Legal effect of tripartite agreement
First of all, the tripartite agreement is an intentional agreement signed by the school witness, graduates and employers. It has legal effect, but it cannot replace the labor contract. From the legal point of view, "tripartite agreement" is an "appointment" in civil law and contract law. In principle, it is applicable to China's civil law and contract law, and is not bound by labor contract law and other laws. Of course, the signing of the tripartite agreement cannot violate China's labor laws and regulations and related employment policies. If there is a breach of contract, the liability for breach of contract will be investigated in accordance with the corresponding provisions of the civil law.
Secondly, after the graduates report to the unit and the employer formally accepts the graduates, the tripartite agreement is automatically terminated, and then the unit signs a formal labor contract with the graduates. Once the labor contract is signed, the employment agreement becomes invalid; Where the contents of the labor contract conflict with the tripartite agreement, the labor contract shall prevail.
The tripartite agreement is not only the basis for the state to count the employment rate of college students, but also the proof of the dispatch certificate issued by the state. Only after signing the tripartite agreement will the school issue dispatch cards to students after graduation. After the graduates report to the unit with the dispatch card, they begin to calculate the length of service and have the status of cadres.
Problems needing attention in signing tripartite agreement
Although the tripartite agreement is not bound by the Labor Contract Law, it is legally signed and bound by the Contract Law. Therefore, it has corresponding legal effect, and some problems should be paid attention to when signing.
1. When filling in the name of the employer, be sure to pay attention to whether it is consistent with the name on the effective seal of the employer. If not, the agreement is invalid. When students fill in the professional name, it should be consistent with the professional name of the academic affairs office of the school and cannot be abbreviated.
2. Correctly distinguishing the agreement period, probation period and probation period is directly related to the maintenance of graduates' rights and interests.
Agreement period: from the time when graduates sign employment agreements with employers to the time when both parties sign labor contracts or agreements are terminated. During the agreement period, both parties have confirmed their intention to work, but no formal labor relationship has been established.
Probation period: mainly labor contracts. The time for graduates to sign labor contracts with employers should be before the probation period, not after it. In the past, in order to avoid responsibility, some units often did not sign probation labor contracts with graduates. Once the probation period expires, find various excuses to dismiss. According to relevant regulations, the probation period should be consistent with the term of the labor contract.
If the probation period is stipulated in the contract, the probation period shall not be stipulated separately. The probation period for graduates is 6 months to 12 months, counting from the date of registration.
3. Probation period and time of probation period. Foreign companies, joint ventures and private enterprises generally adopt a probation period, which can be 1 month or 3 months according to the length of the contract. Usually, the probation period is 3 months, and shall not exceed 6 months. State organs, universities and research institutes generally take a probation period, which is generally one year. Take only one probation period and probation period, and cross out the other one.
4. Many units bind students with high liquidated damages in order to keep them. Students should try their best to minimize the liquidated damages during negotiation, which usually does not exceed 5,000 yuan. However, the "Labor Law" stipulates that "the employer may stipulate the non-competition clause with the employee in the labor contract or confidentiality agreement, and agree to give him economic compensation every month during the non-competition period after the termination or termination of the labor contract. If the laborer violates the non-competition agreement, he shall pay liquidated damages to the employer in accordance with the agreement. Except for the circumstances stipulated in the above two laws, the employer shall not agree with the employee that the employee shall bear the liquidated damages. " Therefore, students should strive to cancel the stipulation of liquidated damages.
Whether the tripartite contract has legal effect, the answer is yes. One party in a tripartite agreement is usually a middleman or a witness. As long as the tripartite contract concluded does not violate the relevant laws and regulations, and all three parties have the conditions to conclude the contract, it is regarded as a valid contract. Didn't say that tripartite contracts are uncommon and invalid. Therefore, both employers and graduates are not allowed to terminate the tripartite contract without reason, otherwise they will bear certain responsibilities.
legal ground
Notice on amending some opinions:
First, the positioning and role of the employment agreement
Employment agreement is a written agreement between graduates of ordinary colleges and universities and employers to establish employment relations within a prescribed period of time after two-way selection before formally establishing labor and personnel relations, and to clarify the rights and obligations of both parties; It is an important evidence that the employer confirms that the relevant information of graduates is true and reliable and receives graduates; It is an important basis for colleges and universities to manage graduates' employment, prepare employment plans and handle employment settlement procedures for graduates.
Four, the basic content of the employment agreement
1. The basic information of college graduates should include: name, gender, ID number, major, educational system, graduation date, education background, contact information, etc.
2. Basic information of the employer, including: name of the employer, organization code, nature of the employer, contact person and contact information, file receiving place, etc.
3. Relevant contents agreed between college graduates and employers may include: work place and post; The place where the household registration is moved; Liability for breach of contract; The automatic invalidation clause and termination clause of this agreement; Other matters agreed by both parties.
4. College graduates and employers sign and seal to promise to fulfill the agreement, relevant information and opinions of colleges and universities.
5. Clarify the scope of application of the agreement: that is, recruit non-directional graduates (including higher vocational (junior college) graduates, undergraduate graduates and graduate students) within the national plan; Directional students and entrusted students are employed according to the directional entrustment agreement, and the employment agreement is not used.
All localities can increase relevant content according to actual needs.