Labor disputes refer toLabor relationsDue to the implementation of labor laws, regulations andLabor contractThe disputes that occur are the disputes between the workers and their units due to the rights and obligations in the labor relations.According to the specific contents of the rights and obligations involved in the dispute, they can be divided into the following categories:
1. Disputes arising from the confirmation of labor relations;
Labor relations include:Factual labor relations(Dispute) and LaborContractual relationship(Dispute).To safeguard the rights of workers (migrant workers), first confirm whether there is a labor relationship. The labor contract signed by both parties with seals may not have a labor relationship, and the labor contract without employment will not have a labor relationship.Labor relations have factual labor relations（Legal relationsFor labor relations,Cause of actionLabor dispute) and labor contract relationship (labor contract without employment, the legal relationship is contractual relationship, and the cause of the case is labor contract dispute).According to Article 1 (2) of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (I) (hereinafter referred to as the Judicial Interpretation of Labor Disputes (I))EmployerThere is no agreement betweenWritten labor contract, but the disputes that have formed labor relations belong to《labour law》Labor disputes specified in Article 2.
Chinese name
Labor dispute
Foreign name
Labor dispute
Pinyin
láo dòng zhēng yì
jurisdictional principle
Territorial jurisdiction
Processing organization
Arbitration Commission of the place where the defendant is located
the WestSome labor disputes are handled by ordinary courts and some by special labor courts.The special labor court deals with labor disputes, which began in Europe in the 13th centuryguildCourt, France, 1806leonCreated laborTribunal, afterItaly, Germany and other countries have established labor courts one after another.Many countries take four measures to deal with labor disputes, namely, voluntary mediation, compulsory mediation, voluntary arbitration and compulsory arbitration.Labor dispute, also known as labor dispute, refers toLabor legal relationsBoth parties, namely workers andEmployerIn the process of implementing labor laws and regulations or performing labor contractsLabor rightsandLabor obligationsDisputes arising from the relationship.
Labor disputes are common in reality.State organs, enterprises and institutionsSocial groupsAfter the employer establishes labor relations with employees, they can generally cooperate with each other and earnestly perform the labor contract.However, due to various reasons, disputes between the two sides are unavoidable.The occurrence of labor disputes not only makes the normal labor relations unable to be maintained, but also damages the legitimate interests of workers, which is not conducive to social stability.Therefore, we should correctly grasp the characteristics of labor disputes and actively prevent the occurrence of labor disputes. For the labor disputes that have occurred (also known as labor disputes), it refers to the disputes between the parties involved in labor relations in the process of realizing labor rights and performing obligations.
The parties to a labor dispute refer to both parties to the labor relationship - employees and employers (including natural persons, legal personsmanagement right(employers), that is, the rights holders and obligations bearers in the labor legal relationship.
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(1) Labor dispute is a dispute between parties involved in labor relations.One party to the labor relationship is a worker, and the other party is the employer.Labourers mainly refer to enterprisesIndividual economic organizationsEstablish laborContractual relationshipEmployees and state organsPublic institutions、Social groupsEmployees who establish labor contract relationship.Employers refer to enterprises, individual economic organizations, state organs, institutions, social organizations, etc. within the territory of China that have concluded labor contracts with workers.NoSubject of labor legal relationshipDisputes between identity persons are not labor disputes.If the dispute does not occur between the parties to the labor relationship, even if the dispute involves labor issues, it does not constitute a labor dispute.For example, between workersLabor processIn case of disputes between employers due toLabor mobilityDisputes arising between workers or employers andLabor administrationIn case of dispute between the laborer or employer andLabor administrative departmentDisputes arising in the labor administration and managementLabor service subjectWorkingService processThe disputes occurred in are not labor disputes.
(2) The content of labor dispute involvesLabor rightsandLabor obligations, is a dispute for the realization of labor relations.Labor relations are labor rights and obligations. If the dispute between workers and employers is not for the realization of labor rights and labor obligations, it does not belong to the category of labor disputes.The content of labor rights and labor obligations is very extensive, including employment, wages, working hours, labor protectionlabour insuranceLabor welfare, vocational trainingDemocratic management, rewards and punishments, etc.
(3) Labor disputes can be manifested asNon confrontational contradiction, can also be expressed asAntagonistic contradictionAnd they can transform each other under certain conditions.In general, labor disputes are manifested as non confrontational contradictions, which have adverse effects on society and economy.
