supporting system.[9]It is suggested that in future legislation, specific operational provisions on this kind of social insurance should be added. For example, in terms of the payment base and payment amount, formulate flexible standards, reduce the payment base of workers under the situation of part-time employment, and participate in insurance at a lower rate. At the same time, simplify the payment procedures for the special status of workers under part-time employment; for example, the method of establishing a personal account of social insurance funds for workers can be adopted. Employers that establish labor relations with workers should pay the corresponding social insurance fees for workers according to the proportion of labor remuneration and deposit them into their personal accounts. Through these specific technical provisions, the responsibility of the employer is strengthened, and the legitimate rights and interests of workers are guaranteed. At the same time, it is necessary to strengthen the supervision of social insurance contributions in the form of part-time employment, and guide and urge employers and part-time employees to fulfill their respective responsibilities and obligations in accordance with the law.[10]

Conclusion

The promulgation of the Labor Contract Law is undoubtedly a sharp edge for workers to protect their legitimate rights and interests from infringement. However, due to the relative principle of its provisions, there are still many specific issues that need to be further clarified. This is especially true for part-time employment. Because for the economic development of our country, flexible employment is still a new thing after all, and it is still in the stage of development. Its problems will be synchronized with the development, and it needs to be adjusted and protected by legal means. Although the Labor contract Law provides basic legal protection for part-time employment, it is impossible to solve all the problems faced in practice, and there are still many imperfections in the relevant provisions, which not only harms the interests of part-time workers themselves, but also hinders the development of the whole industry. To further improve the legal provisions of part-time employment in China, we should clearly prohibit the principle of discrimination against part-time employment, prohibit employers from treating full-time workers and part-time workers unequally in terms of labor remuneration, and stipulate the special obligations of employers to part-time workers in terms of recruitment, staff training and termination of contracts, Encourage and support the development of part-time employment in legislation and judicature. Create a good development environment for part-time employment.

[1]Liu Wenhua, "Research on the Legal Issues of Part-time Labor Relations", in China Labor, No. 4, 2004.

[2]Shang Chunxia: From<劳动合同法>Looking at Part-time Employment in China, in Theory and Practice, No. 9, 2009.

[3]Pu Chunyu and Zhu Jingyan: "Defects and Perfection of Part-time Employment System", Journal of Liaoning Administration Institute, No. 12, 2009.

[4]Qian Xiaomin: "Investigation of Contemporary College Students' Working Situation and Economic and Trade in the Era of Legal Protection", March 2008.

[5]Yang Jingyu and Xin Chunying, ed. Interpretation of the People's Republic of China Labor Contract Law, China Legal Publishing House, 2007, p. 217.

[6]Wang Qian: "Defects and Perfection of Daily Employment Regulations-Taking McDonald's Low Salary Incident as an Example", Law, No. 7, 2007.

[7]Jiang Ying: On Labor Contract Law, Law Press, 2006, pp. 362-363.

[8]Wang Qian: "Defects and Perfection of Daily Employment Regulations-Taking McDonald's Low Salary Incident as an Example", Law, No. 7, 2007.

[9]Liu Wenhua, "Research on the Legal Issues of Part-time Labor Relations", in China Labor, No. 4, 2004.

[10]Jiang Ruiya: "Several Issues that Need to be Clone in the Part-time Employment System", in "Research and Exploration", Issue 12, 2009.

(This article won the third prize of Jinan excellent lawyer paper in 2010)

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