There Can Be Some Adjustment.

In March 25th, the 2017 annual meeting of Beijing labor and social security law society and its member congress were held in Beijing. The annual meeting discussed the current hot issues in the field of labor disputes. Among them, whether employers have the right to pay attention to workers on the one hand is most concerned.

Shen Jianfeng, an associate professor of China Institute of Industrial Relations, told the workers' daily that the content of the work is one of the essential clauses of the labor contract, and the change is the change of the content of the labor contract. In the judicial practice, the common cases of post adjustment mainly include three kinds of situations, namely, the workers who are sick or are not injured by the public, can not engage in the original work at the end of the medical treatment, the workers are not competent for the work, and the objective situation changes, resulting in the labor contract can not be performed. Labor Contract Law "The fortieth employer can be reflected in the provisions of the employee's rescission of the labor contract, but it does not indicate that the above situation is that the employer can adjust the position of the worker.

Li Jun, vice president of the six court of the first intermediate people's Court of Beijing, believes that in recent years, employers have unilaterally adjusted their jobs, and workers refuse to adjust. Whether the employer has the right to adjust the work position of the workers, what is the basis of the legitimacy and rationality of the adjustment, and becomes the focus of this kind of labor dispute.

In this regard, Wang Dan, a lawyer of Kyoto law office in Beijing, said that whether the employer has the right to unilaterally adjust posts or to exercise the right to unilaterally adjust posts in what circumstances and scope is essentially a balance between the autonomy of the employer and the right to employment stability.

"Last year, we organized a research group on this issue. The research team found that the judicial practice field mostly adopted the objective criteria for the reasonableness judgment of the employer's job placement, that is, whether the employer has the objective conditions of adjusting posts, such as enterprise migration, industry shrinkage or even loss. On the subjective side, whether the employing unit constitutes malicious retaliation is also a consideration. However, because of the discretion of the referee and the form of case representation, it is impossible to form a unified standard. Li Jun said.

Reporters learned from the annual meeting, the Beijing high court, Beijing Arbitration Commission recently issued "on the" Labor dispute A summary of the Symposium on Legal Application of the case (three) (Draft for solicitation) "(hereinafter referred to as" draft for comment ") indicates that the employer and the worker agree to adjust the work position of the laborers according to the changes in production and operation conditions, and the employer can prove that the production and operation conditions are changed, and the workers' posts can be reasonably adjusted according to the agreement between the two parties. In the absence of a job contract in the labor contract, the employing unit shall, on the basis of justified reasons, adjust the work position of the worker belonging to the employing unit's autonomous employment according to the needs of production and operation.

The draft also pointed out that Employing unit Where a labor contract is clearly stipulated in the labor contract signed with the laborer, when the objective situation of the employer's production and operation has not changed significantly, the employer shall adjust the work position of the employee to a breach of contract and cause losses to the worker.

In this regard, Wang Dan lawyer told reporters that from the "draft" can be seen that employers based on production and operation and enterprise management needs, can be adjusted to the posts of workers. However, in order to prevent employers from abusing this right, the solicitation paper has limited the right to unilaterally adjust the posts of employers. However, the reporter noted that the draft did not give specific explanations to the specific contents of "changes in production and operation".

In this regard, Li Jun told reporters that the Beijing Municipal Intermediate hospital's research group put forward corresponding legislative proposals through in-depth research. In the process of labor contract fulfillment, there will inevitably be the loss of jobs. In the following two cases, it is reasonable for the employers to have a reasonable basis for adjusting their salaries and salaries to the workers. First, the production and operation of the employers are affected by the macroeconomic situation, the adjustment of industrial structure, the orientation of the state policies, and so on. The two is the adjustment of the enterprises independently based on their own development needs, which mainly refers to the merger and withdrawal of the enterprises caused by the merger or reorganization of the enterprises, the withdrawal of the work departments, and the cancellation of relevant posts.

In addition, the research group also suggests that if the labor contract stipulate that the employer can adjust the work position of the workers according to the changes in the production and operation of the enterprises, the employer can reasonably consider the adjustment of posts for the workers from the following aspects: first, whether there is the necessity of adjusting the posts; that is, the employer should provide evidence to demonstrate the changes in the production and operation of the enterprises; two, the adjustment of the workers' posts is not aimed at a specific worker, but rather the adjustment of the scale caused by the overall business strategy adjustment of the employing units; three, the adjustment of the employers' posts to the workers does not cause obvious inconveniences to the laborers, including the treatment of workers, duties, the matching degree between the new posts and the laborers' abilities, etc.

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