China: 劳动法最前线——从公司人事的角度看劳动法动向 第 163 回劳动人事争议疑难问

Last Updated: 20 October 2017
Article by Broad & Bright
Most Read Contributor in China, October 2017

江苏省劳动人事争议疑难问题研讨会纪要发布

2017 年7 月,江苏省劳动人事争议仲裁委员会和省高级人民法院民-庭、省总工会法 律部、省人社厅、部分市级劳动调解仲裁部门召开了会议,并发布了《江苏省劳动人事争议 疑难问题研讨会纪要》(以下简称"纪要")、纪要中值得关注的内容包括以下几点。

1、涉及互联网平台的劳动关系确认问题

对于互联网平台企业与参与平台的相关个人之间的劳动关系确认问题,纪要认为应把握 保护劳动者权益与促进劳动力市场灵活性的平衡关系,综合考量用人单位网络平台的运营形 式、劳动者从业状况、网络平台对劳动者的管理程度、劳动者收入分配方式及劳动者是否独 立承担经营分险等因素,依法区分劳动关系和劳务关系。对于发挥联系中介作用的网络平台, 劳动者通过网络平台与企业建立工作联系关系,企业通过网络平台提供服务信息,并通过网 络平台收取管理费或信息费用的,不宜作为劳动关系处理。

另外,纪要指出,对于与互联网平台签订了承包合同、委托协议等,一般应从其约定来 认定双方的法律关系。如果双方关系符合原劳动和社会保障部《关于确立劳动关系有关事项 的通知》(劳社部发[2005]12 号)的要求,应认定双方存在劳动关系。

2、签订竞业限制协议的劳动者在职期间经营同类业务时的处理

纪要认为,对于该类劳动者,在职期间遵守竞业限制是其法定义务,在职期间违反竞业 限制规定与他人经营同类业务的,用人单位追究劳动者的违约责任应予支持。双方对违约金 有约定的,劳动者应当按照约定向用人单位支付违约金;双方对违约金没有约定的,违约金 数额可参照竞业限制约定的标准,并结合劳动者侵权行为的持续时间、造成的后果和实际损 失的情况进行综合判定。

3、停产放长假人员、离岗休养的未退休人员、保留劳动关系的

不在岗人员的补偿

《江苏省劳动合同条例》第 14 条规定,对于企业停产放长假人员、未达到法定退休年 龄的离岗休养人员以及其他协商保留劳动关系的不在岗人员到新的用人单位工作,双方可以在劳动合同中对支付经济补偿作出例外约定。纪要指出该等例外约定仅适用于用人单位依照 法定情形解除或终止劳动合同的情形,如果用人单位违法解除或终止劳动合同,需要依法承 担赔偿责任。

4、不计入工作年限的劳动合同中止期间

关于该问题,纪要中指出,符合《江苏省劳动合同条例》第三十条规定劳动合同中止情 形的,劳动合同中止期间不计算为劳动者在用人单位的工作年限,不计入《劳动合同法》第 十四条第一项规定的"连续工作满十年"可以签订无固定期限劳动合同的期间,也不计算为支 付劳动者经济补偿的年限。具体而言,包括以下几种情形:

  1. 经双方当事人协商一致的;
  2. 劳动者因涉嫌违法犯罪被限制人身自由的;
  3. 劳动合同因不可抗力暂时不能履行的;
  4. 法律、法规规定的其他情形。

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