Third-party agreement considerations

Tripartite AgreementThat is, the three-party agreement.

The tripartite agreement is short for the "national general college graduates employment agreement". It is a written expression of the rights and obligations of graduates, employers, and schools in the employment of graduates, it can solve a series of problems related to recent graduates, such as household registration, archives, insurance, and Provident Fund. The agreement shall be terminated after graduates report to the enterprise and the employer officially accepts the agreement.

Basic Concepts

The tripartite employment agreement is different from the labor contract. First, the tripartite employment agreement is printed by the Ministry of Education of the People's Republic of China. It mainly clarifies the basic information and requirements of the three parties. The three-party employment agreement is formulated based on national regulations and regulations on the employment of college graduates. Its validity period is from the contract date to the time when the graduates report to the employer. The labor contract is restricted and protected by the Labor Law and contract law. Some employers, such as many foreign companies, are determined to file records (Note: before reporting to the employer ), at the same time, it is required to sign an agreement similar to a labor contract with the graduates, while more employers require the "letter of intent for employment" to be signed first, and the graduates will sign the labor contract after reporting. Secondly, the employment agreement is a three-party contract, which involves three aspects: schools, employers, and students. The three parties are associated with each other but independent from each other. The labor contract is a contract between the two parties, it consists of the rights and obligations of the worker and the employer. Third, when a graduate signs an employment agreement, it is still a student's identity. However, when signing a labor contract, it should also be a laborer's identity. Once a labor contract is signed, the effectiveness of the employment agreement shall be lost. If the content of the labor contract conflicts with the third-party agreement, the labor contract shall prevail.

Significance

Once the tripartite agreement is signed, it means that the first job of college students is basically determined. Therefore, fresh graduates should pay special attention to signing matters. Before signing a tripartite agreement, college students must carefully check the affiliation of the employer. State organs, public institutions, and state-owned enterprises generally have the right to receive personnel. Private enterprises and foreign-funded enterprises must be approved by the Personnel Bureau or the Talent Exchange Center before they can recruit employees. The agreement must sign their opinions to be valid. Recent graduates should also have some knowledge about the special regulations of different local personnel authorities.

Notes

Pay attention to the following four aspects when signing a labor contract:

　　I wantClarify the positions and positions. Otherwise, the employer will use the recruitment method to conceal the active resignation of graduates and will not pay any economic compensation;

　　II.Prevent the employer from repeatedly renewing the probation period by changing the position, because the same person in the same position cannot apply to the two probation periods, there is no limit for changing positions (in fact, this move is no longer necessary, according to the Labor Contract Law, effective on January 1, January 2008, the same employer and the same worker can only agree on a probation period );

　　RequiredThe minimum wage standard is defined in the labor contract. It is best to fix the year-end bonus with the terms as part of the salary. Because China is not qualified for the year-end Award, this legal blank may be used by employers and will become a way to deduct salaries in the future;

　　ThuCheck whether the employer provides social insurance for its employees. If there is no social insurance, it is equal to the salary minus a lot, and it cannot enjoy the social security benefits of the country or organization.

Pay attention to six details when signing a tripartite agreement:

　　FirstIt depends on whether the name of the employer is consistent with the valid seal name of the organization. Otherwise, the agreement is invalid. When you enter your professional name, it must be consistent with the professional name of the Academic Affairs Office of the school, cannot be abbreviated.

　　SecondForeign companies, joint ventures, and private enterprises generally adopt the trial period. The length of the contract period may vary from 1 to 3 months. Generally, the trial period is three months and cannot exceed 6 months. State organs, universities, and research institutes generally adopt the trial period, usually one year.

　　ThirdMany organizations impose high liquidated damages on students to retain their students. During the negotiation, students should strive to minimize liquidated damages. Generally, liquidated damages shall not exceed 5000 yuan. However, the Labor Law stipulates that "for workers with confidentiality obligations, the employer may agree on non-compete clauses with the workers in the labor contract or confidentiality agreement, and agree that after the termination or termination of the labor contract, economic compensation is provided to workers on a monthly basis within the non-compete period. If a laborer violates the non-compete clause, it shall pay liquidated damages to the employer in accordance with the provisions. In addition to the above two legal provisions, the employer shall not agree with the laborer that the employee shall bear liquidated damages ." Therefore, students must strive to cancel the liquidated damages provision.

　　FourthThe current employment agreement for graduates is a "format contract", but the "Remarks" section allows the three parties to separately agree on their respective rights and obligations. In order to prevent employers from committing a set of commitments and doing a set of actions, graduates can describe the leave, housing, insurance, and other benefits that have been reached before signing the contract in the remarks column. In the event of a dispute, you can maintain your legal rights here.

　　FifthIn order to increase the employment rate, many colleges and universities force students to contact their acquaintances to sign a "false" agreement. This is not good for graduates and graduates should not yield.

　　SixthStudents must follow the prescribed steps when signing the agreement. After the employer has filled out and stamped it, go to the school employment guidance center to stamp the visa. Do not go directly to the Graduate Employment Guidance Center to apply for a stamp after you fill it out. The consequence of this is that when the unit is filled in, the salary and treatment are very different from those promised in the past. Students have signed and stamped themselves and their school, but they are still weak. Or the enterprise is forced to compensate for the default.

The tripartite agreement serves as a basis for national statistics on the employment rate of college students, and is also a proof of the issuance of National Dispatch cards. Only when you sign a three-party agreement and get back to the school will the school send you the dispatch card after graduation, and you report the dispatch card to the organization where you work, and then start to calculate the length of service, you also have a cadre (you graduated in June 25 every year, so you must submit the three parties to the school before June 18 ).

