Keywords: probation period; Employer; Laborers; Labor Contract Law
First of all, the questions raised
Probation period refers to the period during which the labor relations are still in an informal state and both parties conduct mutual inspection. That is, the time limit for the employer to examine whether the employee is qualified and the time limit for the employee to know whether the employer is suitable for his own requirements. During the probation period, the labor relationship between workers and employers is in an uncertain state. In practice, there is a certain gap between the probation period and the salary after joining the company. Employers often abuse the probation period in order to reduce the cost of enterprises. Moreover, some employers even mistakenly believe that the purpose of the probation period is to examine whether the workers meet the employment conditions and decide whether to establish a labor contract. These are all misunderstandings about the nature of probation. Therefore, a correct understanding of the nature of the probation period has an important influence on clarifying the rights and obligations of both parties in labor relations.
Second, correctly understand the nature of the probation period-guided by relevant Japanese theories.
(A) A brief analysis of various Japanese theories
Japanese academic circles have different views on the legal nature of probation. One view is that the probation labor relationship is an experimental contract, which is different from the formal labor contract. Representative theories include the theory of appointment contract and the theory of special contract. Another view is that the probation labor contract is not a contractual relationship, but is included in the formal contract. Representative theories include the theory of stop condition, the theory of revocation condition and the theory of reserved revocation right.
Both the theory of appointment contract and the theory of special contract believe that the probation period is a contract attached to the formal labor contract, and the probation period is only a probation period for the establishment of the formal contract. The difference between the theory of appointment contract and the theory of special contract lies in that the former thinks that the purpose of probation is to judge whether the workers are qualified or not, and the probation period is the prerequisite for the formal conclusion of labor contracts; The latter thinks that the probation period has the purpose of an experimental labor contract and is a special labor contract with a certain period. Obviously, the theory of appointment contract is centered on the employer, and its basic position to explain the probation period is carried out in the tone of the employer, which only emphasizes the adaptability of workers to the employer. The theory of special contract is not as narrow as the former on this issue. It only recognizes that the probation period is experimental, that is to say, the probation period is equally experimental for employers and workers, both of which are the center of the probation period. The theory of appointment contract has obvious defects, because it only regards the probation period as the system period to judge whether the workers are qualified, and completely ignores whether the employer also meets the requirements of the workers. This theory will put the workers at a great disadvantage. Labor and capital are born with unequal status, strong resources and weak labor force. This theory has undoubtedly played a worse role for workers. The theory of special contract can be said to be impartial at this point, which makes up for the deficiency of the theory of appointment contract to some extent. However, the theory of special contract also has defects, because the premise of this theory is that "the labor relationship during the probation period is an experimental contract, which is different from the formal labor contract". The potential implication of this prerequisite is that the probation period is not part of the labor contract (contract). If the probation period is not part of the labor contract (contract), then it is impossible to apply the labor contract law to the probation period. If so, then the legal application of probation can only resort to labor law or contract law. First of all, discuss the application of labor law in probation period. However, only applying the labor law to regulate the probation period cannot solve all the problems. The remaining path is to resort to contract law. As we all know, the personal and property relations between equal subjects are regulated by contract law. This is inherently exclusive to subordinate labor legal relations. Therefore, it is not feasible to use contract law to adjust the relevant issues of probation period. At this point, the theory of appointment contract and special contract adhered to by Japanese labor law scholars have major defects and are not desirable.
