From the legislative purpose and law, we can see that the labor contract law strengthens the protection of workers' rights and interests. In view of the shortcomings of many articles in the previous labor law, legislators adopted the suggestions of all parties and finally promulgated the Labor Contract Law after many deliberations. The Labor Contract Law is a law regulating labor relations, and both employers and workers should regulate their behaviors in strict accordance with the provisions of this law. It is obvious that workers are in a weak position, and legislators have fully considered this point and promulgated such a law during the period of economic transformation in China. Although some provisions on the rights and interests of workers in the Labor Contract Law need to be improved, this legislation has established the legislative purpose of paying attention to the protection of workers' rights and interests for the first time, which is of epoch-making significance.

(1) On signing contracts between employers and employees.

1. To establish labor relations, a written labor contract shall be concluded.

Article 10 of the Labor Contract Law stipulates that a written labor contract shall be concluded when establishing labor relations. According to the classification of civil contracts, contracts are divided into oral contracts and written contracts, so labor contracts are also divided into oral contracts and written contracts in theory. Why does the Labor Contract Law stipulate that labor contracts must be in written form?

First of all, the content of an oral labor contract is difficult to determine, which is prone to disputes. When there is a labor dispute between the laborer and the employer, the disadvantage that the oral labor contract can not obtain evidence is very unfavorable to the protection of the laborer's rights; Secondly, unlike oral contract, written labor contract is the carrier to record the rights and obligations of employers and workers, and records the rights and obligations of employers and workers in detail. In other words, the written labor contract stipulates the specific labor rights and obligations of both parties, and both parties shall perform their respective obligations in accordance with the contract. If the employer fails to perform the obligations stipulated in the labor contract, then the laborer can hold a written labor contract to safeguard his legitimate rights and interests through legal channels. [1] From the above two reasons, it is very necessary to conclude a labor contract in written form. This provision of the Labor Contract Law not only inherits the provision in Article 19 of the Labor Law that "labor contracts should be concluded in written form", but also provides a legal basis for laborers to conclude written labor contracts with employers, which better protects the legitimate rights and interests of laborers.

2. The employer shall conclude a labor contract with the employee within 1 month after establishing a labor relationship with the employee.

The "Labor Law" has no provisions on employment procedures, and there is no clear time to establish labor relations and sign labor contracts. Article 10 of the Labor Contract Law stipulates that the employer shall conclude a labor contract with the employee within 1 month after establishing a labor relationship with the employee. The employer and the employee must conclude a labor contract when establishing labor relations. However, due to various reasons, not all labor contracts can be concluded at the beginning of the establishment of labor relations between employers and employees. To this end, the Labor Contract Law is based on the principle that a written labor contract should be concluded when establishing labor relations, and also stipulates that "if a written labor contract is not concluded at the same time, a written labor contract should be concluded within one month from the date of employment." In other words, after the employer and the employee form a labor relationship, it is not necessary to conclude a labor contract with the employee immediately, just for one month. If the employer fails to conclude a labor contract with the employee for more than one month, it shall be based on the first paragraph of Article 82 of the Labor Contract Law: "If the employer fails to conclude a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the salary." This provision is extremely beneficial to workers. [2]

3. If the employer and the employee conclude a labor contract before employment, the labor relationship shall be established from the date of employment.

According to the provisions of Article 10 of the Labor Contract Law, combined with the provisions of Article 7 "The employer establishes labor relations with the employee from the date of employment", it can be seen that the labor contract concluded by the employer and the employee is not necessarily related. The establishment of labor relations is the time when employers and workers actually start to hire, not when they sign labor contracts. According to the original "Labor Law" article 16, paragraph 1, "a labor contract is an agreement between a laborer and an employer to establish a labor relationship and clarify the rights and obligations of both parties." In other words, the conclusion of a labor contract is a prerequisite for the establishment of a labor relationship, which gives people the illusion that a labor relationship can only be truly established if the employer and the employee conclude a labor contract. This provision puts the cart before the horse in labor relations and labor contracts. It is precisely because of this wrong provision that employers have taken advantage of this law for more than ten years, deliberately not concluding labor contracts with workers, making it more and more difficult for workers to use labor contracts as evidence of rights protection. In addition, there are indeed some labor arbitrators and judicial personnel who have misunderstandings about labor relations and labor disputes. When dealing with labor dispute cases, when workers can't get a labor contract, it is easy to make a ruling or decision that they will not accept it, or even if they accept it, they will not support their claims, which will aggravate the deterioration of labor relations caused by the violation of the legitimate rights and interests of workers and the lack of protection and legal relief. Now, judging from the provisions of Article 7 and Paragraph 3 of Article 10 of the Labor Contract Law, the provisions of the Labor Law have been revised in terms of the establishment of labor relations and the conclusion of labor contracts, which negates the wrong idea of placing labor contracts in the premise and central position of labor relations, and returns to the core of labor relations as the true nature of the actual employment behavior between workers and employers. This is the fundamental reason! Only in this way can workers who are in a weak position in labor relations be better protected.

