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劳动合同制度是企业进行人力资源管理的基础，《劳动合同法》的出台，一方面有利于建立既有稳定性又有流动性的劳动关系；另一方面，必将对用人单位的人力资源产生深远的影响。对《劳动合同法》中与人力资源管理相关的几个方面的重点内容进行深入分析，以期用人单位能够提高法律意识，提升员工关系管理水平，避免劳资冲突，构建和谐劳动关系，从而实现人力资源的优化配置。
本文主要从研究《劳动合同法》对企业人力资源管理的重要性；与企业人力资源相关的《劳动合同法》内容；《劳动合同法》对企业人力资源管理的影响以及有效利用《劳动合同法》对企业人力资源管理影响的措施等这四个方面，阐述《劳动合同法》对企业人力资源管理的影响。在以知识、技术、信息为关键要素的现代经济条件下,企业组织开始表现出一些新的特征,人力资源成为企业的关键资源,人力资源的管理部门也将成为企业的核心部门。
Abstract：
The labor contract system is the enterprise of human resource management foundation, "Labor Contract Law" promulgated, on the one hand, there is conducive to the establishment of mobility of both the stability of labor relations; On the other hand, the employer is bound to produce the human resources far-reaching implications. On the "Labor Contract Law" and human resource management focus on several aspects related to the contents of in-depth analysis with a view to employing units to improve the legal awareness, enhance employee relations management level, to avoid labor conflicts and building a harmonious labor relations and human resources to achieve the optimal allocation.
In this paper, from studies the "Labor Contract Law" on the importance of Human Resource Management; And corporate human resources-related "Labor Contract Law" content ; The "Labor Contract Law" on the impact of enterprise human resource management and effective use of the "Labor Contract Law" on the impact of enterprise human resource management measures four aspects of the "Labor Contract Law" on enterprise human resource management. In a knowledge, technology and information as the key elements of modern economic conditions, business organizations have begun to show some new features, human resources has become a key enterprise resources, human resources management departments will become the company's core sector.
Key words：The labor contract law；Labor relations；Human resources management
Introduction
With the advent of the era of knowledge economy, communications, technical updates faster and more advanced way of financing, diversification, makes the competition between enterprises run by the product competition to the competition for capital operation, development gradually to the competition for intellectual capital management. "Labor contract law", the unit of choose and employ persons of the human resource management will face a transformative challenges and tests, the traditional human resource management and comprehensive management pattern, would be far-reaching influence; Labor relations will be more complex, labor conflicts of interest will be more apparent, the consciousness of laborer will increase significantly. Therefore, as soon as possible, adjust or change the enterprise human resource management mode and improve enterprise high-level labor dispute prevention skills, will be the priority of enterprise human resources management work and top priority.
In the 1980 s, the human resources management theory in the western advanced enterprise management thought, scores gradually take root in China. Domestic scholars and industry for decades of screening, and localization of interpretation, has now become increasingly perfect and mature. But as the change of China's economic development environment condition, a new, intended to regulate the enterprise project management of the "labor contract law" came into being. The impact on the enterprise is a comprehensive range of new labor law, but the first is the enterprise human resource management. Enterprise operators and managers, especially human resources (HR) management workers faced with unprecedented challenges and new strategic opportunities. And correctly understand and digest the "labor contract law" as soon as possible to the enterprise human resources management, should be the first step.
The "labor contract law" on the importance of enterprise human resources management
Labor contract is laborer and unit of choose and employ persons to establish labor relations, clear mutual rights and obligations of the agreement, it is established between unit of choose and employ persons and laborer labor relationship certificate. In the legislation of labor contract, too much emphasis on protection of rights and interests of workers, and will dramatically increase the labor costs of labor, can cause negative effect on investment environment, is extremely disadvantageous to the development of unit of choose and employ persons. However, if the emphasis on the interests of unit of choose and employ persons, has violated the labor contract law of the purpose and meaning. Labour contract law is to protect the lawful rights and interests of the laborer and unit of choose and employ persons both, is to find a balance point between the two. Only the relationship between the unit of choose and employ persons and laborer harmony, to protect the interests of the workers at the same time create a good social environment for investment and enterprise development.
(a) the importance of personnel hiring and firing work
"Labor contract law" the promulgation and implementation of, make the enterprise for a long time regardless of the cost of recruitment and use of the practice of staff will be preferable.
1, must be careful in hiring a probation period
Probation period for a long time, many companies abuse of new staff, on the one hand, the five new employees probation to extend, on the other hand, too much to drive down the probation employee pay pay, or even take a probation period "zero wage" extreme practices press new employees. With the implementation of the "labor contract law", the practice will be deemed to be illegal.
First of all, the "labor contract law" to the new employees' probation period according to the different situation made specific provision. According to the provisions of article 19 of this law, the labor contract is over three months less than a year, the probation period shall not exceed one month; Labor contract is above one year less than three years, the probation period shall not exceed two months; Less than three years but not more than fixed time limit and non-fixed term labor contract, the probation period shall not exceed six months. Moreover, the same unit of choose and employ persons and laborer may stipulate only one probation period. To accomplish certain tasks for the term of the labor contract or labor contract deadline less than three months, may not stipulate a probation period. The probation period is included in the labor contract period. Labor contract only agree probation, the probation period, the deadline for the labor contract deadline. Thus, required to be in a relatively short period of time when hiring determine whether probation employee is what companies need employees. That is to say, just before the trial and the trial, using scientific means and methods to review the quality judgement of object, to enhance the efficiency of human resources recruitment and trial, choose the appropriate staff configuration to a suitable position.
