During the epidemic prevention and control period, "stop work and production" has become a high-frequency word, which has attracted the attention of all aspects of enterprises, employees, society, etc.; what is "stop work and production"? Tracing the root cause, the "suspension of work and production" comes from Article 12 of the "Interim Provisions on Wage Payment" issued by the former Ministry of Labor (Ministry of Labor [1994] No. 489): If the unit shutdown or production suspension of is not caused by workers, the employer shall pay the worker's wages according to the standards stipulated in labor contract . If the wage payment cycle exceeds one wage payment cycle, if the worker provides normal labor, the labor remuneration paid to the worker shall not be lower than the local minimum wage standard; if the worker does not provide normal labor, it shall be handled in accordance with relevant national regulations.
According to the above provisions, it is generally believed that suspension of work and production refers to the situation where the enterprise is unable to arrange employees to carry out effective production due to insufficient production tasks rather than the employee or a third party. The enterprise unilaterally decides to temporarily suspend the provision of labor conditions for workers and the employee cannot provide labor according to normal work arrangements.
To this day, no legal or policy documents have made conceptual provisions on "stop work and production suspension", nor have they clearly identified the subject, recognition standards and procedures for "stop work and production suspension"; resulting in everyone talking about the problem of "stop work and production suspension", like a chicken and duck talking, like falling into a cloud and fog. Under
, we analyze the problem of "stop work and production" from three aspects. We hope to peel off the thread and help the discussion continue to deepen.
1. Worker's perspective: What is "stop work"?
According to the explanation of the Modern Chinese Dictionary (7th Edition), suspension of work means stopping work (mostly referring to production labor ). Article 27 of the Trade Union Law of the People's Republic of China stipulates that if an incident of suspension or slacking off in an enterprise or public institution in occurs, the trade union shall consult with the enterprise, public institution or relevant parties on behalf of the employee to reflect the employee's opinions and requirements and put forward resolution opinions.
From the above provisions of Trade Union Law , it can be presumed that "suspension" is the "passive" of workers, and "slacking off" is the "active" behavior of workers. If workers take the initiative to stop working, they should be considered "slacking off work" rather than "stop work". Only workers are forced to stop work can be considered "stop work"; from this perspective, "stop work" is similar to the "laid off" of state-owned enterprise employees in the 1990s. If a worker "actively" slacking off work, the enterprise not only does not need to pay wages, but can also ask the worker to compensate for the losses caused by slacking off work.
In practice, the "stop work" of workers is easily confused with the following two situations.
1. What is the difference between "suspension of work" and taking medical leave and annual leave?
Workers need to issue a doctor's sick leave proposal for sick leave; workers apply for leave, they need to have reasonable reasons to handle private matters; and, both of these leave requires approval from the company before they can take leave. Paid annual leave is the leave right enjoyed by employees in accordance with the law. Enterprises should arrange annual leave for employees. If the enterprise does not arrange annual leave for employees, the enterprise needs to pay twice as much as compensation.
The above vacations are clearly stipulated by legal policies. It is the worker who stops working due to vacations that the worker enjoys the legal rights; and "suspension" is the worker who is "forced" to stop working, based on objective changes, rather than the provisions of legal policies.
2. What is the difference between "stop work" and rotation and rest? It is difficult to distinguish between the two situations of
.
If the company arranges all employees not to work, it is undoubtedly a "stop work"; if the company arranges some employees not to work, is it a "stop work" or a "stop work" for these employees? Some people believe that if an enterprise arranges employees to stop working, or does not specify when to go to work when it is not arranged, it should be a "stop work" and not a "revolutionary resumption".If the company arranges employees to work for half a week, is it a "stop work" or a "revolutionary resumption"? How long does it take to "stop" to be considered "stop work"? How much time is "rest" considered "rotating rest"? In
practice, we can look at the difference between them from the following two perspectives:
According to the length of time of stopping work, does the "stop work" last for a long time? Or is it a long "stop" period? How long is it "long"?
According to the expectation of stopping work, the expectation of when to resume work after the "stop work" is unknown. There is generally a schedule for rotation work for "rotation and rest". Although an employee is now "rotation and rest", the expectation of when to "rotation" to go to work is clear and institutionally arranged.
