Does the combined length of service count as"at least 10 years of continuous service"in the conditions for signing an open-ended labor contract?

Anaphora

Article 14 of the Labor Contract Law stipulates that "an employer and a worker may conclude a labor contract with no fixed term upon consensus through consultation."Where a laborer proposes or agrees to renew or conclude a labor contract under any of the following circumstances, a labor contract with no fixed term shall be concluded unless the laborer proposes to conclude a labor contract with a fixed term: (1) where the laborer has worked continuously in the employing unit for at least 10 years; ..."Article 10 of the Regulations on the Implementation of the Labor Contract Law stipulates that "If a worker is assigned from the original employer to the new employer for no reason other than his own, the working years of the worker in the original employer shall be combined and counted as the working years of the new employer." If the original employing unit has already paid economic compensation to the laborer, the new employing unit shall not calculate the laborer's years of service at the original employing unit when calculating the years of service for which economic compensation is paid after rescinding or terminating the labor contract according to law." The merger in this article is calculated as the working years of the new employer, and we call it the combined working years. In practice, if the employee has worked continuously for 10 years in the employer and proposes to sign an open-ended labor contract, the employer should sign an open-ended labor contract, otherwise there is a legal risk of illegal termination of the labor contract, so whether the combined length of service is included in the "continuous work for 10 years" in the conditions for signing an open-ended labor contract?

1. Relevant provisions

Article 20 of the Labor Law stipulates that "the term of a labor contract is divided into a fixed term, no fixed term and the completion of a certain amount of work." If a worker has worked continuously for 10 years or more in the same employer and both parties agree to extend the labor contract, if the worker proposes to conclude a labor contract with an open-ended term, a labor contract with an open-ended term shall be concluded." Notice on the Issuance of Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China (1995) No. 309, Article 22 of Article 20 of the Labor Law stipulates that the term of the labor contract signed by the worker and the same employer has reached ten years without interruption, and when both parties agree to renew the labor contract at the expiration of the labor contract, as long as the worker proposes to sign a labor contract with no fixed term, The employing unit shall conclude a labor contract with no fixed term. If there are special provisions in the fixed worker conversion system, such provisions shall be followed." From the above provisions, Article 22 of Article 309 is a further interpretation of the provisions of Article 20 of the Labor Law, the provisions of Article 20 of the Labor Law are expressed as "working in the same employer for more than 10 years continuously", and the provisions of Article 14 of the Labor Contract Law are expressed as "working in the same employer for more than 10 years continuously". The literal expression and emphasis of "the same employer" and "the employer" are different, and the provisions of No. 309 can not be directly used to answer our questions.

2. Search for similar cases

We searched for similar cases and summarized them as follows:

(2013) Shanghai No. 1 Middle Minsan (Min) Final Word No. 1958 (Shanghai No. 1 Middle People's Court)

The Court considers that: Before March 1, 2007, the Appellant established a labor relationship with a foreign airline company and was dispatched by the foreign airline company to work in the Shanghai office of fedex. The labor relationship between the Appellant and the Appellee was established on March 1, 2007, and the two parties signed two labor contracts before and after the expiration of the labor contract on February 28, 2013. The appellant has not worked continuously in the appellee's office for ten years. In accordance with the provisions of Article 14, paragraph 2 (3) of the Labor Contract Law of the People's Republic of China, where a labor contract with a fixed term is concluded for two consecutive times, and the worker does not fall into the circumstances specified in Article 39 and Article 40, paragraph 1 and paragraph 2 of this Law, and the labor contract is renewed, a labor contract with no fixed term shall be concluded unless the worker proposes to conclude a fixed term labor contract. From the analysis of the provisions of the law, in the above circumstances, the prerequisite for signing an open-ended labor contract is that the laborer and the employer have an agreement to renew the labor contract, and the evidence provided by the appellant in this case is not enough to prove that he has clearly expressed his intention to renew the labor contract to the appellee, while the Appellant has no intention to agree to renew the labor contract. Therefore, the conditions for signing an open-ended labor contract are not fulfilled, the appellee will not renew the contract after the expiration of the contract, and the labor relationship will be terminated due to the termination of the labor contract. Therefore, the Appellant's appeal request to resume the labor relationship with the appellee is not supported by the court, and the court upholds the judgment of the original trial court.