Secondly, on the lower limit of probation employee pay pay clear restrictions. According to "labor contract law" the provisions of article 20 of the laborer salary during the probation period shall not be less than the unit of the same post the lowest wages or eighty percent of the labor contract salary, and shall not be less than the employing unit seat of minimum wage standard.
2, to do well the staff hiring and firing of cost accounting
"Labor contract law" to the economy of unit of choose and employ persons remove labor contract with laborer compensation gave a more clearly defined. Article 46 the provisions of, any of the following circumstances, the employing unit shall pay economic compensation to the employee: (1) the employee to terminate an employment contract in accordance with the provisions of article 38 of this law; (2) the employer in accordance with article 36 of the employee terminate the labor contract and agreement terminate the labor contract with laborer; (3) the employer terminate the labor contract in accordance with the stipulations of article 40 of this law; (4) according to the provisions of paragraph 1 of article 41 of unit of choose and employ persons remove labor contract; (5) in addition to unit of choose and employ persons to maintain or improve the condition of labor contract renew the labor contract, laborer does not agree to renew the situation, according to the provisions of paragraph 1 of article 44 of the termination of the fixed term labor contract; (6) in accordance with the provisions in item 4 of article 44, the fifth paragraph terminate labor contract; (7) other circumstances stipulated by laws and administrative regulations. Article 47 the further regulation, economic compensation according to the fixed number of year of the laborer to work in this unit, per year to pay a monthly salary standard pay to the employee. More than six months less than a year, press computation of a year; Less than six months, pay half a monthly salary of economic compensation to the employee. #p#分页标题#e#
As a result, some enterprises in our country, especially in the pearl river delta region of many enterprises, long-term formed under the high staff turnover rate of human resources management model will not be able to adapt to the new requirements, adolescence not only menopause labor practices will be contrary to the provisions of the "labor contract law". That is to say, if the employee and enterprise established after the formal labor relations, enterprise and feel in the employees do not conform to the requirements of the enterprise development, hope to lay off workers, so companies have to bear the responsibility of economic compensation.
3, the difficulty of job cuts to make plans, strive to achieve the optimal allocation of human resources
The "labor contract law" user unit constrained layoffs. Unit of choose and employ persons already cannot fire workers at will as in the past; Determine the dismissed objects cannot be completely up to unit of choose and employ persons, must be under the condition of the law in accordance with the prescribed procedures determine the object of job losses and cuts, while minimizing the massive layoffs. "Labor contract law" article 41 and article 42 of the layoffs and fire to unit of choose and employ persons laborer is compared with situation of clear rules and restrictions.
(2) strengthen the enterprise to attract talents becomes the key to any people
A feature of the "labor contract law", is to give the laborer whether to continue to perform the labor contract more discretion.
1, laborer autonomous decided to terminate the labor contract laws
First of all, the time of laborer voluntarily terminate the labor contract made specific provision. "Labor contract law" article 37 of the regulation, the laborer 30 days in advance, a written notice to the employing unit may terminate the labor contract. The laborer during the probation period for three days in advance notice to the employing unit, may terminate the labor contract.
Second, the conditions of laborer voluntarily terminate the labor contract made specific provision. "Labor contract law" article 38 of this law, unit of choose and employ persons in any of the following circumstances, the laborer may terminate the labor contract: (1) according to the labor contract to provide labor protection or work conditions; (2) not timely pay the labor remuneration; (3) not for worker pay society insurance premium in accordance with the law; (4) the employer's rules and regulations, in violation of the provisions of the laws and regulations, and damage the interest of workers; (5) because of the situations referred to in paragraph 1 of article 26 of this law the labor contract is invalid; (6) laws and administrative rules and regulations the laborer may terminate the labor contract of other cases. Unit of choose and employ persons by violence, threat or illegal restriction of personal freedom means of forced laborer to work, or unit of choose and employ persons illegally order and force on the endanger his personal safety, laborer can immediately remove labor contract, do not need to inform the employer in advance.
Finally, the laborer to remove with the original unit of choose and employ persons labor contract specifies some restrictive conditions. Such as:
(1) about whether workers remove labor contract need to pay liquidated damages to the employer. According to "labor contract law" the provisions of article 22, unit of choose and employ persons provide special training for workers, professional technical training, can be agreement with the laborer, as agreed upon in the service period. The employee breaches the agreement on the term of service period, it shall pay liquidated damages to the employer in accordance with the contract. The amount of liquidated damages shall not exceed the training expenses of unit of choose and employ persons to provide. Employer requires the employee to pay liquidated damages shall not exceed the unperformed portion of the training expenses. Unit of choose and employ persons and laborer service period, does not affect, in accordance with the normal wage adjustment mechanism for improvement of the laborer during the service period of the labor remuneration.
(2) the confidentiality of laborer after revocation of Labour contracts. According to the provisions of article 23 of the "labor contract law, unit of choose and employ persons and laborer may be agreed in the labor contract the employer's business secrets and intellectual property rights related confidential matters. To the laborers with a confidentiality obligation, unit of choose and employ persons in the labor contract or confidentiality agreement with the laborer non-compete clauses, and after remove or terminate the labor contract agreement, within the time limit for the period of a non-compete monthly provide labourers with economic compensations. Laborer violates non-compete agreement, it shall pay liquidated damages to the employer in accordance with the contract.