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Different countries have different provisions on the scope of labor disputes.According to China《Labor Dispute Mediation and Arbitration Law》Article 2 stipulates that the scope of labor disputes is:
（1） Disputes arising from the confirmation of labor relations;
（6） Disputes arising from the performance of labor contracts between workers and employers;
（7） There is no agreement between the laborer and the employerWritten labor contract, but disputes occurred after the labor relationship has been formed;
（8） After retirement, the laborer has recourse against the original employer that has not participated in the social insurance planold-age pension, medical expensesIndustrial injury insurance benefitsDisputes with other social insurance;
（9） Other labor disputes stipulated by laws and regulations.
1．ordinary territorial jurisdiction。It is the most common way to determine the jurisdiction of the case according to the administrative region where the labor dispute occurs.
2．special jurisdiction。fingerlaws and regulationsIt is specially stipulated that the labor dispute between the parties shall belabor dispute arbitration committeeJurisdiction. In case of labor dispute, the enterprise and employees are not the sameboard of arbitrationIn case of jurisdiction, the arbitration commission in the place where the wage relationship is located shall have jurisdiction.
3．Exclusive jurisdiction。It means that laws and regulations stipulate that certain types of labor disputes can only beLabor Arbitration CommissionJurisdiction. If a labor dispute arises from the performance of an overseas labor contract within China, it can only be settled byContract performanceJurisdiction of the local arbitration commission;Another example is that some local regulations stipulate that foreign-invested enterprises shallA city divided into districtsThe first level labor arbitration commission shall have jurisdiction.
Hierarchical jurisdiction
It refers to the division and authority of labor arbitration committees at all levels to accept labor disputes.Generally, it is divided into: the district (county) level labor arbitration committee governs ordinary labor disputes in the area;The municipal level labor arbitration commission shall have jurisdiction over major labor disputes in foreign-invested enterprises or this city.
Transfer jurisdiction
It means that the labor arbitration commission has accepted the case withoutJurisdictionOf or inconvenient for jurisdictionlabor controversy, and transfer it to the labor committee that has the right or is convenient for hearing the case.Such as《Rules on Handling Cases by Labor Dispute Arbitration Committees》It is stipulated that the district (county) level labor arbitration committee may submit a collective labor dispute case to the labor arbitration committee at the next higher level for handling if it deems it necessary.
Designated jurisdiction
It refers to a dispute between the two labor arbitration committees over the jurisdiction of the case, which shall be negotiated by both parties and submitted to the common superior labor if negotiation failsAdministrative department, by the superior departmentDesignated jurisdiction。
According to different standards, labor disputes can be divided into the following categories:
1. According to the number of parties to a labor dispute, it can be divided into individual labor disputes andcollective labor dispute。
Individual labor dispute refers to the labor dispute between the laborer and the employer;Collective labor dispute refers to a labor dispute with more than three parties on one side and common reasons.
2. According to the content of labor dispute, it can be divided into: due to performanceLabor contractDisputes occurred;Due to performanceCollective agreementDisputes occurred;Dismissal, expulsion, dismissal and resignation of employees due to enterprise dismissalAutomatic resignationDisputes occurred;Due to the implementation countryworking hoursandRest and vacation, salary, insurance, welfare, traininglabor protectionDisputes arising from the provisions of.
3. According to the nationality of the parties, it can be divided intoDomestic labor disputesAndForeign labor disputes。Domestic labor disputes refer to the relationship between employers and employees withChinese nationalityLabor disputes between employees;Foreign related labor disputes refer to those withForeign related factorsLabor disputes, including labor disputes between Chinese institutions established outside China and Chinese personnel assigned to the institutionsforeign-invested enterpriseLabor disputes between employers and workers.
What countries follow in handling labor disputesprinciples of legislationThere are two kinds: one isVoluntary principleThe second is the principle of coercion.Follow differentbasic principleDifferent organizational systems and case handling systems will be formed.
Mediation orArbitration institutionIndependent from the government, both parties agree whether to mediate or arbitrate;The settlement agreement must be reached voluntarily by both parties;The arbitrators shall be selected by the parties.This has formed a "discretion" and "discretion"Double trackSystem.
