第一期:灵活用工
第二期:停工停产
第三期:解除劳动关系:客观情况发生重大变化
第四期:解除劳动关系:经济性裁员
第五期:终止劳动关系:提前解散
本期疫情劳动法语音课堂由北京竞天公诚律师事务所上海分所连煜雄律师就停工停产问题与大家进行探讨和分享。
停工停产
Suspension of Operation
国家和地方的法律法规主要规定了停工停产期间用人单位如何支付工资待遇的问题,对于停工停产的适用条件、实施程序、停工停产的范围等均未作出明确规定。实践中,对于这些法律法规没有明确规定的内容,通常被认为属于用人单位自主经营权决策范畴。比如,如果用人单位受疫情影响生产经营发生严重困难,企业无法为员工继续提供劳动条件的,可考虑根据自身情形决定停工停产。
In this class, we answer some frequently asked questions regarding suspension of operation:
Must there be a reason to suspend operation?
There must be a proper reason for suspension, such as amid the pandemic outbreak, lack of need for production due to decreasing orders, inability to operate due to traffic restrictions, etc.
在与停工停产有关的劳动争议案件中,裁审机构往往会主动审查企业实施停工停产是否具备合理理由。如果裁审机构认为企业停工停产的理由不合理或者员工能够证明企业属于恶意进行停工停产,实际上是为了逼迫员工主动辞职,以便实现变相裁员、逃避支付经济补偿金的非法目的,裁审机构将很有可能支持员工的相关主张,比如要求企业补足其正常工资标准与停工停产生活费之间的差额,或者同时以企业未按照劳动合同约定提供劳动条件为由,按照《劳动合同法》第38条的规定行使单方解除权,并要求用人单位支付经济补偿金。
In a labor dispute related to suspension of operation, the adjudication body will often examine whether there are reasonable grounds for the suspension. If not, or if the employee can prove that the suspension is a disguised layoff maliciously designed to force employee resignation and avoid severance pay, the adjudication body will likely rule in the employee’s favor. In this case, the employer may, for example, be required to compensate its employees for the difference between their standard salary and the living subsidy they receive during suspension. In addition, the employee may be entitled to terminate his or her employment agreement and claim severance, on the ground that the employer has failed to provide the agreed labor conditions and in accordance with Article 38 of the Labor Contract Law.
Could operation be partially suspended?
The current law prescribes no limit on scope of suspension. And it is unclear whether an enterprise can legally require only a portion of its employees (i.e. all employees in some departments or some employees in the same department) to suspend work.
在劳动争议案件中,裁审机构往往会对停工停产的范围进行重点审查,如果裁审机构认定企业的部分停工停产缺乏合理性,员工有权要求企业补足工资差额,或者同时依据《劳动合同法》第38条解除劳动合同,要求企业支付经济补偿金。
In labor disputes, however, the tribunal will often scrutinize the scope of suspension. If it finds a partial suspension to be unreasonable, employees would be entitled to the difference between their standard salary and the living subsidy they receive during the suspension, as well as to terminate their employment agreements and claim severance in accordance with Article 38 of the Labor Contract Law.
因此,企业在制定部分停工停产方案时,需结合实际情况审慎考量哪些岗位或者部门需要被纳入到停工停产的范围,以及确定的范围是否具备合理的理由(比如,确实由于某个生产车间或某条生产线的停滞而需要部分停工停产)。
Does the law require any particular procedure to carry out a suspension?
Since suspension of operation involves issues touching upon employees’ vital interest (such as adjustment to work schedule, rest, compensation, etc.), an enterprise planning a suspension is advised to follow the consultation and public notification procedures outlined in Article 4 of the Labor Contract Law. An enterprise deciding to suspend operation should explain to employees, in writing, (1) the reason for and length of the suspension, (2) personnel and positions that will be affected, (3) tasks to be fulfilled, and (4) compensation standard during the suspension period. The enterprise must also hear its employees’ opinions and answer their questions.