(3) has been clear about the non-compete provisions after the laborer remove labor contract. "Labor contract law" to the laborer and the original unit of choose and employ persons remove labor contract after the non-compete compared detailed provisions, including the determination of competitive industry personnel, non-compete geographic scope, the duration of the non-compete provisions and related conditions. According to "labor contract law" the provisions of article 24 of the personnel subject to competition restrictions shall be limited to the employer's senior management, senior technicians and other personnel with a confidentiality obligation. The non-compete scope, region, period, by unit of choose and employ persons and laborer, non-compete agreement shall not violate the laws and regulations. After remove or terminate the labor contract, the provisions in the preceding paragraph to production or operation of similar products with this unit, engaged in the same competitive relationship of other unit of choose and employ persons, or his own practice production or operation of similar products, engaged in similar non-competition period, shall not exceed two years.
2, the enhancement enterprise attraction is the key to the retention of talent
"Labor contract law to give workers in accordance with the relevant provisions of autonomous decided to terminate the labor contract the rights and interests, this is a big step forward, but it also determines the enterprise retention of pressure, a greater risk of choose and employ persons. Core staff and how to attract key employees, become the key problems of enterprise human resources management under the new situation.
The enterprise human resources related content of the "labor contract law"
(1) to guide long-term or non-fixed term labor contract
"Labor contract law" article 14 "non-fixed term labor contract, it is to point to unit of choose and employ persons and laborer a definite time to terminate the labor contract. Time to unit of choose and employ persons and laborer upon reaching a negotiated consensus may conclude a non-fixed term labor contract. Any of the following circumstances, the laborer proposes or agrees to renew it, the labor contract, in addition to the laborer puts forward fixed term labor contract, non-fixed term labor contract shall be concluded:
First, the workers in the unit of choose and employ persons work for ten years in a row;
Second, unit of choose and employ persons is the first time the labor contract system or the state-owned enterprise restructuring to conclude a labor contract, workers in the unit of choose and employ persons work for ten years in a row and the statutory retirement age is less than 10 years;
Third, secondary fixed term labor contract in a row, and workers have no article 39 and article 40 of this law, paragraphs 1 and 2 of the regulations, renew the labor contract.
Unit of choose and employ persons from the date of accepting a full year not to enter into a written labor contract with laborer, unit of choose and employ persons and laborer shall be deemed to have concluded non-fixed term labor contract.
"Labor contract law" the continuation of the "labor law" provisions on labor contract deadline classification, divided into fixed term labor contract labor contract stipulated time, non-fixed term labor contract, to complete certain tasks for the period of labor contract three types; And unit of choose and employ persons and worker both sides talks things over consistent, can be any type of labor contract. In order to solve the problem of labor contract a lot, and guide unit of choose and employ persons and laborer longer term fixed term labor contract and non-fixed term labor contract, labor contract law has been clear about the unit of choose and employ persons and employee should sign non-fixed term labor contract. The new regulations in the "labor law" in respect of the provision of the non-fixed term labor contract on the basis of expand the scope of no fixed term labor contract. Cancelled, for example, "agreed to extend the current labor law, instead of just in the same unit work for ten consecutive years, employees can put forward the non-fixed term labor contract, the other added two new must sign non-fixed term labor contract, and specify the unit of choose and employ persons in violation of the provisions of the legal responsibility. #p#分页标题#e#
Although there are still a lot of unit of choose and employ persons to non-fixed term labor contract and the terms have the heart of fear, but in fact, non-fixed term labor contract is not cannot remove labor contract. Remove from the legal conditions of said, unit of choose and employ persons remove non-fixed term labor contract with remove in fact have a fixed term labor contract is the same. Neither removes what deadline labor contract, ask us to unit of choose and employ persons shall establish and perfect a set of specifications, complete rules and regulations, and to construct the rational and scientific work appraisal system and so on. From the point of long-term development of unit of choose and employ persons, non-fixed term labor contract if used correctly, can bring to unit of choose and employ persons to attract talents, retain talent, motivate staff, improve team cohesion and overall evaluation, the author thinks that, non-fixed term labor contract with unit of choose and employ persons the benefits outweigh the risks.
(2) the non-compete and confidentiality clause "autonomy"
According to "labor contract law" article 23, "agreed upon in the labor contract by unit of choose and employ persons and laborer can keep the employer's business secrets and intellectual property rights related confidential matters. The confidentiality obligation laborer, unit of choose and employ persons in the labor contract or confidentiality agreement with the laborer non-compete clauses, and after remove or terminate the labor contract agreement, within the time limit for the period of a non-compete provide labourers with economic compensations monthly. Laborer violates non-compete agreement, it shall pay liquidated damages to the employer in accordance with the contract".
Article 24: "the personnel subject to competition restrictions shall be limited to the employer's senior management, senior technicians and other personnel with a confidentiality obligation. The scope of the non-compete, geographic area, deadline by unit of choose and employ persons and laborer, non-compete agreement shall not violate the provisions of laws and regulations. After remove or terminate the labor contract, the provisions in the preceding paragraph to production or operation of similar products with this unit, engaged in the same competitive relationship of other unit of choose and employ persons, or his own practice production or operation of similar products, engaged in similar non-competition period, shall not exceed two years."
Confidentiality and non-competition clause is an important means of unit of choose and employ persons is used to protect trade secrets. Compared with the existing rules, which the main change is: 1, the longest maturity of a non-compete from three years to two years; 2, has been clear about the economic compensation payment time subject to competition restrictions shall be after the remove or terminate the labor contract, and shall be within the time limit for the period of a non-compete pays by the month. 3, clear the standard of the non-compete economic compensation and liquidated damages according to the two sides agreed to perform.
The above terms and conditions of non-compete made specific provision, a more clear and reasonable, on both sides of unit of choose and employ persons and employee will play a dual role of restriction and protection.
