Adjustment of workers' work.
In practice, there is still a problem, that is, whether workers can be regarded as absenteeism if they refuse to accept the adjustment of their jobs and fail to work at their posts. Changes in labor contracts include agreed changes and statutory changes, so there are two kinds of post adjustment for workers: agreed post adjustment and statutory post adjustment. In the case of agreed post transfer, the laborer and the employer agree to change the post, and the legal effect of the change will only occur if the expression of change is agreed. If the two sides fail to reach an agreement through consultation, the employer forcibly changes the position of the employee. This unilateral change has no legal effect and the employee is not bound by the employer's change behavior. At this point, the employee's absenteeism cannot be regarded as absenteeism. In the case that the employer enjoys the legal right to unilaterally change, the employer adjusts the employee's post because the employee can't do the original job or is incompetent for his own reasons. At this time, workers can't exert their labor skills, which leads to the waste of labor resources; Furthermore, the employer can't get the surplus value created by the workers, which makes the unit suffer losses. Therefore, in this case, it is necessary and inevitable for the employer to adjust the workers' jobs. Therefore, in the case of changing the labor contract according to law, if the employee cannot accept the transfer behavior of the employer and is not on the job, it should be considered as absenteeism. Labor law emphasizes the protection of workers, but it does not force employers to hire incompetent workers, otherwise it will damage the legitimate rights and interests of employers.
Problems that employers should pay attention to in the change of labor contract
Because the labor law tends to protect the rights and interests of workers and sets many mandatory obligations on employers, employers should pay attention to protecting their rights in the process of changing labor contracts. First of all, we should pay attention to a common problem, that is, the written form of labor contract change. The main controversy on this issue is whether the written form is an effective element of the change of labor contract and what specific types are included in the written form. Regarding the first dispute, some scholars believe that written form is an effective element of the change of labor contract, that is, the change of labor contract without written form does not meet the formal elements of the change, and the change should be considered invalid. As Professor Cheng Yanyuan said, the change of the labor contract is actually the act of the parties to the contract to redraft a new contract on the basis of the original contract, so it should be in written form like concluding a labor contract [7]. However, this paper holds that the employer and the employee have actually fulfilled the changed labor contract under the condition of oral consultation. If it is not conducive to the interests of the employee, it is not appropriate to deny the effectiveness of the change.
In addition to changing the written form of the labor contract, the employer should also pay attention to the rules and regulations of the unit. Rules and regulations refer to the rules for organizing labor and conducting labor management formulated by the employer according to law and implemented within the enterprise [3]. The Labor Contract Law stipulates that the employer shall establish labor rules and regulations to protect the labor rights enjoyed by workers. (1) but in the formulation of major issues concerning the vital interests of employees, should be determined through consultation with employees. So what is the nature of rules and regulations? Do rules and regulations have legal effect and can they bind workers? There are three kinds of regulation in theory: contract theory, regulation theory and compromise theory. According to the contract theory, rules and regulations are part of the labor contract, and when the labor contract comes into effect, the rules and regulations become part of the labor contract. However, the characteristic of the contract is that both parties agree that the rules and regulations shall be independently formulated by the employer. From this point of view, we can find that there are defects in the interpretation of rules and regulations in contract theory. According to the theory of laws and regulations, rules and regulations are formulated by employers authorized by the state, and the legal nature of rules and regulations can take effect without the consent of workers. However, laws are formulated and implemented by the state, so it is far-fetched to regard rules and regulations as a kind of regulations. As can be seen from Article 4 of the Labor Contract Law, the third statement is more in line with the reality in China. In fact, Article 4 of the Labor Contract Law divides the contents of rules and regulations into two categories, one is the major matters involving the vital interests of workers, and the other is the management regulations of employers. Reading the law, we can see that the content of the second kind of rules and regulations does not require the employer to negotiate with the laborer, and the employer has the right to formulate, modify and decide the second kind of content unilaterally. Therefore, eclecticism holds that the first kind of content can only take effect with the consent of the workers, and the second kind of content can take effect as long as the workers know it [8]. It can be seen that the law not only gives the employer the right to operate and manage, but also restricts its right to operate. The employer attempts to change the matters concerning the vital interests of the workers by unilaterally modifying the rules and regulations, that is, if the employer attempts to change the labor contract through the provisions of the rules and regulations, it must negotiate with the workers. The change of labor contract is related to the change of rights and obligations of both workers and employers. For the employer, changing the labor contract requires it to act in strict accordance with the law, for example, it is forbidden to use illegal means to force the laborer to reach an agreement with it in the agreed change; The statutory change shall not exceed the statutory limit for exercising rights; It is not allowed to arbitrarily adjust the positions of workers just for the benefit of enterprises. For workers, it is more important to strengthen their writing consciousness and actively safeguard their vital interests.