On 14 april 2008, a claim was filed for the resignation of the pilot of east air yunnan branch, and the second trial in kunming college was reopened. Figure ic
The pilots were envious professions, but the apparently handsome captains faced difficulties in his freedom to choose his profession. The previous case against the “east family” for the dissolution of his labour relationship had been heard by a group of captains, four of whom had made an agreement in their labour contracts to “must serve” the airline. The expiry date of the mandatory period of service is the date of retirement of the pilot, and the contract provides that “the worker may not submit for separation during the mandatory period of service”。
In the case of the applications of the pilots who were required to serve in retirement, the court handed down different decisions at first instance: in some cases the captain was sentenced to dismissal and in others to continue to perform the contract. Following the first trial, six captains appealed, three have now been remanded and three are awaiting the outcome of the second trial, which concerns their future whereabouts。
The expert analyses that “must serve” violates the pilot's right to choose his profession and should be an invalid form clause。
The captain is asked to “must serve until retirement”
At the age of 32, wanchang (alias) entered the china oriental aviation corporation, jiangxi branch in 2007, starting with trainees and running as a co-pilot, and in 2013 he officially became a captain。
With promotion, some of the company's management problems have made it increasingly uncomfortable: for example, those involving aviation safety incidents, some of which were caused by objective reasons, but the company has always suspended the pilot for one month。
After an increasing number of grievances, on 9 january 2015, the company rejected the dissolution of the labour relationship, which was proposed to east shipping and to the west branch of east air, which, following the failure of the labour arbitration process, brought the latter and jiangxi before the courts for the dissolution of their labour relations。
East asia and jiangxi replied that the labour contract with wanchang had to be fulfilled and that the parties had entered into an indefinite labour contract, which stated that “the period of service must run from 1 august 2007 to the end of the retirement year, and the period of service required to work for east asia from the date of acquisition of the pilot was eight years”. The non-performance of the contract and the unilateral submission of the termination of the contract constitute a breach of contract。
At the same time, it is submitted that the training agreement signed with wanchang's flight school had been commissioned to train pilots at the school, the cost of which was borne by the company, and that if the court decides to dissolve the labour relationship, manchang would have to pay 5 million yuan to the company。
The first instance case was heard by the new district court in jiangxi province. The court held at first instance that the conclusion of the labour contract between wanchang and east asia in august 2007 was a true expression of the parties ' intention that the contract was not in violation of the law and regulations, was valid and legally valid and should be protected by law and strictly observed by the parties。
In august 2013, the court found that, on the basis of an indefinite labour contract entered into by the two parties, he had to serve from 1 august 2007 until the end of the retirement year, and that he had to work for east asia for eight years from the date on which he or she became eligible, and that he now offered to terminate the contract, contrary to the contract and contrary to the relevant provisions of the labour law。
Thus, the court ruled that the parties continued to perform their labour contracts。
The results of the “must serve” judgement vary widely
On 31 august 2015, he filed an appeal and filed his appeal in early september, but the second trial has so far been inconclusive。
In addition to the five captains of the east asian jiangxi branch, three of them, as in the case of wanqiang, were indicated in the contract as “must serve”. Three of the six cases are currently remitted for retrial after the first instance judgement, with the remainder awaiting a second trial。
Of these, the captain, who had served for 13 years in east asia, received his first trial judgement in december 2015. Unlike the manpower, the contract does not contain a clause under which the captain must have served for eight years。
At first instance, the court ruled that the captain had broken the labour relationship with both airlines, but that since the captain had unilaterally terminated the contract of employment during the mandatory period of service, he should have paid ec$ 2. 1 million in financial losses. Following the delivery of the judgement, both parties appealed, and the second trial remanded the case, and on 26 april the case was remanded and reopened。
:: follow-up
Airline companies: industry conventions restricting the movement of pilots
It is understood that on 26 november 2014, under the joint organization of the chinese air transport association and the chinese association of civil aviation pilots, four major aviation groups and a number of airlines signed the convention on the orderly movement of airline pilots in beijing, which makes it clear that, except for internal movements between holding companies, outflows will in principle not exceed 1 per cent。
In a previous interview with the media, the chinese co-chairman of the flight, li jun, stated that it was a long-term task to promote the orderly movement of civil aviation pilots, influenced by a shortage of human resources, a marked contradiction between supply and demand, and the particular manner in which pilots choose to be trained. The signing of the convention was an important initiative for market autonomy. Currently, 42 airlines are involved in the convention。
However, it is indicated that, for pilots, the mobility range does not exceed 1 per cent, meaning that the limits for each branch of the airline are very small, and that if more than one pilot of a company requests resignation, a waiting line is required, “if this so-called orderly flow is followed, it may take several years before my turn”。
Counsel zhang qianqiang, vice-president of the air law research council of the beijing society of law, stated that the convention restricts the right of pilots to equal employment, free choice of profession, etc., contrary to the provisions of the constitution, the labour code, the labour contracts act, etc., and seriously violates the legitimate rights and interests of the pilots and is considered null and void. Pilots are not parties to the convention, and conventions concluded between airlines are not legally binding on pilots and cannot override the law to deny or restrict their legal rights. The convention is much less a normative legal instrument, and it cannot be invoked as a basis for adjudication by the courts。
According to ms. Helen, the chief representative of a foreign airline, there are no such conventions or agreements, and control of movement is considered by the airline industry abroad to be tantamount to restricting the development of workers and constitutes a legal violation。
Analysis
The requirement to serve a “format clause” should be invalid
According to the captains interviewed, they were also newly graduated students at the time the contract was signed and were not too concerned “to sign where”。
Counsel stated that the length of service must be equivalent to the form clause in the labour contract. Its provisions on liability for non-compliance, which are contrary to the mandatory provisions of the law and administrative regulations, increase the liability of workers and exclude their primary rights, are null and void。
First, there is a clear distinction and a strict line between the “term of employment contract” and the “service period” established by law. A “service period” is based on the provision of specialized technical training, the provision of specialized training fees, the conclusion of training agreements and a clear agreement on the length of service。
There is no legal basis for the notion of “must serve” and there is no legal basis for considering “must serve”. Neither the “term of employment contract” nor the “term of service” deprives workers of their right to terminate their employment contracts in accordance with the law and restricts their right to resign from service in accordance with the law。
In addition, workers are not subject to “terms of employment contract” or “terms of service” when they are legally terminated. Even in the event of a breach of an agreement, the worker is required to pay the employer a breach of contract. The amount of the default grant shall not exceed the amount of the training costs to which the portion of the period of service has not yet been paid。
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