A Japanese-funded photosensitive equipment manufacturer in Shanghai has always been concerned about the welfare of its employees, hoping that employees and the company will grow together and pay special attention to the training of employees. Every year, the company organizes employees to go to the headquarters in Japan for training, and even entrusts a well-known institute of technology in Japan to conduct degree study for outstanding employees. On June 20 10, the company sent two technicians to the Japanese headquarters to study, among them, Xiao Chen went to the head office to learn the operation technology of new models, and Xiao Liu was arranged to be trained in short-term projects at the University of Tokyo. Both of them are paid full-time training, and signed a training service period agreement, which stipulates that the service period is three years and the penalty is 654.38+10,000 yuan.

On March 20 10, two employees returned to China at the same time and returned to work in the company. Soon after, two employees left. In addition, both employees raised the issue of the validity of the training service period agreement. Xiao Chen thinks that his so-called training is actually a normal arrangement in business, not the professional and technical training mentioned in the Labor Contract Law, so it is impossible to set the service period and liquidated damages. Xiao Liu thinks that although he has signed a training service agreement, the training fee for two months can't be 6.5438+10,000 yuan, so only when the company issues a training invoice can the corresponding liquidated damages be paid according to the amount on the invoice. Now the company can't get the invoice, and he can't pay the penalty.

Relevant regulations:

Decision on vigorously promoting the reform and development of vocational education 19. All kinds of enterprises should implement vocational education and staff training according to the provisions of the Vocational Education Law of People's Republic of China (PRC), and bear the corresponding expenses. General enterprises withdraw funds for education and training in full according to 65438+ 0.5% of the total wages of employees, and enterprises with high technical requirements, heavy training tasks and good economic benefits can withdraw funds according to 2.5%.

Paragraph 2 and Paragraph 3 of Article 22 of the Labor Contract Law: If a laborer violates the agreement on the service period, he shall pay liquidated damages to the employer as agreed. The amount of liquidated damages shall not exceed the training expenses provided by the employer. The liquidated damages that the employer requires the laborer to pay shall not exceed the training expenses that should be shared for the unfinished part of the service period. If the employer and the employee agree on the service period, it will not affect the employee's improvement of labor remuneration in accordance with the normal wage adjustment mechanism during the service period.

Article 16 of the Regulations on the Implementation of the Labor Contract Law: The training fees stipulated in the second paragraph of Article 22 of the Labor Contract Law include the training fees paid by the employer for the professional and technical training of the workers, the travel expenses for the same period of training and other direct expenses incurred by the workers due to the training.

Article 17 of the Regulations on the Implementation of the Labor Contract Law: If the labor contract expires, but the service period agreed by the employer and the employee in accordance with Article 22 of the Labor Contract Law is not expired, the labor contract shall continue until the service period expires; Unless otherwise agreed by both parties, the agreement of both parties shall prevail.

Analysis:

This is a typical case of training service agreement performance and default handling. In this section of the case, mainly involves two issues:

First, what kind of training can set the service period recognized by the labor contract law;

The second is how to reasonably stipulate the service period and liquidated damages in the training service period agreement.

For the first question, how to understand the professional and technical training recognized in the Labor Contract Law? Generally speaking, there are two kinds of training.

One is the general level of vocational skills training, which aims to make employees basically adapt to the "production requirements" of enterprises and indirectly improve the technical quality of workers. The content is mainly general job skills training and special type of work training.

Another kind of training is career development training, which is provided by the enterprise to improve the skills and quality of employees when the employees have reached the basic requirements of the enterprise. Providing vocational skills training for employees is a legal obligation of enterprises, and generally the service period cannot be agreed with employees.

The essence of career development training is a high-level investment behavior of enterprises, and it is a measure taken by enterprises to improve their competitiveness and retain talents. The specific content of vocational development training can be divided into professional technical training and non-professional technical training, and enterprises can stipulate the service period of professional technical training. For non-professional technical training, even if a lot of costs are invested, it is impossible to agree on the service period and liquidated damages.

As far as this paragraph is concerned, first of all, it is necessary to judge whether the training of two employees belongs to professional and technical training, and the training of operating machines can generally not be recognized as professional and technical training, so the service period agreement of Xiao Chen is invalid; The second is to judge whether the unit contributes. If the company can't provide proof of capital contribution, it can't claim the service period and liquidated damages from Xiao Liu. Regarding the second question, the Labor Contract Law clearly stipulates the setting and agreement of liquidated damages during the training service period. If the laborer violates the service period agreement, he shall pay liquidated damages to the unit in accordance with the agreement. The amount of liquidated damages shall not exceed the training expenses provided by the employer. The liquidated damages required by the unit shall not exceed the training expenses that should be shared for the unfinished part of the service period. In the case in this section, if the enterprise can prove that it has provided employees with invoices and other evidence, and its own training belongs to professional and technical training, it can claim liquidated damages from Xiao Liu who violated the service period agreement. If the employee leaves the company before the agreed service period, causing actual losses to the enterprise, and the liquidated damages are not enough to make up for it, the enterprise may also claim compensation from the employee. As for the length of service, it usually needs to be handled according to the actual situation of the enterprise, and both parties can freely negotiate and agree according to the principle of fairness and voluntariness.

Enterprises should pay special attention to the design and performance of the employee training service period agreement, seriously consider the terms of the training service period agreement, and fully consider all kinds of rationality and legitimacy, so that the training service period agreement can really play its due role. Specifically, you can recruit people from the following aspects:

1. About the essence of training.

Clearly define the nature of training in the training agreement. When providing training to employees, enterprises should sign a training agreement in advance, make a training plan, and make it clear that the nature of training is professional and technical training. Especially for the training categories with relatively vague nature such as qualification certification and project courses, it should be clarified through the terms of the agreement.

2. About training fees.

The enterprise shall clearly stipulate the scope, composition and calculation method of the training fee in the training agreement. Training fees include not only direct training fees such as tuition fees, but also indirect training fees such as accommodation fees, travel expenses and training subsidies. Whether training only refers to direct training fees or includes direct training fees and indirect training fees also needs agreement.

3. About the service period.

How long the service period set or agreed by the enterprise for the trained employees depends on the actual situation of the enterprise and the personality characteristics of the employees. Enterprises with low employee turnover rate can set a longer term, and vice versa. According to a reasonable estimate of the job-hopping cycle, the service period is usually 3-5 years, and the longest is no more than 10 years.

4. About liquidated damages.

According to the provisions of the Labor Contract Law, the amount of liquidated damages for employees to dissolve or terminate the labor contract before the expiration of the service period shall not exceed the training expenses provided by the enterprise. The liquidated damages borne by the enterprise shall not exceed the training expenses that should be shared for the unfulfilled part of the service period. As for whether it is allocated by year or by month, it depends on the agreement of both parties.

5. About evidence retention.

Enterprises should pay attention to collecting evidence in the training process. Specifically including:

First, the evidence of capital contribution. Enterprises should collect relevant expense documents after training, and may require employees to sign for confirmation if necessary;

Second, the evidence that employees receive training. Enterprises can require employees to fill in training records and submit training reports according to the agreement, and indicate the training time.