According to the principle of coercion, mediation or arbitration institutions have more contact with the government, and the government often plays a major role in it;Any party to a labor dispute or the government may not negotiateon the merits of lawThe dispute shall be submitted to arbitration;The arbitrators shall be appointed by the arbitration institution.Under the principle of compulsion, some countries stipulate that the arbitral award has final effect, and some countries stipulate that if the parties refuse to accept the award, they can bring a lawsuit to the court, forming a "link between arbitration and trial"MonorailSystem.
Handling principles
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(1) On the basis of investigation, the principle of handling labor disputes according to law.
Mediation is one of the basic methods or ways to deal with labor disputes in enterprises.In fact, mediation can run through the whole process of resolving labor disputes.It means that after the labor dispute of an enterprise enters into arbitration or litigationboard of arbitrationOr the mediation work assessed by the court also refers to the mediation activities of the enterprise mediation committee on the enterprise labor disputes.Mediation here refers to the latter.The mediation activities carried out by the enterprise mediation committee mainly mean that after accepting the mediation application of both parties to the dispute, the mediation committee should first find out the facts and clarify the responsibilities, and on this basis, according to relevant laws and the provisions of the collective contract or labor contract, through its own persuasion and induction,Finally, the two parties are urged to voluntarily reach an agreement to resolve labor disputes on the premise of mutual concessions.
On October 7, 2018, Shenzhen built a four level mediation network for labor disputes.[2]
Labor dispute arbitration
Arbitration is also called arbitration.Arbitration, as one of the ways to deal with enterprise labor disputes, refers to the law enforcement action of the labor dispute arbitration organization to arbitrate the dispute cases between the parties to the dispute according to law.
Arbitration generally goes through the following stages:
(1) Case acceptance stage.This stage includes two tasks: first, the parties submit a written application for arbitration to the labor dispute arbitration committee within the prescribed time limit;The second is case acceptance.After receivingArbitration applicationTo be accepted orNot acceptedDecision of.
（2）Investigation and evidence collectionPhase.The purpose of investigation and evidence collection is to collect relevant evidence and materials, identify the implementation of disputes, and prepare for the next mediation or adjudication.Investigation and evidence collection work includes writingSurvey outlineAccording to the investigation outline, carry out targeted investigation and evidence collection, and verify the investigation results and relevant evidence.
(3) Mediation phase.arbitral tribunalOn the basis of ascertaining the facts, mediation should be carried out first, and efforts should be made to urge both parties to reach an agreement voluntarily.The arbitration tribunal that has reached an agreement needs to be preparedArbitration mediation statement。
(4) Adjudication phase.If the mediation of the arbitration tribunal is invalid or the parties renege before the arbitration mediation statement is served, and the mediation fails, the labor dispute settlement will enter the adjudication stage.The award of the arbitration tribunal shall be made by convening an arbitration meeting.It usually goes through the process of court investigation, debate and statement of both parties, and finallyArbitratorFully negotiate the disputed facts according toThe minority is subordinate to the majorityAnd make a decision based on the principle of.The arbitration tribunal shall make a mediation award after making an award.If the parties are not satisfied with the award, they maySpecified timeBring a lawsuit to the court.
(5) The implementation stage of mediation or award.The arbitration mediation statement shall come into force as of the date when it is served on the parties;Arbitral awardIt shall come into force after the expiration of the statutory prosecution period.Both parties should consciously implement the mediation or award after it takes effect.
Labor dispute litigation
Labor dispute litigation shall be conducted by the people's court in accordance withcivil actionThe procedure of laws and regulations shall be based on the labor laws and regulationslabor controversyConduct the trial.
Labor disputes should be settled timely and correctly.
2. At present, both programs have their own shortcomings:
(1) If the labor dispute is settled according to the labor dispute settlement procedure, the laborer needs to appear in court to provide evidence and go through complicated arbitration litigation procedures. The laborer's rights and interests are often not guaranteed due to his weak ability to respond to the lawsuit.
(2) As perlabor supervisionProcedural reporting and complaint can avoid the burden of appearing in court and responding to the lawsuit, and the cost is low. However, due to the lack of labor supervision in handling such casesJudicial systemWith the strong support of, labor security supervision is difficult to handle and implement.
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Types of labor disputes
According to the different causes of labor disputes, labor disputes can be divided into the following categories:
(1) Labor disputes arising from the dismissal, expulsion, dismissal, resignation and voluntary resignation of employees by the employer.
