Case Study of Labor Contract Law 3 .

This situation requires the signing of an indefinite-term employment contract, and the arbitration commission should not support it. The provision that an indefinite-term employment contract shall be concluded after the conclusion of two consecutive fixed-term employment contracts is a new addition to the Labor Contract Law, and there was no relevant legal provision before that. According to the general principle of the application of law, the new law is binding only on acts after it enters into force, unless otherwise provided for in the new law.

The provisions of the new law do not apply to the fact that Mr. Wang entered into two fixed-term labor contracts in a row and before the implementation of the Labor Contract Law.

The arbitration committee will not support it. This is because Article 17 of the Labor Law stipulates that the conclusion and modification of labor contracts shall follow the principles of equality, voluntariness and consensus, and shall not violate the provisions of laws and administrative regulations. The employment contract shall be legally binding immediately and shall be binding upon the parties, and the parties shall perform their obligations under the employment contract.

Article 26 、、、2) of the Labor Law: If a worker is incompetent for his job and is still incompetent for his job after training or job adjustment, Wang will be re-employed in February of the year. Article 14 of the Labor Contract Law provides that an indefinite-term labor contract refers to an employment contract in which the employer and the employee agree on an indefinite termination time.

The employer and the employee may enter into an indefinite-term labor contract if they reach an agreement through consultation. In any of the following circumstances, if an employee proposes or agrees to renew or conclude a labor contract, an indefinite-term labor contract shall be concluded in addition to the employee's proposal to conclude a fixed-term labor contract:

Paragraph (3) concludes two fixed-term labor contracts consecutively, and the employee does not renew the labor contract without the circumstances provided for in Article 39 and Article 40, Paragraphs 1 and 2 of this Law.

Article 40 Under any of the following circumstances, the employer may terminate the labor contract after giving 30 days' written notice to the worker or paying the worker an additional month's salary: the worker in paragraph (2) is incompetent for the job and is still incompetent for the job after training or job adjustment;

If there are clauses in the concluded contract that violate labor law, these clauses are null and void and do not affect other legal clauses. Illegal terms and circumstances include:

1.Gender discrimination, reluctance to recruit female teachers, and with the exception of a few special positions, both men and women should enjoy the same labor rights.

2.The clause in the employment contract that the termination of the employment contract is invalid if she becomes pregnant.

3.If the school does not provide evidence that the employee agrees to the adjustment, the adjustment is also invalid, and it needs to be adjusted to the original position, and 40% of the salary reduced during the period will be repaid.

4.If the school illegally terminates the labor contract, the compensation payable to the employee for the illegal termination of the labor contract should be up to three months' salary, depending on whether she has been employed for a little more than two years or more than two and a half years.

In summary, the labor contract entered into by the school violates the labor law, and the arbitration will not support it, and the school should pay back the wages during the period of pregnancy and subsequent transfer, and request to return to the original position, and if the coordination is invalid, the school insists on terminating the labor contract, and should also compensate for 3 months' salary.

1. There is a de facto labor relationship, and the employer manages and pays Zhang's attendance; It is a part-time employee, who works 4 hours a day at the newspaper office every afternoon, five days a week.

Rationale:

Labor Contract Law

Article 15 A labor contract with a term of completion of a certain task refers to a labor contract in which the employer and the employee agree that the completion of a certain work is the term of the contract.

2. Whether Zhang's request can be supported depends on whether the major mistakes occur and whether the circumstances of serious violations of the unit's rules and regulations are reached. If it is reached, it will not be supported, and if it is not, it will be supported.

Rationale:

Labor Contract Law

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

3. The employer has the right to terminate the labor contract; If Li is pregnant, the employer can still terminate the labor contract; The employer may require Mr. Li to bear the corresponding losses.

Rationale:

Labor Contract Law

Article 26 The following labor contracts are invalid or partially invalid:

(1) Using fraud, coercion or taking advantage of the danger of others to cause the other party to conclude or modify a labor contract contrary to its true intentions;

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

Article 86 Where a labor contract is confirmed to be invalid in accordance with the provisions of Article 26 of this Law and causes damage to the other party, the party at fault shall be liable for compensation.