(3) the employer unilaterally terminate the labor contract will have more legal conditions
"Labor contract law" to the enterprise employs workers made some procedural rules, these rules are the past in the absence of provisions in labor law and labor policy, of labor contract text content also made some new rules. If the enterprise did not in strict accordance with the "labor contract law" provisions of these procedures and content requirements, may produce the legal consequences such as "fraud" or contract shall be invalid.
Since the "labor contract law" regulation, unit of choose and employ persons labor's employment relationship with a employee is established on the date when establishing labor relationship, a written employment contract shall be concluded: "the employer shall keep a register of employees, for reference purposes. "When hiring a employee, the employer shall truthfully inform the workers working content, working conditions, working place, occupational hazards, production safety conditions, labor compensation, and other information workers awareness level, unit of choose and employ persons shall have the right to learn the basic information of laborer is directly related to the labor contract, laborer shall truthfully explain". "When hiring a laborer, unit of choose and employ persons may not retain the employee's resident id card or other certificates, shall not require workers to provide security or collect property from him in the name of the other". These regulations need to enterprise human resource management department must give good action, completes the paperwork for later check. Otherwise, in the event of dispute the enterprise will be in evidence adverse circumstances.
"Labor contract law on the legal provisions of the labor contract text and agreed terms also made some new rules: cancelled in legal terms are specified in the labor code" labor discipline "and" the termination of the contract "of content; Except the special provisions shall not agree to the worker "liability for breach of contract"; In the labor contract must be clear "wage" and "location" and so on. Neglect the detail can lead to invalid labor contract, increased the risk of enterprise human resources management. Mentioned in article 25 of the labor contract law: "with the exception of the circumstances specified in article 22 and 23 of this law, the employer may not stipulate with a employee provisions on the bearing of liquidated damages by the employee." While the article 37 of the regulations, "the laborer 30 days in advance, a written notice to the employing unit may terminate the labor contract. The laborer during the probation period for three days in advance notice to the employing unit, may terminate the labor contract." In accordance with the provisions of the labor contract law of the two is actually gives employees' right to freedom of resignation ": workers as long as 30 days in advance to inform the enterprise may terminate the labor contract, and does not assume the losses to the enterprise economic responsibility of breach of contract. Thus, the enterprise human resources management must be from the perspective of humanistic care to build strategy and tactics of the core staff.
(4) remove labor contract or terminate economic compensation overall cost increase
Article 46 of the "labor contract law" regulation: "any of the following circumstances, the employing unit shall pay economic compensation to the employee:
Workers in accordance with the provisions of article 38 of this law terminate the labor contract; According to the provisions of article 36 of unit of choose and employ persons laborer puts forward to remove labor contract and agreement terminate the labor contract with laborer; Unit of choose and employ persons remove labor contract according to the provisions of article 40; Unit of choose and employ persons remove labor contract according to the provisions of paragraph 1 of article 41 of the; In addition to unit of choose and employ persons to maintain or improve the condition of labor contract renew the labor contract, laborer does not agree to renew the situation, according to the provisions of paragraph 1 of article 44 of the termination of the fixed term labor contract; In accordance with the provisions in item 4 of article 44, the fifth paragraph terminate labor contract; Other circumstances stipulated by laws and administrative regulations.
Article 47: "economic compensation in accordance with the fixed number of year of the laborer to work in this unit, per year to pay a monthly wages standard pay to the employee. More than six months less than a year, calculated on a year, less than six months, pay half a monthly salary of economic compensation to the employee.
Laborer salary higher than the unit of choose and employ persons in municipalities directly under the central government announced, divided into districts, municipal people's government of the region as three year worker is mean monthly salary, pay the economic compensation standard according to the worker is mean monthly salary is three times the amount of payment, pay the economic compensation of highest do not exceed 12 years.
In this article, the term "monthly wages is to show laborer is in the 12 months prior to the remove or terminate the labor contract of average wage. "
Through consultation in accordance with the current law, unit of choose and employ persons and laborer to terminate the labor contract, a written notice to the laborer 30 days in advance to discharge the labor contract, terminate the labor contract with laborer due to staff reduction, economic compensation shall, in accordance with the relevant provisions of the state. "Labor contract law" in the continuation of the above regulations at the same time, when remove and terminate the labor contract to unit of choose and employ persons to pay economic compensation to make up some new rules. Overall, increased the basic unit of choose and employ persons remove or terminate labor contract with employees in economic compensation costs. #p#分页标题#e#
Under the current "labor law" regulation, only remove labor contract, to pay compensation. While the nature of labor contract termination pay no compensation (individual regions must pay living allowance or compensation). Labor contract a lot at the moment, the main is unit of choose and employ persons as much as possible in order to reduce firing costs, shorten the contract deadline due to the natural end, avoid remove labor contract pay economic compensation to employees. Article 46, therefore, the first item (5) to do the corresponding provisions. Rationality at the same time, the individual thinks, from the point of view, the expiration of the contract or any other circumstances terminate labor contract, unit of choose and employ persons need to pay economic compensation, according to the length of service to employees on employees' length of service to unit of choose and employ persons as a kind of praise and encouragement, and also can understand.
In addition, in the calculation of economic compensation standards, article 47 distinguishes between high-end workers and general workers. Two high qualified for high earners, a qualified is mean monthly salary standard, another is the limit of the total amount of economic compensation. Distinguish the high-end workers and general workers, two kinds of economic compensation, manifests the labor contract law for the average worker of slope protection, avoid the excessive disparity appears on the economic compensation standard, stop or remove labor contract to unit of choose and employ persons also made appropriate balance compensation costs.