The distinction between the above two angles is still based on "phenomenon analysis" and fails to achieve "seeing the essence through phenomena", which is ultimately insufficient practicality.
2. Enterprise perspective: What is "stop production"?
Modern Chinese Dictionary (7th Edition) does not have an explanation of the word "suspension" but only the word "suspension". There are two explanations for closure of business: ① Temporarily cessation of business ② Closed business.
From the above explanation, production suspension and business suspension can be regarded as synonyms; production suspension includes at least two meanings: temporary suspension of production, and there is still a possibility of resuming production in the future.
How far is the production of an enterprise called "stopped"? Is it all stopped? Or partially stopped?
Some people believe that if there is a situation where the labor contract cannot be performed due to objective reasons and the labor contract cannot be performed, the company can suspend production based on the objective situation and does not require the entire enterprise to completely stop production before it is called "stop production". For example, if an enterprise arranges some personnel to stand on duty due to off-season production and its own operating reasons, the enterprise can stop production of individual departments (workshops and branches), not only for the entire enterprise. That is: partial suspension of production by enterprises is also considered "suspended production".
According to the above view, what proportion of enterprise suspension of production is considered to be "suspended"? Is this proportion calculated based on the number of people going to work? Or based on business operation income? Is it calculated based on offline business only? Or include online services? How long does it take to "stop" count as "stop production", one day? One week? Or a month? Is the time of "stop" continuous calculation or cumulative calculation?
In practice, the "stop production" of enterprises is easily confused with the following three situations.
1. What is the difference between "stop production" and enterprise equipment maintenance?
equipment maintenance is within the enterprise's production plan, and the enterprise has its annual production plan. The enterprise and its employees have long expected and prepared for this, which is an act of the enterprise's initiative to implement; "suspension of production" is generally a helpless move that the enterprise is forced to implement, mainly due to operational difficulties, poor market efficiency, or falling into the vicious circle of "the more production is, the more it is lost."
2. What is the difference between "stop production" and long holidays?
The common point between the two is that both employees need to leave their posts for a period of time. The long holiday originated from the period of laid-off and re-employed in the 1990s. Some state-owned enterprises have difficulty in operating operations and "long holidays" for employees, and employees can obtain economic income by seeking their own jobs. Under the market economic system, within the framework of Labor Law , some enterprises stipulate the content of "long holidays" in rules and regulations and labor contracts, they can be implemented in accordance with the prescribed content. "Suspension of production" is entirely the independent behavior of enterprises to stop production based on objective situations in market operations. Its basis is the market economy and labor contract system , which are rarely affected by administrative control factors.
3. What is the difference between "suspension of production" and the closure of enterprises or closures?
The company will no longer continue to operate after closing or closing. The resulting cessation of production is permanent and there is no possibility of resuming production; "stop production" is generally a temporary arrangement of the company, and there is still a possibility of resuming production in the future. Of course, in practice, there are also cases where companies "stop production" first and then close it.
3. Who has the final say on "stop work and production"?
This mainly involves the issue of the identification (or activation) subject and identification procedures for the "stop work and production".
1. The government has the final say? The "stop work and production" mentioned in
in practice refers to the suspension of work and production of enterprises caused by "not due to workers' reasons" in the interim provisions on wage payment, but the law does not further define the specific reasons.
Some people believe that "stop work and production" should be determined by the labor administrative department in administrative law enforcement, or by the judicial authorities in case judgment.
In administrative law enforcement of labor administrative departments, it is generally based on simple social cognition, and it is determined by "looking at the word " to express one's meaning".
combined with existing cases, judicial practice generally believes that: the objective economic situation based on the labor contract is based on the when it is concluded, resulting in the objective situation where the labor contract cannot be performed is an objective situation where the enterprise can stop work and production; including the objective situation such as serious difficulties in the production and operation of the enterprise, force majeure, and government behavior. In addition, from the perspective of dispute handling, it is necessary to specifically analyze the rationality of the suspension of work and production of enterprises. Enterprises can allocate labor within the scope permitted by law, which is an act of enterprises exercising their business management autonomy and actively performing labor contracts. It should be legitimate and legal for enterprises to arrange some personnel to stand on duty due to off-season production and their own business reasons. Enterprises are not allowed to suspend work and production for individual workers.