On the labor contract with no fixed term

1. Article 20 of the Labor Law stipulates that signing an open-ended labor contract must meet three conditions: first, "having worked in the same company for 10 years", second, "both parties agree to renew the labor contract" and third, "the laborer proposes to sign an open-ended labor contract". However, in recent years, the signing rate of labor contracts is very low. According to sampling survey statistics, the average signing rate of labor contracts in China is not high, especially in the construction industry and catering service industry, which is only about 40%. The signing rate of labor contracts for migrant workers is about 30%, and the signing rate of small and medium-sized non-public enterprises is less than 20%. [4] In addition, the current phenomenon of short-term labor contracts is very serious. Most labor contracts are signed once a year, and some even several times a year, which affects the harmony and stability of labor relations. Article 14 of the Labor Contract Law stipulates that there are three situations in which a laborer requests to conclude an open-ended labor contract: first, the laborer has worked in the employer for ten years continuously; Second, when the employer implements the labor contract system for the first time or the state-owned enterprise is restructured and re-concludes the labor contract, the employee has worked in the employer continuously for ten years, and is less than ten years away from the statutory retirement age; Third, two consecutive fixed-term labor contracts have been concluded, and the employee does not have the circumstances stipulated in Articles 39 and 40, paragraphs 1 and 2 of this Law. This regulation is mainly aimed at the problems of low signing rate and short contract term in the past. The victims of low labor contract signing rate and short contract term are generally laborers, and the employer has little influence. On the contrary, employers can take the opportunity to evade their responsibilities. With this provision, workers have the initiative to conclude labor contracts, and the legitimate rights and interests of workers can be better protected.

2. In addition to the three cases of non-fixed-term labor contracts clearly stipulated in the Labor Contract Law, there is another case where the employer fails to conclude a written labor contract with the employee within one year from the date of employment, and it is deemed that the employer and the employee have concluded a non-fixed-term labor contract. Moreover, if the employer violates the provisions of the Labor Contract Law and fails to conclude an open-ended labor contract with the employee, it shall pay the employee twice the monthly salary from the date when the open-ended labor contract should be concluded. This provision well protects the legitimate rights and interests of workers, avoids the troubles caused by employers' deliberate failure to sign labor contracts with workers, and also urges employers to sign labor contracts with workers.

3. The provisions of the Labor Contract Law on open-ended labor contracts are conducive to creating a stable professional environment for workers. A stable professional environment will make workers enhance their trust in the employer, and they will devote all their enthusiasm to their work, study their business and constantly improve their professional skills. This will not only improve themselves, but also bring better benefits to the employer.

(3) About the probation period.

1. The labor law only stipulates that the probation period can be stipulated in the labor contract, and the longest probation period shall not exceed 6 months. Compared with the labor law, the labor contract law clearly stipulates the probation period: "If the term of the labor contract is more than three months but less than one year, the probation period shall not exceed one month; If the term of the labor contract is more than one year but less than three years, the probation period shall not exceed two months; The probation period for labor contracts with a fixed term of more than three years and without a fixed term shall not exceed six months. " The probation period must be agreed by the employer and the employee within the scope prescribed by law. The concretization of probation period can effectively prevent employers from arbitrarily stipulating probation period and not signing labor contracts with workers for a long time. In addition, the probation period is also the time limit for workers to inspect the employer, which is beneficial for workers to understand the specific situation of the employer within a reasonable time. The "Labor Contract Law" clearly stipulates the probation period, standardizes the employment system of the employing unit, and provides a clear legal basis for workers to agree on the probation period with the employing unit. Once the employer violates the rules during the probation period, workers can safeguard their legitimate rights and interests through legal means.

2. Article 20 of the Labor Contract Law also clearly stipulates the salary during the probation period: "The salary of workers during the probation period shall not be lower than the minimum salary of the same position in the unit", which is the concrete embodiment of "equal pay for equal work". Although the laborer is in the probation period, his position is the same as that of other employees, and his work is the same. Even if he has less work experience than the old employees, he may not create less value than them. This provision was made by legislators from the perspective of fairness. The Labor Contract Law also stipulates: "The wages of workers during the probation period shall not be lower than 80% of the wages agreed in the contract, and shall not be lower than the minimum wage standard where the employer is located." This provision is mainly to prevent employers from arbitrarily setting probation wages. If the probation salary is set by the employer itself, then the employer will definitely try to lower the probation salary, which is extremely unfavorable to the workers. The law clearly stipulates the salary limit of probation period, which provides clear legal guidance for employers and effectively protects the legitimate rights and interests of workers.