The influence of the "labor contract law" to the enterprise human resources
(1) "labor contract law" the multi-dimensional impact on enterprise resources
From the horizontal, the connection between the human resource department and other departments to strengthen. Past enterprise by regarding the human resources department in each work just as the responsibility of the human resources department, such as recruitment, performance appraisal and other departments of the important things to the human resources department to do, even to participate in and cooperate with the surface usually just do or perfunctory. However, after the issue of labor contract law, enterprise can't easily choose and employ persons, dismiss an employee is no longer what it used to be easy, so this had to cause the attention of departments, strengthen their contact with the human resources. In this way, carry out all work is beneficial to the human resources department, enhancing its influence in the enterprise lateral, and to reduce the the responsibility of the it, can't again into a "dummy eat rhizoma coptidis, have bitterness could not say" embarrassment.
From the vertical, the human resources department's strategic position on the rise. Enterprises have put forward the human resources department to become strategic partners, but lack of impetus, and the policy of "labor contract law" can be said to be the role for the human resources department strategic cooperation partners transfer has a substantial effect. Enterprise to lower labor costs for the developing mode of the basic means of competition to build a harmonious labor relation, improve the innovative capability of enterprise development mode, the corresponding human resources strategy will change accordingly, because human resources strategy is to support corporate strategy. In the past in many enterprises, the human resources department is marginalized.
The human resource department should strengthen the construction of enterprise culture. Enterprises still exist with penalty due to breach of contract in the past to retention method, and the implementation of the "labor contract law" to the free flow of talent is absolutely right, leave a person must change the way to keep the core talents. Penalty due to breach of contract of an alternative way of thinking is to require companies to enhance corporate culture, want to rely on, by career advancement opportunities, in the interests of their employees, to employees as capital rather than the cost of enterprise, to protect the rights and interests of laborers as its important task, have the moral sense, being a good corporate to assume social responsibility.
Overall, the "labor contract law" after the implementation of the enterprise, the horizontal and vertical position of the human resources department promoted, and practitioners and a higher barriers to entry, enterprises need to undertake the transformation of human resource management, embodied in the transformation of human resources management strategy, establish a scientific and reasonable human resource management system, to strengthen the construction of enterprise culture, to adjust labor relations as its basic tasks, the staff as a driving force for the development of the enterprise.
(2) the "labor contract law" the new regulation effects on human resource management
1, the labor contract signed by the new rules for the influence of the human resources management
First of all, unit of choose and employ persons does not sign labor contract will face severe punishment. Unit of choose and employ persons and employee form of labor relations, under the current "labor law" regulation shall sign a written labor contract. But due to the current laws and regulations of unit of choose and employ persons does not sign the contract in writing lacks strong punishment measures, at the same time, unit of choose and employ persons not sign labor contract with laborer often escape the obligation to pay social insurance for employees, reduce firing workers pay economic compensation and other costs. Driven by the interests, the practice has built in labor relations and the fact that there is no sign a written labor contract labor relations abound. Aiming at these problems, the practice of the "labor contract law" to sign labor contract made a clear definition. Provisions within one month from the date of employment, conclude written labor contract, more than a month still not to enter into a written contract, the employing unit shall pay twice a month salary to employees; More than a year has yet to conclude a written labor contract, unit of choose and employ persons and employee is deemed to have concluded non-fixed term labor contract. The above provisions for unit of choose and employ persons, can say is tough. Accordingly, unit of choose and employ persons in the future should take various measures to prevent in human resources management, establish a strict labor contract regulations, prevent employees not sign labor contract with unit of the phenomenon, avoid forming the fact labor relationship with employees and cause unnecessary legal risk.
Second, guide unit of choose and employ persons is non-fixed term labor contract. The labor contract system in China began in the 80 s, when focused on recruiting new employees, is a regular contract; In the 90 s have been working staff in the implementation of the overall contract system, and introduce no fixed term labor contract. The term of labor contract relationship to employee career stability, the stability of the laborer professional also relates to the stability of the society as a whole. The current regulations on non-fixed term labor contract mainly embodied in "labor law" article 20: "a labourer has kept working in the same unit of choose and employ persons more than a decade, the parties agree to extend the labor contract, if the employee is put forward to conclude non-fixed term labor contract, non-fixed term labor contract shall be concluded." Can be seen from this provision, can sign non-fixed term labor contract employees range is very limited, now enterprises sign a contract with employees are mostly fixed deadline. Non-fixed term labor contract, as it were, disguised as a fringe of the contract. Because of the "labor law" the termination right to unit of choose and employ persons the extremely strict restrictions, while labor contract expire, there is no limit. Thus lead to unit of choose and employ persons "advantage" as far as possible through short term contracts.