The biggest problem with the above two methods is that they are based on individual cases, and hope that the social life experience of law enforcement officers and judges and free-hearted evidence can be achieved through rational discretion; the final result is often: the judgment criteria cannot be unified, and the determination results of similar situations will even vary greatly.
2. The enterprise has the final say?
Guidelines for the layoffs, production suspension, bankruptcy and follow-up handling of employees in Guangdong Province (Guangdong Labor and Social Security Letter [2008] No. 1950) Article 2 stipulates: When an enterprise decides to stop work or production, it shall first explain the situation to the employees. If an enterprise stops work or stops production without the reasons of workers, it shall use meetings and other methods to explain to the employees the reasons, deadlines, work tasks to be arranged during the suspension of work and production, and the wage payment standards to be implemented, listen to employees' opinions, and make explanations and replies in accordance with the law. Article (II) of the Shanghai Municipal Human Resources and Social Security Bureau (Shanghai Human Resources and Social Security Administration [2022] No. 89) stipulates that during the epidemic, enterprises may submit relevant rules and opinions such as rules and regulations or major matters directly related to the vital interests of workers, such as rules and regulations or major matters directly related to the vital interests of workers, such as labor unions or employee representatives for discussion and soliciting opinions. If it is determined by equal consultation only applies to the epidemic and informed workers, it can be deemed that democratic procedures have been fulfilled.
In summary, enterprises can determine the "stop work and production" plan through democratic procedures and other methods.
According to the spirit of the above documents, the decision to suspend production is the content of the enterprise's business autonomy. As long as the enterprise suspends work against individual workers without "malicious intention", it has the right to decide whether to implement production suspension based on its own business situation.
Enterprises can listen to employees' opinions and suggestions on the draft plan for suspension of work and production, and negotiate with employees on an equal basis. After the plan is formulated and issued, the company will implement it after informing employees. That is: after an enterprise formulates a suspension plan through democratic procedures, it can decide to implement suspension.
3.The law has the final say?
How to understand and grasp the "not due to workers' reasons" as stipulated in Article 12 of the Interim Provisions on Wage Payment?
If, we divide the reasons for the suspension of work and production of enterprises into: due to enterprise reasons, workers reasons, third-party reasons, and force majeure reasons; we can analyze them in detail from these four perspectives.
① Does the suspension of work and production caused by enterprise reasons count?
For example, the situation of business management such as market orders and poor management, and the situation of enterprises being ordered to close or rectify for environmental protection, production safety and other violations, etc., it is generally believed that these situations can be classified as "non-worker reasons" stipulated by law.
②Does the suspension of work and production caused by workers be counted?
For example, workers are absent from work and leave their jobs. It is generally believed that these situations are obviously not a "stop work and production" situation stipulated by law. During this period, the company does not need to pay wages to employees.
③Does the suspension of work and production caused by third-party reasons count?
For example, power outages, water outages, factory explosions, fires, etc. It is generally believed that although these situations are not caused by enterprises, they can be classified as "non-worker reasons" stipulated by law.
④ Does the suspension of work and production caused by force majeure count?
For example, earthquakes, floods and other natural disasters , wars, etc., is this epidemic a "force majeure"?
The relevant explanation of the Legislative Affairs Committee of the National People's Congress clearly states that the epidemic is a force majeure factor.
Opinions of the Shanghai Higher People's Court and the Shanghai Municipal Human Resources and Social Security Bureau on the relevant guidance on the handling of labor dispute cases under the influence of the epidemic (Shanghai High Court [2020] No. 203) proposed: The suspension of work and production caused by the epidemic is different from the suspension of work and production caused by the employer due to poor management and management, and is not caused by the worker or the employer.
Shanghai's policy regulations are in line with the explanation of National People's Congress . It can be concluded that if enterprises stop work and production due to force majeure factors such as the epidemic generally do not belong to the "non-worker reasons" stipulated by law. In this case, it is obviously inappropriate to simply apply the provisions of Article 12 of the Interim Provisions on Wage Payment in practice to enterprises that are currently forced to stop work and production due to epidemic prevention and control.
