China: On The Forefront Of Labor Law – The Comparison And Explanation Of Labor And Employment Law And Local Labor Regulation, No. 141 Work Permit System For Foreigners In China In NNA

Last Updated: 25 January 2017
Article by Broad & Bright

 劳动岗位和劳动报酬作为劳动合同的核心内容,其变更原则上应由用人单位与员工协商

一致并以书面方式进行。而实践中,出于经营、管理的需要,用人单位会遇到需要对不符合岗位要求的员工进行调岗、调薪的情况。用人单位是否有权进行前述调整?实际操作中又该

注意哪些问题?

一、用人单位单方面进行调岗、调薪的法律依据

1、根据法律规定进行调岗、调薪

根据《劳动合同法》第四十条规定,劳动者不能胜任工作,经过培训或者调整工作岗

位,仍不能胜任工作的,用人单位提前三十日以书面形式通知劳动者本人或者额外支付劳动者一个月工资后,可以解除劳动合同。该条款明确了在员工不能胜任工作的情况下用人单位有权对其进行岗位调整。

2、根据用人单位的规章制度及合同约定进行调岗、调薪

根据《劳动法》第四条及《最高人民法院关于审理劳动争议案件适用法律若干问题的解释》规定,用人单位通过民主程序制定的规章制度,不违反国家法律、行政法规及政策规定,并已向劳动者公示的,可以作为人民法院审理劳动争议案件的依据。因此,用人单位有权在规章制度中对用人单位单方面调岗、调薪的情形进行规定。在规章制度合法生效的情况下,用人单位有权依据该规章制度对员工进行调岗、调薪。

除规章制度外,用人单位也可在劳动合同中约定,其有权根据实际经营情况和公司的规章制度对员工的工作岗位进行调整。但需注意的是,劳动合同中的约定不能单独作为用人单位单方面调岗、调薪的合法依据。实践中仍需与规章制度结合适用。

二、实践中应注意的问题

尽管法律认可了用人单位在一定条件下有权单方对员工进行调岗、调薪,但这并不意味着该权利可以任意行使。实践中还必须满足以下条件,才可能被认定为合法、有效的单方调岗、调薪行为:

1、用人单位做出调岗、调薪所依据的劳动合同及规章制度必须合法、有效,且规章制

度已经根据《劳动合同法》第四条的规定向全体员工进行公示。

2、用人单位履行了告知义务,即用人单位明确告知员工其岗位的具体职责,以及判定

能否胜任岗位的考评标准,以使得员工对其工作职责、权利界限有明确的认知并能通过相关的制度对其行为后果产生合理预期。

3、合理性,包括规章制度的合理性,以及岗位调整的合理性。规章制度的合理性主要包括制度是否公平、是否过于苛刻等。岗位调整的合理性,主要指调整后的岗位在岗位职责、工作内容以及工作性质上是否与原岗位存在实质性差别,是否超过了员工的职能范围等。例如在上海地区的一个案例中,员工原本的岗位为电脑工程师,用人单位以其未能胜任职位为由将其职位调整为出纳,尽管用人单位适用的规章制度合法有效,且已经履行了告知义务,

法院仍以岗位调整不合理为由判定该岗位调整无效。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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