On November 24, 2017, the Ministry of Human Resources and Social Security announced the fifth batch of catalogues promulgating invalidation and abolition of documents, “Economic Compensation Methods for Violation and Termination of Labor Contracts” (Laborian [1994] No. 481) (hereinafter referred to as “No. 481”) "No. 481" was listed among them and was declared abolished. Then, what changes and influences does the abolition of Circular 481 bring to the labor union?
My point of view is that it has no effect.
1. The 20% and 50% increase in economic compensation has been replaced by 50%-100% of the compensation in the Labor Contract Law. The abolition of Circular 481 only confirms this fact again.
Articles 3 and 4 of Article 481 stipulate that if the unit deducts or unreasonably defaults on wages, refuses to pay overtime wages, and pays wages below the minimum wage, in addition to full payment or replenishment, an additional 25% of the economy is required. Compensation. Article 10 of Circular No. 481 stipulates that if the unit terminates the labor contract and fails to pay the economic compensation according to the regulations, in addition to the full payment, an additional 50% additional economic compensation shall be paid.
Article 85 of the Labor Contract Law stipulates that if the employer has the above-mentioned situation, the labor administrative department shall order the payment of labor remuneration, overtime pay or economic compensation within a time limit; if the labor remuneration is lower than the local minimum wage standard, the difference shall be paid; If the payment is not made within the time limit, the employer shall be ordered to pay compensation to the employee according to the standard of 50% or more and 100% of the amount payable.
Compared with the provisions of Circular 481, there are three changes in the provisions of the Labor Contract Law: (1) regarding the name, the economic compensation is renamed as compensation; (2) about the standard, 25%, 50% of the increase ratio Adjusted to 50% to 100%; (3) With regard to the procedure, the preconditions for “the labor administrative department ordered to pay within the time limit but not paid within the time limit” were added.
According to the law applicable to the law of "the new law is better than the old law" and "the superior law is better than the lower law", after the implementation of the Labor Contract Law on January 1, 2008, Articles 3, 4 and 10 of Article 481 The 20% and 50% economic compensation provisions have been replaced by the 50%-100% provisions of Article 85 of the Labor Contract Law. Therefore, the abolition of the 481 document this time is merely a confirmation of this fact.
Second, the "economic compensation segmentation calculation" will not change.
No. 481 was declared abolished. Does it mean that the method of segmentation calculation for the termination or termination of labor contract economic compensation has been reinstated, so that it is no longer necessary to calculate the working years before and after 2008?
Article 97, paragraph 3, of the Labor Contract Law stipulates that “the labor contract surviving on the date of the implementation of this Law shall be terminated or terminated after the implementation of this Law, and the economic compensation shall be paid in accordance with the provisions of Article 46 of this Law. Calculated from the date of the implementation of this Law; in accordance with the relevant regulations at the time before the implementation of this Law, if the employer should pay economic compensation to the workers, it shall be implemented in accordance with the relevant regulations at that time."
According to this stipulation, if a worker enters a job before December 31, 2007, he shall calculate the economic compensation for the termination or termination of the labor contract, and calculate it on the date of the implementation of the Labor Contract Law. The working years of the workers before December 31, 2007 shall be implemented in accordance with the relevant provisions of the time. In other words, the “relevant provisions” (herein No. 481) should apply as long as “at the time” (here, before December 31, 2007), and should not be affected by the abolition in 2017.
Therefore, the abolition of Circular 481 does not affect the segmentation calculation of the economic compensation for the termination of labor contracts. In calculating the economic compensation for the working years before December 31, 2007, the unit shall still be subject to the economic compensation for the termination of the labor contract and the inability to terminate the labor contract in accordance with the provisions of Circular 481. The limitation of monthly capping; the calculation standard of economic compensation refers to the monthly average wage of the enterprise in the 12 months before the termination of the labor contract under normal production conditions. Moreover, if the average monthly wage of the employee is lower than the average monthly salary of the enterprise, it shall be The average monthly salary of the enterprise is calculated.