另外,虽然法律法规并未明文要求企业应提前向劳动保障部门报备停工停产,我们了解到部分地区的劳动部门在操作口径上要求企业提前告知停工停产计划。结合我们的实操经验,我们建议企业在决定停工停产之前与所在地劳动保障部门进行事先沟通,获取支持,并在其指引下实施停工停产的相关工作。
How should employees be paid during a suspension?
For a suspension that is within one pay period, the enterprise must pay the rates stipulated in the employment contract. If the suspension lasts longer, the enterprise may pay based on the amount of work done according to a new rate agreed with its employee (but it cannot be lower than the local minimum rate). For employees without work, the enterprise should pay a living subsidy in accordance with local standards, which vary from region to region. In Shanghai, the subsidy must not be less than the city’s minimum wage. In Jiangsu and Zhejiang provinces, it should be no less than 80% of the local minimum wage.
对于“工资支付周期”的理解,由于国家层面和大多数地区的法律法规均未作出明确界定,实践中争议较大。实践中主要存在三种解读;1)“工资计薪周期”;2)“工资发放周期”;3)停工停产之日起一个自然月。
However, there is considerable dispute surrounding what constitutes a “pay period” due to lack of a clear legal standard at the national level and in most regions. In practice, a pay period is interpreted based on one of the following: (1) the calendar period in which the employee is scheduled to perform work; (2) the calendar period in which the employer is supposed to pay its workers; or (3) the calendar month following the date of suspension.
在司法实践中,在当地没有明确规定的前提下,裁审机构一般都会支持和尊重用人单位自行决定的对工资支付周期的界定。不过,我们提醒企业应至少做到遵循以往的工资发放惯例,避免采取临时变更工资支付周期(例如,将月薪制改为周薪制)以达到尽快进入停工停产的第二个工资支付周期的方式来损害员工的合法权益。另外,从风险控制的角度,我们也建议企业结合自身情况在其制定的停工停产方案中明确本企业“一个工资支付周期”的具体期限以及对应工资待遇标准。
Should the living subsidy during suspension incorporate the social insurance premium and housing provident fund paid by employees?
Laws at the national level are silent on this issue. Some regions (particularly the Zhejiang Province) take the view that the living subsidy during suspension should include the social insurance premium and housing provident fund paid by employees, while others (such as Shanghai and the Jiangsu Province) believe they should not.
我们建议企业事先查询其所在地是否对此有明确的地方规定,如有则参照执行;如果没有,企业可以咨询所在地劳动保障部门以了解当地的实操口径。另外,从风险控制的角度,企业也可将生活费是否包含个人缴纳的社保和公积金的问题明确列入停工停产方案中,与员工充分沟通和协商。
Could employees terminate their employment agreements and claim severance (on the ground that the employer, by suspending operation, has failed to provide the agreed labor conditions or to fully and timely pay salary) in accordance with Article 38 of the Labor Contract Law?
Should the period of suspension be excluded when calculating severance pay?
Suspension of operation may subsequently lead to a layoff. Under the Labor Contract Law, an employee’s severance pay should be calculated based on his or her average monthly salary in the 12 months prior to termination. Judicial opinions vary as to whether a period of suspension (with no or reduced salary payment) should be excluded from the 12-month time frame. Opponents argue that Article 47 of the Labor Contract Law does not explicitly require the 12 months be "normal working period". Proponents (typically Zhejiang Province) think the period should be excluded for the benefit of workers. Note that in some regions, such as Shanghai, courts in the same jurisdiction have opposite views on this issue: some support exclusion while others do not.
为降低风险,我们建议企业一方面要遵循当地的明确规定和司法实践倾向,另一方面,企业也最好能在员工的协商解除协议中或集体协商方案中将是否剔除的问题予以明确。
To reduce risk, we suggest that an enterprise act in accordance with local rules and practices, in addition to specifying the issue of exclusion in mutual termination agreements or group negotiation plans.