"Labor contract law" to the related provisions of labor contract deadline is unit of choose and employ persons and employee sign non-fixed term labor contract, in order to build a harmonious labor relations. "Labor contract law" on the basis of the "labor law", to expand the range without a fixed term labor contract and cancelled the two sides agreed to such a special constraint conditions, instead of only uninterrupted length of service in a same employing unit for ten years, employees can put forward the non-fixed term labor contract, give the laborer of non-fixed term labor contract unilaterally. Additional, added two new must sign non-fixed term contract situations, such as: "signed a fixed term labor contract twice in a row, renew the labor contract. Since the date of the accepting unit of choose and employ persons for a full year not to enter into a written labor contract with laborer, unit of choose and employ persons and laborer shall be deemed to have concluded non-fixed term labor contract." At the same time, in violation of the provisions of the above specified unit of choose and employ persons not of non-fixed term labor contract with laborer, since the date of the non-fixed term labor contract shall be concluded to laborer pay twice a month's salary. "Staff on the stability of the regulation is a kind of protection, objectively make the enterprise to more staff sign non-fixed term labor contract. For the enterprise, should also be aware of the non-fixed term labor contract is not cannot lift. From the long term, unit of choose and employ persons non-fixed term labor contract if used correctly, can bring to unit of choose and employ persons attract talent, motivate employees, enhance cohesion, etc. So, non-fixed term labor contract employees, for the construction of harmonious labor relations is very advantageous term contracts and no regular contract complement each other, organic combination, can adapt the development of the labor market, achieve the optimal allocation of human resources. #p#分页标题#e#
2, remove labor contract and terminate the new rules for the influence of the human resources management
According to "labor law" regulation only pay companies to remove labor contract with compensation, and the natural end of unit of choose and employ persons labor contract don't have to pay compensation to employees. This leads to unit of choose and employ persons as far as possible, shorten labor contract deadline due to natural termination, terminate the labor contract pay economic compensation to employees. This is according to the labor contract the main cause of a lot. At present, many enterprises deliberately one-year labor contracts. After the expiration of the contract, the enterprise can fire the original employees hiring lower-paid new employees, to reduce labor costs. And in accordance with the "labor contract law" regulation, unless it is laborer themselves are not willing to renew the contract, otherwise, the contract is terminated when unit of choose and employ persons to pay compensation. For recent years, many enterprises short-term labor contract for special provisions protecting laborers' rights and interests.
After the expiration of the labor contract for economic compensation, can promote the enterprise and employees to sign long-term contract, otherwise the enterprise will compensate employees, pay the labor cost. If the enterprise continuous sign labor contract with employees. The provision of enterprise human resources management put forward new challenge. If the enterprise is always short term labor contract, not only need to spend a lot of manpower and material resources, training new employees, and for economic compensation contract staff. Provisions of the labor contract or other circumstances terminate labor contract, unit of choose and employ persons need to pay economic compensation, according to the length of service to the employees overall, increased by unit of choose and employ persons remove or terminate labor contract with employees in economic compensation costs. This rules can be in a certain extent, solve the problem of contract a lot, to promote the non-fixed term labor contract is signed, can contain business casual terminate labor contract, but increased labor costs for enterprises. Enterprises should attach importance to this change, don't be keen on short-term contracts, and to handle affairs according to law, strengthen the management of labor contract. Liquidated damages the new rule of the influence of human resource management. The "labor contract law limits the unit of choose and employ persons and employee provisions on the bearing of liquidated damages by the employee, the conditions of the breach of the applicable scope of very strict restrictions, prescribed liquidated damages is limited to limit competition and investment training two circumstances, which means that unit of choose and employ persons cannot normally on the liquidated damages borne by employee. In the current employment environment vulnerable position is not loose, cases, refine the specific terms of the relevant laws and regulations, to protect the legal rights of laborer will play an important role. Here are a few application case penalty due to breach of contract system of clear instructions on how to use.
(3) the influence of the performance management
The new law to expand without a fixed term labor contract, the applicable scope of the encourage enterprises to sign labor contract for a long time. In the past, due to unit of choose and employ persons can be used many times, one to two years of short-term labor contract, flexible exercise due but not the right to renew, so even if there is no special performance management and assessment requirements, delete employees also can because the pressure to renew and efforts to get the job done. In employees for the non-fixed term labor contract or long term labor contract, unless the employee serious illegal and other special circumstances, the unit must prove that the employee is not competent, to unilaterally adjust the post, and the corresponding salary employees or to lay off employees to terminate the labor contract. This no doubt to the enterprise performance management put forward higher requirements. On the enterprise internal improvements on performance appraisal system, in the past, many Chinese companies on the performance evaluation is relatively extensive, now of the new law also requires enterprises to improve the performance management system, especially in the enterprise and employee contract management and examination system needs to be sorted out.
Effective use of "labor contract law" impact on the enterprise human resources management measures
The labor contract system is the foundation of human resources management in enterprise, the issue of labor contract law, on the one hand, to build both stability and mobility of labor relations; On the other hand, will certainly to unit of choose and employ persons have significant influence on human resources. In "labor contract law" related to human resource management, analyzing the main content of several aspects in order to unit of choose and employ persons can improve the legal consciousness, enhance the level of employee relationship management, to avoid labor disputes, building a harmonious labor relations, so as to realize the optimal allocation of human resources.
(1) perfect rules and regulations, can make the enterprise to realize the standardization of the labor management
1, positive guidance, and education
Rules and regulations as a kind of enterprise internal standard employee behavior criterion, has the guidance role in the process of production for the employees. Rules and regulations published after, staff will clearly know what rights themselves, how to get these rights, should fulfill the obligations and how to perform them. Such as rules and regulations specified in the working hours, the staff will know when is the working time, when it is time to rest, can guide employees to work on time, in order to prevent the violation of labor discipline due to late or leave early. Again, such as, the behavior standards, rules and regulations specified in the work can guide, education staff constraints, their own behavior, prevent bad behaviour. Good rules and regulations, therefore, through the reasonable setting of the rights and obligations and responsibilities and can make the worker can predict their behavior and the consequences of efforts to motivate their work enthusiasm. In order to reduce the discharge the labor contract and must pay economic compensation, the enterprise from the employees into the resource, that is, from the staff recruitment. We need to according to the requirement of enterprise development and post recruitment plans, short-term employment does not sign labor contract for a long time, long-term employment does not make a year a sign; The good job to pass through, choose those who meet the requirements of the enterprise long-term development workers into the enterprise, reduce the cost of labourers; Better to go through the recruitment, avoid short-term labor long-term change, increase the burden of personnel, and influence the realization of enterprise human resources management strategy.