According to the theory of stopping conditions, the probation period is not a contract independent of the labor contract, but only a stopping condition attached to the labor contract. During the probation period, if the employer thinks that the employee meets the employment conditions, then the conditions for stopping the probation period are established, and the employee ends the probation period and becomes a regular employee. On the contrary, the workers will be fired. For the laborer, if the employer fails to meet the requirements of the laborer in some aspects, the laborer can also terminate the labor contract. According to the theory of termination conditions, the probation period is the termination condition of the labor contract. If the employer considers that the employee's performance during the probation period is unqualified, then the termination conditions are established, and the employer will terminate the labor relationship with the employee, and the labor contract will be invalid at the same time. The theory of reserving the right to dismiss is the mainstream theory in Japan, which holds that the labor contract will also take effect when the probation period begins, but the employer still reserves the right to dismiss and can terminate the labor relationship with the employee once it is found that the employee does not meet the employment conditions during the probation period. After the probation period expires, the employer no longer has the right to dismiss, and the labor contract continues to take effect. Through careful analysis of the theory of dismissal conditions and the theory of retention of dismissal rights, we will find that these two theories still adhere to the position of employer-centrism. When explaining the probation period, the employer's eyes and tone are still used, which only emphasizes the adaptability of employees to employers and ignores the adaptability of employers to employees. To some extent, the probation period should be a period for employers and workers to adapt to each other, during which the mutual adaptation of both parties is equal. As long as one party can't adapt to the other, then the other party can terminate the labor contract. If we only emphasize the adaptation of one party to the other, it will further strengthen the subordination of labor legal relations and weaken their equality. Under the modern enterprise system, workers have become a vulnerable group. If we continue to emphasize the initiative of employers blindly, the discourse space of workers will be further squeezed. This is unfair in form and result. Moreover, these two theories are also contrary to the above-mentioned substantive equality and inclined protection. Therefore, neither theory is desirable. Relatively speaking, the stop condition theory may be more reasonable.
(B) from the theory of stop conditions to see the specific nature of the probation period
Combined with Articles 3 and 4 of 19, 2 1 and 37 of the Labor Contract Law, it can be seen that the theory that the probation period in China insists on stopping conditions at least includes the following connotations:
(1) incidence. On the one hand, the probation period is part of the labor contract. Concluding a labor contract is the premise of agreeing on a probation period. The term of the labor contract includes the probation period, which is not stipulated separately outside the term of the labor contract, but is included in the term of the labor contract. On the other hand, the probation period and the labor contract take effect at the same time. As long as the probation period takes effect, the labor contract also takes effect.
(2) adaptability. Probation period refers to a special period during which workers and employers inspect, run in and adapt to each other after establishing labor relations. During the probation period, workers can judge the prospect and development space of the employer; The employer can consider whether the ability and potential of the workers meet the needs of the unit. Then a reasonable and legal probation period can play a very positive role in protecting the legitimate rights and interests of both employers and employees.
(3) selectivity. Whether to conclude a probation period clause in a labor contract is a clause that both the employer and the employee think it necessary to agree when concluding a labor contract, and it is the result of consensus between the two parties in labor relations. Both parties to a labor contract may or may not agree on a probation period. In other words, the probation period in the labor contract is not a statutory requirement.
(4) legal restrictions. The probation period is strictly stipulated by law, and its purpose is to prevent employers from infringing upon the legitimate rights and interests of workers by replacing the probation period with probation period and apprenticeship period. The length of probation is also determined according to the length of the labor contract. On the basis of respecting the autonomy of both parties in labor relations, the employer shall formulate a reasonable probation period, and the employer shall not violate the relevant provisions of the probation period.
Third, the conclusion
An accurate understanding of the nature of the probation period is conducive to distinguishing the probation period from the internship period and the apprenticeship period, compressing the operating space of the employer, and then realizing the inclined protection for the workers. In practice, it is urgent to change the misunderstanding of probation period. We should not only emphasize that the probation period is the time limit for workers to adapt to the employer, but also the time limit for employers and workers to adapt to each other.
References:
[1] Xu Zhihua: Labor Law, Peking University Publishing House, 2008.
[2] Liu Zhipeng: "Research on Labor Law Theory and Judgment", Zhao Yuan Publishing Company, Taipei, 2000.
[3] Wang Qianxi: "Research on the probation rules of labor contracts", master's degree thesis of Jilin University, 20 1 1 year.
About the author: Song (1987-), female, from Yongzhou, Hunan Province, is a graduate student of Economic Law at Zhongnan University of Economics and Law.