Dismissal is a serious violationLabor disciplineWorkers who refuse to correct after repeated admonitions and are not suitable to continue working in the unit shall be ordered to leave the unit according to lawAdministrative sanction。Dismissal means that the employer often absents from work without proper reasonsCritical educationThe employee who is invalid, has been absent from work for more than 15 consecutive days, or has been absent from work for more than 30 days accumulatively within one year, shall be subject to an administrative sanction to terminate the labor relationship with the unit according to law.Dismissal refers to the employer's serious violation of labor discipline, rules, regulations or serious disturbanceSocial orderHowever, if a worker who does not meet the conditions for dismissal or delisting is still invalid after education or administrative punishment, it is an administrative punishment to terminate the labor relationship with him according to law.Resignation is an act by which a worker resigns his original position and leaves the original employer.Voluntary resignation is a kind of behavior that a worker leaves his or her original job position and the original work unit on his or her own.All of the above causesTermination of labor relationsIt is also an important factor for labor disputes.
(2) Due to the customs of the implementing countrywages、Insurance、welfare、trainLabor disputes arising from labor protection regulations.
Wage is the labor remuneration that the laborer should get after he has worked.Insurance mainly refers to industrial injury, maternity, unemployment, pensionSick leave treatmentSocial insurance such as death, funeral, pension, etc.Welfare refers to the expenses used by employers to subsidize employees and their families and to organize collective welfare undertakings.Training refers toVocational and technical training。Labor protection refers to the protection of workers in the process of laborworking conditionsAnd various protective measures taken.Because the above provisions are complex and involve the vital interests of workers, it is not only easy to have disputes, but also easy to lead to intensified conflicts.
(3) Labor disputes arising from labor contracts.
The labor contract is concluded between the employer and the employee to establish the relationship of labor rights and obligationsDeclaration of intentionConsensus.Labor contract disputesConclusion of labor contract, performance, change and cancellationPossible。
(4) Other labor disputes stipulated by laws and regulations.
In addition, labor disputes can also be divided into collective labor disputes and human labor disputes according to whether the parties to labor disputes are the majority and whether the dispute content has commonness.yesarbitration awardIf you refuse to accept the letter, you should file a lawsuit with the court within 15 days. The court will no longer accept it if it expires.
According to《Labor Law of the People's Republic of China》In the spirit of Article 79, arbitration of labor dispute cases by the labor dispute arbitration committee is a necessary procedure for bringing a lawsuit.If the labor dispute arbitration commission fails to make an arbitration award or make a decision not to accept the case within the time limit, and the party concerned refuses to accept the administrative lawsuit brought to the people's court, the people's court will not accept it;If a party refuses to accept the labor dispute arbitration award made by the labor dispute arbitration commission, it may bring a civil lawsuit to the people's court.
In the early 1950s, China established a labor dispute settlement system. In 1950, the Ministry of Labor issued the Provisions on the Procedures for the Settlement of Labor Disputes, which used consultation, mediation, arbitration, and people's court trials to handle labor disputes.From 1956 to 1986, the system of letters and visits was adopted to deal with labor disputes.This has brought many problems: wasting human and material resources and making disputes protracted.After the implementation of the reform and opening up policy in the 1980s, labor disputes continued to increase.Issued by the State Council in July 1987《Interim Provisions on Handling Labor Disputes in State owned Enterprises》The labor dispute settlement system in state-owned enterprises has been restored.After the establishment of the socialist market economy, labor relations have changed and labor disputes have increased significantly,
Processing scope
① Disputes arising from the dismissal, expulsion, dismissal of employees, resignation and voluntary resignation of employees.
② Disputes arising from the implementation of national regulations on wages, insurance, welfare, training and labor protection.
③ Disputes arising from the performance of labor contracts.
④ Other labor disputes that shall be handled according to the provisions of laws and regulations.
The handler islabor dispute mediation committee of an enterpriseMediation;Arbitration by labor dispute arbitration committee;Trial by the people's court.On July 5, 1994, the Standing Committee of the National People's Congress deliberated and adopted《labour law》In Chapter 10 "Labor Disputes", the contents of the "Regulations on the Handling of Enterprise Labor Disputes" are affirmed, and it is specifically stipulated that the labor administrative department of the local people's government can organize relevant parties to coordinate and handle disputes arising from the signing of collective contracts and the parties' failure to resolve them through consultation;If a dispute arising from the performance of a collective agreement cannot be settled through consultation between the parties, it shall be settled through arbitration or court proceedings.