2, opposite the alert and deterrent effect
Opposite the alert and deterrent effect is mainly manifested in the following aspects: first, through to the employees in violation of the provisions of the consequences of rules and regulations to make employees to deterrence, enable employees to estimate in advance to in labor process as well as consequences, inhibit the occurrence of illegal ACTS. Second, through to the violation of the rules and regulations and penalties, to be in violation of the rules and regulations of the staff of education at the same time also make other employees see the consequences of violation of rules and regulations, all staff of vigilance and deterrence effect. For enterprise human resources managers in determining the recruitment plan, will be considering the job cuts is likely to happen in the future, do it for a rainy day. Structure reasonable configuration of human resources will no longer just stay in the paper a slogan, enterprise human resources management must always adhere to the principle of reasonable structure, tie-in and appropriate, do a good job configuration to make the enterprise staff's age distribution, education, skills, and gender distribution optimization, in order to avoid once enterprise for development need must be cut, the rest is "sick".
3, plan ahead and prevent such dispute occurs
The process of enterprise production labor, is also the course of the performance of the obligations of both sides of Labour and capital, enjoy the rights. Both sides of Labour and capital needs a variety of measures to ensure the rights and obligations, the labor contract, collective contract and national regulation and policy is one of the important guarantee, and enterprise rules and regulations is also one of the important guarantee. Rules and regulations will not only clear the rights and obligations of both sides of Labour and capital, but also more specific clear realization of the rights and obligations of both sides of Labour and capital measures, ways and methods, etc. Therefore, when the rights and obligations of both sides of Labour and capital rights and obligations as well as the implementation of measures, approaches and methods by the rules and regulations to be clear, specific, can significantly prevent the occurrence of disputes, in order to maintain the normal order of production and other work. Rest and vacation, for instance, belongs to the essential clauses of labor contract, but the labor contract may only involve the kinds of vacations, as for all kinds of holiday leave conditions, procedures, and vacations during treatment and so on does not generally in more detail in the labor contract agreement, which requires enterprise detailed provisions on vacation in the rules and regulations, otherwise, will cause a lot of disputes. As an enterprise, therefore, human resource managers, on the one hand, cannot be non-compete generalization, not an excuse for what people are law implements the non-compete, unjustly increase enterprise economic burden; And, on the other hand, must use the rule of law, in the beginning of establish labor relations with non-compete responsibility of senior management, senior technicians and other personnel with a confidentiality obligation to the agreement of non-competition, sign a written agreement, to ensure that the enterprise's legitimate rights and interests are not violated. #p#分页标题#e#
4, after the support and the role of evidence of handling labor dispute
Due to a confrontational side of labor relations, therefore, the enterprise in the process of labor production, labor conflict is unavoidable, human resource managers can do is try to ease labor contradiction, cannot eliminate, prevent labor conflicts. When the labor conflict broke out cannot solve through coordination, resort to the law is the only option. Labor dispute arbitration institutions and the court, the labor dispute cases need according to the national laws, regulations and policies, the labor contract, collective contract. Due to the rules and regulations also involves the rights and obligations of both sides of Labour and capital, the referee authority also is on the basis of enterprise's rules and regulations to the case. Especially in national laws and regulations, the labor contract and collective contract to provisions of the relevant matters disputes not clear, specific, rules and regulations is particularly important.
In 2001 the supreme people's court on the trial of labor dispute cases to explain some issues of applicable law stipulated in article 19, the unit of choose and employ persons according to "labor law" the provisions of article 4, through the democratic process, formulate rules and regulations, not in violation of the provisions of national laws, administrative regulations and policies, and has set up a public to laborer, can be used as the basis of the people's court trial of labor dispute cases." Thus, "labor contract law" for labor remuneration, working hours, laborer rights and interests of the content is directly related to labor protection and so on has made mandatory provisions. At the same time, and formulate rules and regulations, and to the rights of employees on the actual management for enterprises. Make clear a regulation, such as the "labor contract law" article 39 laborer is a serious violation of rules and regulations of the unit of choose and employ persons, unit of choose and employ persons can remove labor contract at any time. What is a serious violation of the employer's rules and regulations, needs the enterprise make provisions beforehand, namely the first unit of choose and employ persons must have clear, legal regulations exist, the second unit of choose and employ persons of the regulation system of what constitutes a serious violation of the rules and regulations must be made clear. The vast majority of enterprises in the face of the labor dispute dispute this problem on the cancellation of labor relationship, are lost in the "regulations". Specification of the enterprise is in formulating rules and regulations fully considering all the circumstances, detail content will likely be the focus of controversy, and written in the form of a "fixed", in the event of dispute, the rules and regulations can safeguard the legitimate rights and interests of enterprises. It can be said that the importance of the rules and regulations throughout the course of enterprise management and dispute resolution.
Particular attention to hold good program: first, to submit ZhiDaiHui or staff meeting to discuss; Second, the employees for discussion and then negotiate with the union, Third, must take the necessary form of "the public". This requires enterprise shall establish a workers congress system, also it shall establish a trade union; Otherwise, the legal procedure will cause labor rules and regulations can not be fulfilled its invalid. Implement the "labor contract law", a total enterprise and worker's rights must be respected, avoid risk, enterprise human resources management level should be promoted.