The tripartite agreement is a written expression that clarifies the rights and obligations of graduates, employers, and schools in the employment of graduates, this helps solve a series of problems related to recent graduates, such as household registration, archives, insurance, and Provident Fund. The agreement shall be terminated after graduates report to the enterprise and the employer officially accepts the agreement. Therefore, the three-party agreement is only an employment intention signed between graduates, employers, and schools. It is not a legal document on labor relations and is not binding on labor relations. Only graduates report to the Enterprise, after signing a labor contract with the organization or forming a factual labor relationship, the graduates can form a formal labor relationship with the employer only after the intention becomes a reality. Some enterprises require students to apply for an internship before graduation after they sign a tripartite agreement with the students. After the students graduate, the enterprises negotiate and sign a labor contract based on their internship performance and the principles of the labor contract, or you may not sign the order. Therefore, for graduates, if they sign a three-party agreement and do not enter the "safe deposit box" for employment, they also need to accept further study during the internship period and probation period of the employer.

Legal issues

Common labor disputes during the trial period of the Tripartite Agreement

After a graduate reports to the employer, the three-party agreement is terminated. At this time, the employer will sign a formal labor contract with him, it stipulates the trial term, service term, salary and other welfare matters of the worker in the unit. After the contract is signed, the two parties formally confirm the labor relationship. In the above-mentioned provisions, the trial period is the most prone to disputes. Therefore, we would like to remind graduates of the following legal issues regarding the trial period:

(That is, the general order is to first sign a tripartite agreement, and then report the labor contract, which specifies the relevant matters and the trial period. In addition, if the employer rejects the application during or after the trial period, it must list relevant evidence !)

Trial period of the Tripartite Agreement

The probation period is the period of inspection agreed upon by the employer and the worker for mutual understanding and selection after establishing a labor relationship. According to article 19th of the Labor Contract Law of the People's Republic of China, if the term of the labor contract is more than three months and less than one year, the probation period shall not exceed one month. If the term of the labor contract is more than one year and less than three years, the probation period shall not exceed two months; for labor contracts with a fixed term of more than three years or without a fixed term, the probation period shall not exceed six months. If the term of the labor contract or labor contract is less than three months, the trial period shall not be agreed. The same employer and the same worker can only agree on a trial period. The trial period is included in the labor contract period. If the labor contract only stipulates the probation period, the probation period is not valid and is the labor contract period. (Www.mian4.net)

State organs, colleges and universities, medical research institutes, and medical administration departments adopt the trial period of one year. The trial period is applicable to enterprises and companies (including foreign companies, joint ventures, and private enterprises ), the trial period is used to establish labor relations with hospitals. 15-6 months. The trial period can be extended, and the trial period cannot. The trial period is mandatory, and the trial period is agreed by both parties.

Resignation during the trial period of the Tripartite Agreement

The reason why the trial period is called a trial is that the employer and the employee can check whether the other party meets their own requirements during this period, and both parties have a more free way to terminate the contract. According to article 37th of the labor contract law, a worker can terminate the labor contract by notifying the employer three days in advance during the trial period.

Some employers agree in the labor contract that the laborer should assume the liability for breach of contract when the contract is terminated during the trial period, which actually limits the right to revoke the employee. Therefore, such an agreement infringes on the legitimate rights of the laborer, the law generally determines that such conventions are invalid.

Termination of the trial period of the Tripartite Agreement

According to article 25th of the labor law, the employer may terminate the labor contract if the employee is proved to be ineligible for employment during the trial period, which is clearly stipulated by law, the condition for the employer to terminate the labor contract is that it must provide evidence that the laborer does not meet the employment conditions during the trial period. Here, graduates should make it clear that when the employer asks to terminate the labor contract, the burden of proof shall be indicated by the employer, and the laborer does not need to provide proof that he or she meets the employment conditions.

The burden of proof undoubtedly limits the randomness of the employer's termination of the labor contract. If the employer does not have evidence to prove that the employee does not meet the employment conditions during the trial period, the employer cannot cancel the labor contract. Otherwise, the employer shall bear all legal consequences arising from the illegal termination of the labor contract.

Validity of the two trial periods under the Tripartite Agreement

Some employers will agree on a second trial period with the worker after the first trial period. This situation should be treated differently. If the two trial periods are determined in the contract after mutual negotiation, the sum of the two trial periods exceeds the upper limit of the trial period stipulated by law, if the maximum value is exceeded, the two trial periods are legal.

Three-party agreement: only sign the probation contract, not sign the Labor Contract

After a worker is hired by an employer, both parties can agree on the probation period in the labor contract. The probation period should be included within the labor contract period, and the labor contract is a prerequisite for the existence of the probation period. You are not allowed to sign a trial contract, but not a labor contract. The trial period contract signed in this way is invalid, but the invalidity of the "trial period" contract does not invalidate the protection of the labor law on workers. According to article 19th of the labor contract law, if the labor contract only stipulates the probation period, the probation period shall not be established and shall be the labor contract period. There are regulations in the Beijing region: Beijing Labor Contract Management Regulations: only the trial period contract is signed. After the trial period, the employer is unwilling to sign the labor contract again, and the laborer can push back (for example, the trial period is January 1, January, the contract period can be reversed to one year, which is based on the relevant provisions of the Labor Law on the trial period ). In addition, the Shanghai Labor Contract Regulations also have special provisions on this.

Third-party agreement considerations