3. The medical subsidy system for the sick workers to terminate the labor contract is not affected by the abolition of Circular 481.
Article 6 of Document No. 481 stipulates that if a worker suffers from illness or is not injured by work, and the labor appraisal committee confirms that he cannot perform the original work, nor can he engage in work otherwise arranged by the employer and terminates the labor contract, the employer shall The working years of the unit will be paid an economic compensation equivalent to one month's salary every year, and a medical subsidy of not less than six months' salary will be issued. If you are seriously ill, you should increase your medical subsidy. The increase in serious illness is not less than 50% of the medical subsidy. The increase in terminal illness is not less than 100% of the medical subsidy.
Circular 481 was declared abolished. The Labor Law and the Labor Contract Law do not contain provisions on medical subsidies. Does it mean that the medical subsidy system is of course abolished?
The answer is not the case. Because Circular 481 is not the only basis for establishing the medical subsidy system, whether it is the other departmental regulations or normative documents of the former Ministry of Labor that are still valid today, or local regulations, the sick workers will be terminated or terminated. The provisions for medical subsidies should be paid, and are briefly listed as follows:
Article 35 of the former Ministry of Labor's "Opinions on the Implementation of the Labor Law of the People's Republic of China" (Lao Fafa [1995] No. 309) stipulates that employees who have long sick leave can engage in the original work after the medical treatment expires. The labor contract may continue to be performed; if the original work cannot be performed after the medical treatment expires or if the work is not performed by the employer, the labor appraisal committee shall refer to the work injury and occupational disease disability identification standards for labor ability appraisal. Those who are identified as one to four grades shall withdraw from the labor position, terminate the labor relationship, go through the formalities of retirement due to illness or non-work-related injuries, and enjoy the corresponding retirement retired treatment; if they are identified as five to ten, the employer may terminate the labor. Contracts, and pay economic compensation and medical subsidies as required.
Article 3 of the original Ministry of Labor's "Response to the request for certain problems such as the management of illness or non-work-related injuries during the medical treatment period" (Laboratory Letter [1996] No. 40) stipulates that "the sick employee terminates the labor contract at the expiration of the contract." At the time, the employer shall pay the medical subsidy for the worker not less than six months' salary in one lump sum. For employees who are seriously ill or terminally ill, the employer may increase the medical subsidy appropriately."
Article 22 of the Notice of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System (Lao Fa Fa [1996] No. 354) stipulates that if a worker suffers from illness or is not injured by work, if the contract expires, the employer shall Medical subsidies for not less than six months' salary; for medically ill or terminal illnesses, medical subsidies should be appropriately increased.
Article 2 of the Notice of the General Office of the Ministry of Labor on the Interpretation of the Issues Related to the Document No. 354 of the Ministry of Labor [1996] stipulates that Article 22 of Document No. 354 “The worker is sick or not injured by work, and the contract expires. In the case of a contract, the employer shall pay a medical subsidy of not less than six months' salary. This means that when the labor contract expires, the laborer terminates the labor contract, and the medical expiration or the medical end is identified as 5-10 by the labor appraisal committee. The employer shall pay a medical subsidy of not less than six months' salary. If the appraisal is 1-4, it shall go through the formalities of retirement and resignation, and enjoy retirement and retired benefits.
In addition to the above-mentioned departmental regulations and normative documents of the former Ministry of Labor, Jiangsu Province local regulations also have clear provisions on medical subsidies. Article 34 of the Jiangsu Labor Contract Regulations stipulates that workers are sick or not injured due to work, and the medical period If the original work cannot be carried out after the completion of the work, nor can it engage in appropriate work arranged by the employer separately, the employer may terminate or terminate the labor contract according to law and provide economic compensation. If the laborer confirms the loss or partial loss of labor ability through the labor ability appraisal committee, the employer shall also give the worker a medical subsidy not less than the six-month salary of the employee. Medical subsidies should also be increased for serious illness or terminal illness. The increase in serious illness is not less than 50% of the medical subsidy, and the increase in terminal illness is not less than 100% of the medical subsidy.