(2) enterprise coping strategies in terms of performance management
First, enterprises must pay attention to the basic management of human resources performance appraisal work, make its institutionalization, to be fair and reasonable performance appraisal, and make records of the results of evaluation and archive. Enterprises in the process of performance of the labor contract, if think employee is not competent for work, after job-transfer training or still is not up to work, the enterprise may terminate the labor contract after pay economic compensation, but needs to prove that the employee is not competent for work, need to have the job description and performance evaluation to determine the assessment results to support, otherwise there is no evidence to terminate the labor contract, which want to assume the responsibility of illegal remove labor contract. In addition, employees to serious dereliction of duty, thereby causing loss to the enterprise, the enterprise can also terminate the labor contract, the enterprise does not need to pay economic compensation, the need to prove serious dereliction of duty staff, also need the job description and performance evaluation to determine the assessment results to support. Is second, work records to calculate salary the important basis of hourly wages, attendance record need signed by staff, enterprises need to save for two years, the attendance information if labor dispute occurs enterprise of proof obligations. Companies can design together with the staff salary table will work records, at the same time of employees to sign for salary also confirmed attendance. First of all, must be strictly performed in accordance with the provisions of laws and regulations is the responsibility of enterprises and obligations. , for example, payroll and full payment of remuneration to the employee on time, according to the requirements of relevant laws and regulations to provide labor protection, improve working conditions, in accordance with the law for worker pay society insurance premium, etc., don't give laborer reason to terminate the labor contract and excuse.
Secondly, through building excellent enterprise culture, improve the enterprise human resources management, the enhancement enterprise to attract talents. Through improve and perfect the enterprise internal management system, for enterprise to lay a good foundation for the construction of harmonious labor relations; At the same time, through the construction of excellent enterprise culture for a comfortable atmosphere for the construction of harmonious labor relations; Through better career prospects, competitive pay employees for the enterprise to construct good development vision, enhance the cohesion of the enterprise, improve enterprise to attract talents, to achieve the goal of human resources and development of the enterprise strategy.
(3) the implementation of relatively stable compensation policies
Under the current international financial crisis, make the enterprise in different degrees the revenue, profit decline phenomenon, many enterprises in order to reduce costs, to take the measure of pay cuts and layoffs.
First, don't pay cuts and layoffs. Premier wen jiabao stressed repeatedly in different occasions: "confidence is more important than gold and currency." Therefore, enterprises don't pay cuts and layoffs decision. Because, if the enterprise pay cuts and layoffs, will affect the enthusiasm of staff, staff will think enterprises lacked the confidence to tackle the financial crisis, the best employees are most likely to leave, because these employees will lower capacity than their colleagues are more confident, are more likely to pay levels on finding a new job. On the contrary, the relatively stable compensation not only can retain employees, can attract high level talents to join our team.
In the face of the more difficult, therefore, enterprises should firm the confidence in implementation of the compensation policy, the more stable stimulate staff's work enthusiasm, jointly cope with the international financial crisis.
Second, try to keep employees their pay levels. First of all, adjust the effective working time. Using rotational, measures such as duty, days off, holidays, reduce the employee's work time effectively. Especially those who pay structures in performance-related pay than major, large absolute number of workers, reduce the effective working time, means that the reduction of the merit pay part of the human cost.
Second, pay strategy adjustment. Enterprises can adjust the salary structure, increase the proportion of performance pay, which merit pay part can be combined with adjust the effective working time or delayed, achieve the goal of reducing manpower costs.
Again, pay cut executives take the lead, cut rate is higher than general staff. Because, cut executives take the lead, can give employees a feeling of share the joys and sorrows, which can increase the cohesion of the enterprise. Moreover, the general employees' pay is the main source of life, if wages range is too big, can affect the life of employees, thus affect employee's work efficiency, thus affect the instability of the society.
In a word, "labor contract law" and the promulgation and the implementation of the regulations has a significant impact on the enterprise human resources management. Under the current international financial crisis, enterprises can also use "labor contract law" and the promulgation and the implementation of the regulations, perfect the enterprise of labor rules and regulations, in order to strengthen the management of enterprise's labor employment, optimize enterprise human resources, the implementation of relatively stable pay policy, absorb and retain high-quality labor force, so as to achieve the goal of enterprise competitiveness, calmly cope with the international financial crisis, realizing the maximization of profits. #p#分页标题#e#
Conclusion
The new "labor contract law" to the enterprise's management brings great influence on human resources management. It is like a double-edged sword, if the human resources department is handled properly, will be able to bring to unit of choose and employ persons attract talent, motivate staff and enhance cohesion. If handled well, will increase the enterprise artificial cost cost, bring unnecessary loss. The release of a new law in fact is to accelerate the process of legalization of the management of human resources. The most important thing is, the enterprise human resources management ultimate goal should be to employees and enterprise common health harmonious growth. We can say that the promulgation of the new law is perfect management system for enterprise puts forward higher requirements, at the same time, demand for staff is also improved. "Labor contract law" require companies to perfect the management system and improve the legal consciousness. Enterprise itself needs a set of laws system, if there is a good platform, will form a virtuous cycle, society, enterprise, employees can profit. The platform should be done by government and business together. Is the need to set up a "dynamic organization" in order to use in time and track human capital. All aspects of the above questions are need to human resources managers to explore and think, effectively prevent and respond to the labor risk will be the human resources department for a rainy day, without waiting for my first job and duty! In the process, as long as our human resource managers when making the architecture of human resources to fully consider the interests of both enterprises and employees, rather than purely from the enterprise interests, will not have your head in the face of the new law. For maintenance and improvement of the survival and development rights of laborer this is part of the corporate job, and should not have to wait until the state power constraints by law.
Reference
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