Foreword:

Before taking this course, I was attracted by the words "labor law" and "employment". You know, as contemporary college students, we are different from the planning era dominated by government distribution. The employment situation we are facing today is more severe than before, with more intense competition and more complicated relations. How to protect themselves correctly and protect their legitimate rights and interests to the maximum in the complex society where competition, challenge and cooperation coexist has become an urgent problem for contemporary college students who are about to enter the society. However, the school has not specially set up such a compulsory course of public law for us, so that college students can learn how to use legal means to solve disputes before entering the society and reduce the cost of solving labor disputes in the future.

Here, first of all, I would like to thank Teacher TF from the Law School. The course "Labor Law and Employment of College Students" provides us with such an opportunity. Her patient and meticulous explanation made us know a lot about the Labor Law and the Labor Contract Law related to our own interests. Sometimes Teacher T explains a law to us, and after listening to it, we will feel suddenly enlightened: You can still protect your legitimate rights and interests in this way! Especially in the last class, Teacher T hired a senior lawyer as a legal adviser in a company to explain a series of real legal cases he encountered and handled in real life, and introduced us to relevant laws and regulations at the same time, which made our understanding of laws and regulations deeper. This teaching method not only enhances students' interest in learning, but also brings our understanding of laws and regulations back to life literally.

Finally, at the end of this course, Mr. Tang asked us to write a paper about our understanding and feelings about learning this course. You can talk about your views on a certain law in laws and regulations, or you can write down your feelings about learning this course.

As an undergraduate, combined with the characteristics of this course, I want to write an article about college students' employment and the resulting labor contract disputes. But I've thought about it for a long time, and I feel that the new labor contract law has been in effect for almost two years. In the course of these two years' operation, it should be said that it has gradually matured. As an undergraduate, it should be said that it is relatively not particularly difficult to solve labor disputes by learning and mastering the correct methods. Therefore, what this article wants to talk about is the application of the Labor Contract Law in solving the labor disputes of migrant workers. As we all know, migrant workers have become an important force supporting the industrialization development of China. According to the survey, migrant workers account for 58% in the secondary industry, 52% in the tertiary industry, 68% in the processing and manufacturing industry and 80% in the construction industry. The rapid economic development of China for more than 30 years cannot be separated from the contribution of migrant workers. However, I personally think that the protection of the rights and interests of migrant workers is still quite weak. It is unfair that those who have contributed the most to the reform enjoy the least results. This paper discusses this related problem. This is the preface to the opening of this article. XX, 2009 1 1 month

Text:

How do migrant workers safeguard their rights and interests through labor contracts?

In the preface, I have used a lot of words to explain the writing direction and reasons of this article, so I won't go into details here, and I will talk frankly about the topic. )

It is also said that Article 10 of the Labor Contract Law establishes labor relations, and a written labor contract shall be concluded. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. "

Article 14 If the employer fails to conclude a written labor contract with the employee within one year from the date of employment, it shall be deemed that the employer has concluded an open-ended labor contract with the employee.

"Article 82 If an employer fails to conclude a written labor contract with the employee for more than one month and less than one year from the date of employment, it shall pay the employee twice the monthly salary. If the employing unit violates the provisions of this 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. "

It can be seen from these regulations that many of them are aimed at safeguarding the legitimate rights and interests of workers, urging employers to sign labor contracts with workers through legal means, and attaching certain measures as punishment for employers not signing labor contracts with workers according to law. I checked the relevant legal knowledge online and learned that migrant workers have also been included in the new labor contract law, so I have a question: migrant workers, as a group with a low level of knowledge and education, are generally weak in their awareness of rights protection and often do not realize that their rights and interests have been damaged; And even if they are aware of the boss's illegal behavior, many migrant workers can only take the practice of swallowing their words. So how can we ensure that when the rights and interests of migrant workers are damaged, the law can intervene in time to protect their rights and interests?

