超龄劳动者劳动权益保护法律适用研究

Studys on the Application of the Law on the Protection of Labour Rights and Interests of Over-age Workers

超龄劳动者劳动权益保护纠纷是劳动人事争议中的重要案件类型,妥善解决与否直接关系到积极应对人口老龄化国家战略的落实。审判实践中,存在超龄劳动者用工关系性质认定不一、工伤认定难、缴纳社会保险难等问题。面对实践中的疑难问题,超龄劳动者劳动权益保护纠纷裁判规则可作出如下调整:首先,此类劳动者在劳动报酬、工作时间、休息休假、劳动安全卫生、工伤保险待遇等方面适用劳动基准。其次,《劳动合同法》第44条规定的“开始依法享受基本养老保险待遇”仅指职工基本养老保险待遇。最后,用人单位在劳动者享受基本养老保险待遇、达到退休年龄的情况下终止劳动合同,不承担支付赔偿金的责任,应否支付经济补偿可视其是否存在《劳动合同法》第38条规定情形进行类型化的分析和裁量。

Disputes over the protection of labor rights and interests of over-age workers are an important type of labor and personnel disputes,and whether they are properly resolved directly affects a proactive national strategy in response to population aging.In judicial practice,there are problems such as inconsistent identification of the nature of employment relationships among over-age workers,difficulty in determining work-related injuries and paying social insurance contributions.In the face of difficult problems in practice,the arbitration rules for disputes over the protection of labor rights and interests of over-age workers can be adjusted as follows:firstly,such workers apply labor standards in terms of compensation,work hours,rest,leave,work safety and hygiene,and work-related injury insurance benefits.Secondly,Article 44 of the Employment Contract Law stipulates that“the employee has commenced drawing his basic old age insurance pension in accordance with the law”only refers to the basic old age insurance pension for employees.Finally,if the employer terminates the employment contract when the employee has commenced drawing his basic old age insurance pension in accordance with the law or reaches mandatory age for retirement,the employee is not responsible for paying damages.Whether to pay severance can be classified and judged based on whether there are situations as stipulated in Article 38 of the Employment Contract Law.