Therefore, even if the 481 document is declared abolished, due to other departmental regulations, departmental normative documents and local regulations that are still valid, the medical subsidy fee is clearly stipulated, and the medical staff of the sick worker will be released before the further regulations are promulgated by the state. The medical subsidy system for terminating labor contracts should continue to be implemented.
Attachment: The Ministry of Labor's "Measures for Economic Compensation for Violation and Termination of Labor Contracts" (Labor Department [1994] No. 481)
Article 1 In order to standardize the economic compensation standards for laborers who violate and terminate labor contracts, these Measures are formulated in accordance with the provisions of the Labor Law of the People's Republic of China.
Article 2 The economic compensation for laborers shall be paid by the employer at one time.
Article 3 If the employer deducts or unreasonably defaults on the wages of the laborer, and refuses to pay the laborer to extend the salary of the working time, in addition to paying the wages of the laborer in full within the prescribed time, it is necessary to add the equivalent of wages. Twenty-five percent of the economic compensation.
Article 4 If the employer pays the wages of the workers below the local minimum wage, it shall pay an economic compensation equivalent to less than 25% of the amount while supplementing the substandard portion.
Article 5 Where the parties to a labor contract agree to terminate the labor contract by the employer, the employer shall, according to the working years of the employee in the unit, issue an economic compensation equivalent to one month's salary for each full year, up to a maximum of ten. Two months. If the working time is less than one year, the economic compensation will be paid according to the standard of one year.
Article 6 If a laborer suffers from illness or is not injured by work, if the labor appraisal committee confirms that he cannot perform the original work or can not engage in the work separately arranged by the employer and terminates the labor contract, the employer shall, according to its working years in the unit, An economic compensation equivalent to one month's salary is paid every full year, and a medical subsidy of not less than six months' salary is also payable. Medical care subsidies should also be increased for serious illness and terminal illness. The increase in serious illness is not less than 50% of the medical subsidy, and the increase in terminal illness is not less than 100% of the medical subsidy.
Article 7: Workers are not qualified for work. After training or adjustment of their jobs, they are still unable to perform their duties. If the employer terminates the labor contract, the employer shall, according to the number of years of work in the unit, be issued for each full year of work. The economic compensation for one month's salary is no more than twelve months.
Article 8 The objective situation on which the labor contract is based is subject to major changes, resulting in the failure of the original labor contract to be fulfilled. If the parties concerned cannot reach an agreement on the change of the labor contract and the employer terminates the labor contract, the employer shall be the employee in the unit. The number of years of work, the working time is paid to the economic compensation equivalent to one month's salary every year.
Article 9 If an employer is on the verge of bankruptcy for statutory rectification or if there are serious difficulties in production and operation, and the personnel must be reduced, the employer shall pay the economic compensation according to the number of years of the reduced personnel working in the unit. For each full year of work in this unit, an economic compensation equivalent to one month's salary is paid.
Article 10 After the employer terminates the labor contract and fails to provide economic compensation to the laborer in accordance with the provisions, in addition to the full amount of economic compensation, it shall pay an additional economic compensation of 50% of the amount of the economic compensation.
Article 11 The wage calculation standard for economic compensation in these Measures refers to the average monthly salary of the workers in the 12 months prior to the termination of the contract under normal production conditions.
When the employer terminates the labor contract in accordance with Articles 6, 8 and 9 of these Measures, if the average monthly wage of the employee is lower than the monthly average wage of the enterprise, it shall be paid according to the monthly average wage of the enterprise.
Article 12 Economic compensation shall be paid out in the cost of the enterprise and shall not occupy the welfare expenses that the enterprise shall withdraw according to the prescribed ratio.
Article 13 These Measures shall be implemented as of January 1, 1995.
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