Let me talk about the signing of labor contracts for migrant workers. Many of my relatives are migrant workers, including my parents. Most of them work on the construction site, and some have been working on the construction site for almost a year. As far as I know, the boss never signed a labor contract with them, and they didn't even realize that I, a farmer moving bricks on the construction site, could still sign a contract with the boss? This should be related to the popularization of law in our country. I used to think, including now, that China is not qualified to be a country ruled by law. Although the media and the government flaunt the rule of law, the fact is another matter. Anyway, according to Article 82 of the Labor Contract Law, if the boss fails to sign a labor contract with them for more than one month and not more than one year, he should pay double wages to the workers, but in fact they still get so much wages. As migrant workers, you can't count on double indemnity at all. Because they need this job, there are too many migrant workers in China, and the boss will say, "If you want to sign a labor contract, just go, someone can." . The boss evaded responsibility by not signing labor contracts with migrant workers. At this time, migrant workers, as vulnerable groups, seem unable to defend their rights. From a practical point of view, at this time, for people like them, is the law invalid?

The reader may say, "At this time, the law has not expired. We can use legal means to force bosses to sign labor contracts with migrant workers. The Labor Contract Law also stipulates penalties for employers who do not sign labor contracts with workers. " Having said that, what is the basis for law enforcement at this time?

Here comes another question. This is how migrant workers prove that they can get double wages, which is also a prerequisite for punishing their bosses. As mentioned above, the condition of getting double salary is that the laborer has to prove that he has worked for the boss for more than one month and the boss has not signed a contract with him. At this time, the proof is generally carried out by the workers, such as the transfer printout given to them by the employer on the salary card, the salary slip when paying the salary, and the confirmation of the work colleagues. Many migrant workers, such as my parents, get their wages not by bank transfer, but by the contractor sitting in the office for one day every month. Migrant workers queue up to get their wages, sign off after they get them, and there is no pay slip (the signature sheet after they get their wages is also kept by the boss). It can be said that they have no written evidence to prove that they have worked here for more than a month, or even that they have worked here. At this time, it seems that only colleagues at work can prove it. But as migrant workers, the mobility is too great, and many people leave in two or three months. Most of them come from all over the world, have no fixed abode and work everywhere. The time, energy and economic expenditure required for obtaining evidence are not worth the loss for migrant workers.

From what has been discussed above, we can see that it is difficult for farmers to sign contracts with their bosses, and it is difficult for migrant workers to prove their legitimate rights and interests. When they have labor disputes with their employers, they have not signed contracts. !

Here, I don't agree with the argument of some people on the Internet (which I noticed when consulting the relevant materials of the Labor Law), that is, in view of the current situation in China, there are a large number of migrant workers and special groups, and a labor contract law for migrant workers is specially formulated to protect the rights and interests of migrant workers. My objection: Once this is done, it is tantamount to artificially dividing the workers in the same country into two types, just like the household registration management system promulgated in the 1950s and 1960s, which artificially divided the people of China into urban people and rural people. Some people can only be farmers when they are born, and they can't enjoy the same welfare and state relief as urban people. Why are China people born in the same land, but born with different identities? A series of problems brought about by this are now emerging, such as children entering school, buying a house, and buying a hukou corruption. Moreover, there is no doubt that the new labor contract law, if seriously implemented, will protect the legitimate rights and interests of workers. As for why it has not been well implemented in migrant workers, I think it has something to do with the government's ruling thinking and law enforcement, and even the subconscious priority thinking. If we enact another labor contract law for migrant workers, it is inevitable that there will be suspicion of alternative discrimination. Whether this is done for the better management of the competent authorities or for the protection of the rights and interests of migrant workers can be said to be both, but the labor contract law for migrant workers will certainly not have as many provisions to protect workers as the new labor contract law.

The second reason I disagree with is related to the household registration management system mentioned earlier. It is precisely because there are many irrationalities in the household registration management system that more and more voices are calling for cancellation or even abolition. If the household registration management system is naively abolished in the future, there will be no legal basis for artificially defining China people as rural people and urban people, that is, China people will never be divided into urban people and rural people, both of whom are China people. So how to define migrant workers at this time? If the Labor Contract Law for Migrant Workers is really enacted, what position will this law be in?

In my opinion, instead of formulating a labor contract law for migrant workers, it is better to set up a government department to supervise the implementation of the labor contract law for migrant workers' labor groups. The responsibility of this department is to safeguard the legitimate rights and interests of migrant workers in accordance with the Labor Contract Law. Compared with making a special law to protect the rights and interests of migrant workers, setting up such a special department will have greater flexibility.