3. Article 21 of the Labor Contract Law stipulates: "If the employer terminates the labor contract during the probation period, it shall explain the reasons to the employee". In order to curb employers' malicious use of probation period, the Labor Contract Law has made targeted provisions. During the probation period, the employer shall not terminate the labor contract unless there is evidence to prove that the employee does not meet the employment conditions. Even if there is evidence that the employee does not meet the employment conditions and needs to terminate the labor contract during the probation period, the employer shall abide by legal procedures, that is, if the employer terminates the labor contract during the probation period, it shall explain the reasons. If the employer terminates the labor contract during the probation period, it shall explain the reasons to the employee, which is the legal obligation of the employer. Compared with the provisions of the labor law, this provision strengthens the protection of workers. Through the restriction of this article on the employer's termination of the labor contract during the probation period, it is conducive to avoiding the occurrence of incidents in which the employer terminates the labor contract under any excuse and infringes on the legitimate rights and interests of workers. [5]

(4) Provisions on liquidated damages

1. There is no relevant provision on service period in the Labor Law, but Article 22 of the Labor Contract Law stipulates that if a worker violates the agreement with the employer during the service period, he shall pay liquidated damages, but the amount of liquidated damages shall not exceed the training expenses provided by the employer. This provision clarifies the maximum amount of liquidated damages that employers can recover from employees. The agreement between the employer and the employee that the liquidated damages are higher than this limit is invalid, and the employee will not bear high compensation costs because of breach of contract. The article also stipulates that the liquidated damages required by the employer shall not exceed the training expenses that should be shared by the unfulfilled part of the service period. This provision shows that workers can not bear the liability for breach of contract for the part of the service period that has been fulfilled, but only for the part that has not been fulfilled, which greatly reduces the burden of breach of contract for workers. In addition, this article not only limits the liquidated damages during the service period, but also stipulates that the service period does not affect the improvement of labor remuneration according to the normal wage adjustment mechanism. Workers can not only avoid the risk of high liquidated damages, but also have the opportunity to enjoy a salary increase during their service.

2. Article 23 of the Labor Contract Law stipulates that if the employer and the employee agree on a non-competition clause, they shall give the employee monthly economic compensation during the non-competition period after the contract is dissolved or terminated. This provision shows that workers are not completely restricted during the period of non-competition, and they can also get economic compensation from the employer while being restricted. In addition, Article 25 of the Labor Contract Law stipulates: "Except in the circumstances stipulated in Articles 22 and 23 of this Law, the employer shall not agree with the employee that the employee shall bear the liquidated damages". This provision of the Labor Contract Law has played a very positive role in preventing employers from abusing the liquidated damages clause and protecting workers' right to choose their own jobs.

(five) about the arrears or insufficient payment of labor remuneration.

1, the Labor Law does not provide effective measures to solve the problem of wage arrears or insufficient payment to workers. In recent years, the phenomenon that employers are in arrears with workers' wages or fail to pay labor remuneration in full is widespread and serious, especially for migrant workers, mainly in construction enterprises and catering service enterprises. According to statistics, in recent years, more than 70% of workers' mass incidents are caused by the problem of unpaid wages. It is not uncommon for individual workers to take excessive actions such as "jumping off a building" and "gathering people to make trouble" to ask for wages in major newspapers. Although there is a farce, we can't deny the fact of unpaid wages, which has to attract our attention. [6] Some enterprises have poor operating efficiency. In order to increase profits, they even regard arrears and deduction of wages as a business strategy, ignoring the existence of the law. Although workers know that it is illegal for employers to deduct and default on wages, it is difficult for them to seek justice for themselves. The Labor Law stipulates that when there is a labor dispute between a laborer and an employer, they cannot bring a lawsuit directly to the people's court, but must first apply to the Labor Dispute Arbitration Committee for arbitration, which is a necessary pre-procedure for prosecution.

2. In view of the above problems, Article 30 of the Labor Contract Law stipulates: "If the employer defaults or fails to pay the labor remuneration in full, the employee may apply to the local people's court for a payment order according to law, and the people's court shall issue a payment order according to law". This provision has well solved the complicated labor dispute procedure in the past. When the employer fails to pay the labor remuneration in full, the laborer can directly apply to the local grass-roots people's court for a payment order without going through arbitration and trial procedures, which provides a quick judicial remedy for the laborer to get back the wages he deserves.

(six) about the establishment of rules and regulations by the employer.

1. according to the labor law, it is the right and obligation of the employer to establish and improve the rules and regulations. As far as rights are concerned, it is a "single decision". In practice, when many employers make, modify or decide rules and regulations or major issues that directly affect the vital interests of workers, they have the final say and do not listen to the opinions of employees. This unilaterally stipulated "overlord system" generally ignores the opinions and interests of workers and imposes unreasonable rules and regulations on them, which seriously damages the interests of workers. The interests of enterprises, laborers and investors are the same. When an enterprise formulates, modifies or decides the rules, regulations or major issues that are directly related to the vital interests of employees, such as labor remuneration, working hours, rest and vacation, labor safety and hygiene, insurance and welfare, employee training, labor discipline and labor quota management, it shall fully negotiate with employees to determine them, and the enterprise shall not have the final say.

2. The "Labor Contract Law" is to adjust the previous rules and regulations to be completely controlled by the employer, ignoring the disadvantages suggested by the workers. It is stipulated that when rules and regulations or major issues are directly related to the vital interests of workers, they should be determined through equal consultation with trade unions or employee representatives, and the employer will no longer be in charge, so as to ensure the equal status of employers and employees in the rules and regulations. From this point of view, the provisions of the Labor Contract Law on unit rules and regulations can not only achieve institutional fairness, but also protect workers who have been in a passive position for a long time.