I. What is an "invalid labor contract"
An invalid labor contract refers to a labor contract signed by the parties but not recognized by the state.
The forms of invalid labor contracts are:
(1) Labor contract that violates laws and administrative regulations.
(2) Labor contracts concluded by fraud or threat.
If, when concluding a labor contract, one party deliberately conceals the real situation or deliberately creates false appearances to deceive the other party, resulting in the other party being deceived, and thus agreeing to conclude a labor contract, it is a contract concluded by fraudulent means. Threat means that one party threatens to force the other party to conclude a labor contract against his will by acts that may endanger the personal and property safety of the other party. No matter the labor contract concluded by fraud or threat, it violates the principle of labor contract conclusion; Its consequence is that it infringes on the rights and interests of one party, so this kind of labor contract has no legal effect.
(3) The employer exempts itself from legal liability and excludes the invalidity of the rights of workers. The conclusion of a labor contract should follow the principle of fairness, the core meaning of which is to require the rights and obligations of the parties to a labor contract to be consistent. In order to protect the legitimate rights and interests of workers, employers are exempted from their own legal responsibilities, such as "no payment of economic compensation" and "illness and death have nothing to do with the enterprise".
Second, how to protect rights in case of labor dispute without signing a labor contract?
If there is no labor contract and there is a labor dispute, and the unit does not recognize the existence of labor relations, the laborer may first apply for arbitration to confirm the existence of factual labor relations.
If the employer has not signed a labor contract with the employee, it may refer to the following documents when determining that there is a labor relationship between the two parties:
(a) payment vouchers or records (payroll), the payment of various social insurance premiums;
(2) Work Permit, Service Certificate and other documents that can prove the identity issued by the employer to the employee;
(3) Employment records such as Registration Form and Application Form filled out by employees;
(4) attendance records;
(5) Testimonies of other workers, etc.
Labor contract is not the only condition for the existence of labor relations. Although the factual labor relations are not standardized, they are also protected by law.
3. Is it illegal not to sign a labor contract at work?
It is illegal to go to work without signing a labor contract.
A labor contract is an agreement between employers (including enterprises, institutions, state organs, social organizations, etc.). ) determine labor relations with workers and clarify mutual rights and obligations. Enterprises must abide by the provisions of national policies and regulations and adhere to the principles of equality, voluntariness and consensus when signing labor contracts with hired workers; The labor contract must be signed in writing; The contents of a labor contract must be complete and accurate.
The labor contract signing procedure is as follows:
1. The subject of a labor contract consists of a specific employer and a worker. One party to a labor contract is an employer such as an enterprise, institution, organ or organization, and the other party is the laborer himself;
2. Both parties to a labor contract must have the qualification of contract subject. Employers should have legal personality, and private enterprises should mainly have citizenship;
3. Workers must have the ability to work and work, be healthy, have a junior high school education or above, and perform well in reality;
4. The draft labor contract is generally put forward by the employer to solicit the opinions of the hired workers; It can also be handled by the personnel department of the employee and the administrative representative of the enterprise;
5. Before signing the labor contract, the employing unit shall truthfully introduce the situation of the unit to the recruited person, and the recruited person also has the right to put forward his own opinions and requirements. After full consultation, both parties shall fill in the labor contract with a brush or pen and sign and seal it;
6. After signing the labor contract, it shall apply to the local labor administrative organ for verification, and file with the competent department and the local labor department.
legal ground
People's Republic of China (PRC) labor contract law
Article 3 The conclusion of a labor contract shall follow the principles of legality, fairness, equality, voluntariness, consensus through consultation, honesty and credibility. The labor contract concluded according to law is binding, and the employer and the employee shall perform the obligations stipulated in the labor contract.
Article 10 To establish labor relations, a written labor contract shall be concluded. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the employer and the employee conclude a labor contract before employment, the labor relationship shall be established from the date of employment.
Article 36 The employing unit and the employee may terminate the labor contract through consultation.
Article 50 When the employer dissolves or terminates the labor contract, it shall issue a certificate of dissolution or termination of the labor contract, and go through the formalities for the transfer of the file and social insurance relationship for the employee within 15 days. Laborers shall handle the work handover according to the agreement of both parties. If the employing unit should pay economic compensation to the workers in accordance with the relevant provisions of this law, it should pay it when the work handover is completed. The employing unit shall keep the text of the dissolved or terminated labor contract for at least two years for future reference.