高齡勞動者在崗保護的當前困境與制度出路──基於《勞動合同法》的修法視角

Reflecting Labor Contract Law within Distribution Framework: Protection of Older Workers at Work

人口老齡化背景下，囿於受教育程度偏低及法治意識淡薄，大量高齡者成為社會資訊化和法治化轉型中的弱勢群體。現行《勞動合同法》多以勞動期限為據實施職工在崗保護，並未關注高齡勞動者在崗比率偏低、且從事低端行業比重較高的現實問題。無需促進就業、又暫時無法享受退休福利的在崗高齡職工成為制度保護的罅漏。現行法律推定高齡勞動者難有職業素能的提升空間、傾斜保護青壯年勞動者，且未就青壯勞動力市場和高齡勞動力市場辨證施治，高齡勞動者因此面對隱性的制度歧視。修改《勞動合同法》時應強化勞動合同對高齡勞動者和用人單位間勞動關係的規制力，緩釋在崗高齡勞動者的失業風險；同時完善在崗高齡勞動者的權利體系，形塑人文關懷與經濟價值並重的勞動合同制度。

Due to lack of legal consciousness and weak education background, older works are more likely to be confused in the transition to informatization society and in the process of rule of law. Labor Contract Law of the People’s Republic of China (hereinafter “Labor Contract Law”) in force places more importance on protection of employees based on their employment term while ignore the lower employment rate of senior employees and the higher employment rate of older workers in low-end industries. Senior employees who do not enjoy retirement welfare and who are not promoted in employment seem to be confronted with manifest discipline loopholes. Facing such invisible institutional discrimination, current law assumes that it is difficult for these workers to improve their professional quality. Thus the law currently in force give more attention to younger workforce without balancing the market between younger workforce and their elderly counterparts. In the rectification of Labor Contract Law, the legal force of Labor Contract between employee and employer should be reinforced in order to lower the risk of unemployment rate of elderly workers. Meanwhile, right system of senior workforce shall be optimized by establishing a labor system which not only value economic effectiveness but also humanistic concern.