4. The labor contract between Huang and the original enterprise has not been terminated; The joint venture should be jointly and severally liable in this case.

Rationale:

Labor Contract Law

Article 37 A worker may terminate a labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.

Article 91 Where an employer recruits a worker whose labor contract has not been dissolved or terminated by another employer, and causes losses to the other employer, it shall be jointly and severally liable for compensation.

Questions 5-8 belong to the discussion and brief description, which is beyond the scope of case analysis, and will not be answered here, please ask another question!

(1) Is there an employment relationship between Zhang and a newspaper? Why? If it is an employment relationship, is it a full-time or part-time employment relationship? Why? (2) Can Zhang's arbitration claim be upheld? Why?

There is an employment relationship. Because the newspaper paid Zhang's salary, the law did not stipulate full-time or half-day work, only temporary workers and regular workers.

Zhang's request could be upheld because Zhang had an employment relationship with the newspaper.

1) Does the company have the right to terminate Mr. Li's labor contract? Why? (2) If Li is pregnant at this time, does the company still have the right to terminate the contract? On what basis? (3) Does the company have the right to require Li to bear the corresponding losses? 

The company has the right to terminate the contract. Because Li's deception was illegal.

Li's pregnancy does not affect the termination of the contract, and the reasons are as above.

The company may require Mr. Li to bear the corresponding losses.

Has Huang's labor contract with the original enterprise been terminated? 2.Is the joint venture liable in this case?

5. Discuss the termination of labor contracts.

6. Briefly describe the differences between labor contracts and labor contracts, labor contracts and employment contracts.

7. Discuss the content of the labor contract.

8. Briefly describe the general principles of wage payment.

1. If there is no termination, the termination of the contract must be in writing.

If it is to dig talents, take responsibility, if not, there is no need.

For the termination of the employment contract, please refer to the relevant provisions of the Labor Law.

The difference between an employment contract and a labor contract is dispatch and non-dispatch, and the difference between an employment contract is the length of time and the type of work.

The content of the employment contract is the relationship between the rights and obligations of both parties and the resolution of disputes.

The principle of wage payment is generally based on more work, less work, and no work.

Here are a few points:

1. Whether the enterprise, as an employing unit, has the right to impose economic penalties.

During the implementation period of the "Regulations on Rewards and Punishments for Employees of Enterprises", the state adopted the regulations to make it clear"Give"The enterprise has the right to economic punishment and administrative punishment, and acts such as tardiness and absenteeism can be punished financially, and administrative penalties such as warnings, demerits, and dismissal can also be given;

The state has long realized that it is inappropriate to "give" an enterprise the right to impose financial penalties, because the enterprise is not the state's law enforcement agency and has no financial penalties. Therefore, on January 15, 2008, the regulations were repealed and replaced by labor laws and regulations such as the Labor Law and the Labor Contract Law to regulate the behavior of enterprises and employees. Labor-related laws and regulations do not give enterprises the right to impose economic penalties, and all economic penalties imposed by enterprises are illegal and have no legal basis.

2. Liquidated damages.

The Labor Law and the Labor Contract Law clearly stipulate that except for two circumstances in which liquidated damages can be agreed, all other provisions on liquidated damages are invalid clauses and are illegal.

These two situations are: special skills training and non-competition agreement in the same industry. That is, the unit provides special skills training for employees, and if the training agreement is signed, the service period can be agreed in the training agreement, and liquidated damages can be charged for breach of contract, and the liquidated damages shall not be greater than the training fee, and shall be converted into years.

At the same time, the employer shall pay a confidentiality fee, stipulating that the employee shall not look for a job in a competitor in the same industry within the specified time, otherwise he can claim liquidated damages.

Except for these two cases, all other liquidated damages are illegal.

The enlightenment is to carefully study the relevant laws and regulations of labor, otherwise there will be a situation of indifference.

The deducted wages can be claimed back, and the liquidated damages are not ignored, and the resignation on this ground can also claim economic compensation.

For specific questions, you can consult and complain to the local 12333 labor and personnel social security.

Why do you need to write this case, if you study law should not be difficult, I am too lazy to type, you can think about it again.