(2021) No. 7488 Minend, Shanghai 01 (No. 1 Middle Court)

The court held that: First, about the ownership of Liu Benshan's labor relations. Liu Benshan signed a labor contract with Stara Shanghai Company and was dispatched to Erwenyongke Company to work, and the three parties formed a labor dispatch relationship. In the labor dispatch relationship, Liu Benshan formed a labor relationship with Stara Shanghai Company, and a labor relationship with Erwenyongke Company, but not a labor relationship. Liu Benshan claims that his position in Erwenyongk Company does not belong to the temporary, auxiliary or alternative "three sex" post, the labor dispatch relationship is illegal and invalid, and he forms a de facto labor relationship with Erwenyongk Company. Because the relevant provisions on the "three sex" posts and the proportion of labor dispatch are mandatory management provisions with the dispatching unit or the employing unit as the subject of obligations, violations of these provisions shall be ordered by the human resources and social security administrative department to rectify within a time limit, and will not affect the validity of the labor dispatch relationship or labor relationship. It also does not produce the legal consequence that the laborer directly establishes the labor relationship with the employing unit. Therefore, it is difficult for the court to adopt Liu Benshan's view that it can be found that he directly formed labor relations with Erwinyonk Company. Secondly, about Stara Shanghai company is illegal to terminate the labor contract. Stara Shanghai Company decided to terminate the labor contract with Liu Benshan on the basis of the expiration of the labor contract between the two parties. In the labor dispatching relationship, the labor contract law only stipulates that the labor dispatching unit should conclude a fixed term labor contract with the dispatched worker for more than two years, and there is no requirement for signing a non-fixed term labor contract. Before the expiration of the labor contract between the two parties, Liu Benshan never requested the signing of an open-ended labor contract, so Liu Benshan advocated that Stara Shanghai Company and Erwenyongke Company should sign an open-ended labor contract with them, and the view that Stara Shanghai Company's termination of the labor contract is illegal is also difficult for the court to accept. To sum up, Erwenyongk Company and Stara Shanghai Company do not have to bear the legal responsibility for paying Liu Benshan's compensation for illegally rescinding the labor contract.

(2020) No. 5157 Min End, Hu 02 (Second Middle School)

The court held that: where a laborer has worked continuously for 10 years in the employing unit, where the laborer proposes or agrees to renew or conclude a labor contract, a labor contract with no fixed term shall be concluded. Since the appellant was only registered on January 12, 2016, the Appellant and the Appellant signed a labor contract in March 2016 with the contract term ending in June 2019, and the expiration of the contract is less than 10 years. Therefore, the court of first instance found that it does not belong to the situation that should be signed without a fixed term of labor, and it is not improper. As for the Appellant's opinion, since December 2007, he signed a labor contract with Shanghai Employee Talent Service Co., Ltd. and was dispatched to work in Mars Foods (China) Co., LTD., the affiliated unit of the Appellee, and the total working years in the Appellee's unit have exceeded 10 years, so he should sign a labor contract with no fixed term. Whereas the Appellant was only established in January 2016, prior to which, although the Appellant was dispatched to Mars Foods (China) Co., LTD., an alien of the case, the opposite party to the Appellant's labor contract was not the Appellant, and the relevant provisions of the Interpretation (4) of the Supreme People's Court on several Issues concerning the application of law in the trial of labor dispute cases cited by the Appellant, Refers to the combination of years of work in the calculation of economic compensation or compensation, rather than the combination of labor relations. When paying the economic compensation for the termination of the labor contract, the appellee also agrees to comply with the above provisions. Therefore, the appellant's point of view is insufficient, and the court does not adopt it. The court does not support the appellant's appeal.

(2024) Shanghai 0112 Minchu 10358 (Minhang Court)

In this case, the plaintiff established a labor relationship with XX Company from January 1, 2011 to December 31, 2016, and was dispatched by XX Company to work in Kumho Company. XX Company is the employer and Kumho Company is the employer. On December 21, 2016, the plaintiff and Kumho Company signed an agreement on the change of the subject of the labor contract, stipulating that the subject of the plaintiff's labor contract will be changed to Kumho Company from January 1, 2017, and the two parties signed a labor contract with a term from January 1, 2017 to March 31, 2022. On March 31, 2021, Kumho, the plaintiff and the defendant signed a change agreement on the subject of the labor contract, stipulating that the subject of the labor contract signed between the plaintiff and Kumho will be changed to the defendant from April 1, 2021. Although the above two labor contract subject change agreements stipulate that Kumho Company recognizes the plaintiff's working years in XX Company and inherits them, and the defendant recognizes the plaintiff's working years in Kumho Company and inherits them, the plaintiff's employer before January 1, 2017 is still XX Company, not Kumho Company or the defendant, so when the labor contract expires on March 31, 2022, The plaintiff has not yet met the legal requirements of working in the employer for 10 consecutive years, should sign an open-ended labor contract. Therefore, it is not illegal for the defendant to notify the plaintiff not to renew the labor contract before the expiration of the labor contract, and the labor contract between the two parties will terminate on March 31, 2022. And the defendant has also paid the plaintiff the full amount of economic compensation for the termination of the labor contract. To sum up, the plaintiff's claim that the defendant should pay compensation for his illegal termination of the labor contract is difficult for the court to support.

