论非全日制用工中的均等待遇原则

Equal Treatment Principle in the Part-Time Work

差别待遇是非全日制用工发展中的突出问题,对此在比较法上以贯彻均等待遇原则为对策。均等待遇原则禁止单纯基于非全日制工身份的差别待遇,但有正当理由的除外。均等待遇原则的价值不仅在于提供宏观的理念指引,还在于对非全日制用工中具体劳动条件的确定与现行劳动法建立规则衔接。我国非全日制用工立法过度追求灵活性的取向存在偏差而需反思,应重新确立均等待遇原则的指导地位。现行法下无均等待遇原则之正面条文,但可依法律解释的方法迂回证成。未来立法应明确宣示均等待遇原则。

Discriminatory treatment is the most serious problem in the development of the part-time work. Equal treatment principle is employed as a solution to this problem internationally. According to this principle, discrimination in working conditions simply based on the identity of part-time workers is forbidden, but reasonable differences with substantial reasons are permitted. The principle does not only provide general guidance but also act as a rule to connect part-time work with current labor laws to decide the working conditions. Current legislation about part-time work should be re-examined for too much flexibility, and equal treatment principle should be followed as the guiding principle. It doesn＇t exist in current labor legislation in China. This problem can be solved through indirect explanation of current laws in a sense. Equal treatment principle should be provisioned in future legislation expressly.