Rebalancing Of Flexibility And Security In The Labor Contract Law

Flexibility and security are a pair of relative concepts in labor relations,which have Rich connotation.Employers and workers have diverse needs for flexibility and security.Flexibility and security are not the contradictory relationship between zerosum game.The balance between these is the basic path of harmonious labor relations.The institutional arrangements for flexibility and security in labor relations throughout the field of labor law are hierarchical and focused.Labor Contract Law combines the two attributes of flexibility and security,but it also causes many conflicts and problems.Therefore,the Labor Contract Law is the most intense field of flexibility and security in the field of labor law,and it is also the model and key to the study of the balance of flexibility and security.At the same time,economic reform is inseparable from the cooperation of the labor legal system,and the labor legal system must also be suitable for the current economic reform.The current supply-side structural reforms have an urgent need for the rational allocation of flexibility and security in labor relations.The balance between flexibility and security and the supply-side structural reform are also the inherent requirements of Labor Contract Law.The core of the supply-side structural reform is the adjustment of the economic structure and the transformation of the economic development mode.There are both short-term tasks and long-term strategies,but they can be attributed to four essential steps: production reduction,production transformation,industrial upgrading and entrepreneurship.The supply-side structural reform corresponds to the structural unemployment problem in the labor market.The production reduction link corresponds to the layoffs of enterprises.The production transformation corresponds to the transfer of employees.The industrial upgrading means that employers need to improve the labor skills of laborers,and entrepreneurship means that employers need easy institutional environment.The corresponding content of the four essential steps in Labor Contract Law is the dismissal system,change of labor contract,a term of service and exemption system for small and micro enterprise.However,the current Labor Contract Law is problematic for flexibility and security configuration of the above mentioned system,and it does not adapt to the supply-side structural reform.If a fixed-term labor contract is concluded twice in succession,an open-ended labor contract should be concluded,which makes the termination of the labor contract narrower and increased the difficulty in dismissal.The change of the labor contract requires the employer and the employee to agree and use the written form,which protects the laborer's occupational stability right well,but the employer's employment autonomy is insufficiently protected.The term of service has a single scope of application,and only the term of service for professional technical training is stipulated.At the same time,only the compensation liquid of compensation nature can not achieve the effect of encouraging the employer to develop human resources.Finally,small and micro enterprises as the main force of the entrepreneurial,the “one size fits all” legislative approach is not conducive to their survival and development.Therefore,Labor Contract Law should delete the content of two consecutive fixed-term labor contracts,and should establish an open-ended labor contract,which will not result in the short-term labor contract.At the same time,it is necessary to play the role of economic layoffs.Secondly,it is necessary to increase the unilateral change of the labor contract by the employer and to break the written form under certain conditions.Thirdly,it should increase the application of capital contributions and other special treatments as a term of service,and return the liquidated damages to punitive.Finally,small and micro enterprises can waive some of the provisions of the Labor Contract Law,especially in terms of dismissal protection and regulations.