(2021) No.18527, Qingpu District Court, Shanghai 0118, China

The plaintiff claims that he has worked in the defendant's office continuously for at least 10 years, which meets the conditions for signing an open-ended labor contract, and the defendant has no right to terminate the labor contract between the two parties. In this regard, the court held that: the plaintiff established the labor relationship with the defendant on June 1, 2016, and the working life of the defendant was less than 10 years when the labor contract was terminated, which did not meet the conditions for signing an open-ended labor contract after 10 years of continuous work. The plaintiff claims that his working years in the defendant's affiliated company should be combined into his working years in the defendant's place, but such combined calculation of working years is only applicable to the calculation of economic compensation or compensation, and does not apply to the calculation of whether he meets the conditions for signing an indefinite term labor contract. Therefore, the plaintiff's claim is groundless and the court will not accept it. To sum up, it is not improper for the defendant to terminate the labor contract after the expiration of the labor contract, and the court does not support the plaintiff's lawsuit request for the defendant to pay compensation for illegal termination of the labor contract.

(2019) Shanghai 0115 Minchu No. 36063 (Pudong Court)

The Court holds that: according to the law, the labor contract expires, the labor contract terminates. In this case, the term of the labor contract signed by the original and the defendant was from January 1, 2016 to December 31, 2018, and the defendant sent a notice to the plaintiff on December 28, 2018 that the labor contract would not be renewed when it expired. Although the plaintiff submitted to the defendant by email on December 25, 2018 that it was in compliance with the open-ended employment contract with the Defendant, the Court finds that, on the basis of the facts identified above, From September 24, 2007 to December 31, 2015, the plaintiff established labor relations with Shanghai Foreign Service Co., Ltd. and Shanghai Natiefu Transmission System Torque Technology Co., LTD. The employer was not the defendant company, and the plaintiff's actual working years in the defendant company were less than 10 years. Where the employer does not conform to the provisions of the law, it shall conclude with the worker the situation of working without a fixed term. Accordingly, the defendant terminates the plaintiff's labor contract by issuing a notice to the plaintiff not to renew the expiration date, and pays the plaintiff the economic compensation for the termination of the labor contract does not violate the law. The plaintiff's claim and request that the defendant should sign an open-ended labor contract with him on the basis of his previous working years, and that the defendant illegally terminated the labor contract and should pay the difference in compensation are groundless in law, and this court cannot support it.

Article 46 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases (I) (referred to as "Judicial Interpretation I") provides that: If an employer meets one of the following circumstances, it shall be identified as "the worker is arranged to work in the new employer from the original employer for no reason other than his own" : (1) The worker is still working in the original workplace or post, and the subject of the labor contract is changed from the original employer to the new employer; (2) The employing unit transfers workers to work in the form of organizational assignment or appointment; (3) The employee's job transfer is caused by the merger or division of the employing unit; (4) The employing unit and its affiliated enterprises conclude labor contracts with the workers in turn; (5) Other reasonable circumstances.

From the above-mentioned cases and the provisions of Judicial Interpretation I, basically give us the mainstream judgment, the working years of continuous work for more than ten years do not include the combined working years, the scope of application of the two is completely different, which is consistent with the provisions of article 22 of the "309 document", emphasizing the uniqueness of the employer. Although the conversion of labor dispatch to direct employment and the rotation of labor by affiliated enterprises may result in the combined calculation of working years, such combined calculation of working years is only applicable to the calculation of economic compensation or compensation, not the merger of labor relations, and is not applicable to the calculation of working years that meet the conditions for signing an indefinite term labor contract. The author has also communicated with the arbitrator, there is no direct corresponding laws and regulations at present, there is a view that unless the new employer and the employee sign an agreement to actively recognize the continuous calculation of service years, generally in the calculation of whether continuous work for 10 years meets the conditions of signing without a fixed period, will not identify the labor dispatch company, two or more affiliated companies belong to the same employer. Or combined years of service.

3. Practical suggestions on the implementation of non-fixed term labor contracts signed by employers

To sum up, the combined length of service is generally not included in the requirement to sign a non-fixed term labor contract "10 years of continuous work", but because there is no uniform laws and regulations or guiding cases and opinions of the High Court, different adjudication organs may have different judgment opinions, we suggest that employers should still remain cautious, you can consider doing two things: First, in order to settle disputes and reduce the legal risk of illegal termination, it can be considered to sign an open-ended labor contract with the employee, of course, on the premise that the employee has sustainable employment value; Second, when a worker changes from a labor dispatch company to a direct employer or an affiliated enterprise signs a contract in turn to change the main body of the employer, as far as possible, it is clearly stipulated in the change agreement or tripartite agreement that the combined length of service carried over by the new employer is only applicable to the calculation of economic compensation or compensation in the future, and does not apply to the calculation of the working years under the conditions of an indefinite labor contract.

Note: Due to the strong regional nature of the basis and caliber of labor dispute judgment, this article is only applicable to Shanghai region, and has no direct application significance in other regions.