Q: Could you introduce the background and significance of the Supreme People's Court's formulation of this judicial interpretation?
Answer:labour lawAfter the promulgation and implementation, with the development of Chinese laborEmployment systemandsocial security system Reform,Labor relationsNew changes are constantly taking place. The number of labor dispute cases heard by courts across the country increases by about 20% every year, becomingCivil trialHot spots and difficulties in.
At the end of 2003, the First Civil Division of the Supreme People's Court began to draft Interpretation II and solicited opinions from all sectors of society.At the end of 2004, because《Labor Contract Law》The drafting work ofLegislative branchThe content that may be duplicated with the Labor Contract Law in the draft interpretation should be deleted for further comments.In April 2005, the Central Political and Legal Commission issued the Notice on Timely Handling Enterprise Labor Disputes in accordance with the Law and Practically Safeguarding Social Stability, requiring that judicial interpretations of relevant laws be made as soon as possible to further improve the handling of labor disputeslegal system。On this basis, the Supreme People's Court adjusted the content of Interpretation II again, based on the urgent need to solve the problem in practice, and decided to leave some immature opinions to be solved gradually. After further revision of the interpretation, the Supreme People's Court carefully listened to the Legal Working Committee of the Standing Committee of the National People's Congress, the Legislative Affairs Office of the State CouncilMinistry of Labor and Social Security, NationalFederation of Trade Unions, China Enterprise Confederation and relevant experts and scholarsJudicial CommitteeThe judicial interpretation was adopted after discussion.
significance
First, it is convenient for the majority of workers to accurately understand and master the provisions of the Labor Law and promote the protection of rights according to law.The labor law is a new category of laws, and the promulgation and implementation of a special labor law to adjust labor relations in China has only a history of more than ten years.What China used to do for a long time wasLabor employmentThe state is the sole subject of labor employment. The state uses administrative management to manage and adjust labor relations. Workers do not care much about the rights and obligations in labor relations. Even if disputes arise, they are generally resolved through administrative channels.
The Labor Law provides the labor andEmployerThe channel of "consultation mediation arbitration litigation" has been set up to solve labor disputes, but the majority of workers are neither very familiar with nor very accustomed to safeguarding their rights according to law, and disputes often find the wrong department to solve and miss the opportunity for arbitration;Some workers do not know how to safeguard their rights according to law, but take some drastic measures, such as collective shutdown and destructionProduction equipmentCollective petitions to block traffic arteries, besiege government agencies, or create mistakes and illegal practices such as individuals jumping off buildings to commit suicide, and violently demanding wages.
Our judicial interpretation mainly clarifies from the procedure how the parties safeguard their rights according to law and how to set up a convenient and effective judiciary for workers under the current legal frameworkProtector。
Second, it is convenient for the judges of the people's courts at all levels to accurately grasp the judicial standards and promotejudicial justice 。Labor dispute cases as a new typecivil case, labor relations and general civil relations, labor contracts and generalcivil contractCompared with the equality of the subject status of the parties, the freedom of the expression of the parties' willLabor standardsThere are great differences in the application of law between the law and other civil cases heard by the majority of judges, which are mainly reflected in the provisions of the labor lawPrinciple of comparison, matchinglaws and regulationsIn the process of continuous development and improvement, we have formulated this judicial interpretation, which answers some questions that the majority of judges have doubts about the application of the law. It is undoubtedly of great significance to help them accurately grasp the judicial yardstick and promote the fairness of handling cases.
Third, it is conducive to standardizing the labor employment system and management of enterprisesInstitutional reformAnd promote the establishment of a labor employment system that meets the requirements of the socialist market economy.In this judicial interpretation, we propose that the employer refuses to pay wagesTermination of labor contractMust be in writing for a long timeWage arrearsCannot apply within 60 daysArbitration periodRefusing to pay in defense and illegally receiving employmentbond. Workers who do not handle the work according to lawPersonnel filesThe transfer procedures of social security files should be handled according to law, and the employer shouldAssume joint and several liability，Collective agreementThe method of handling labor dispute cases, which is more effective than the internal rules of the enterprise, will certainly standardize the labor employment system andEnterprise management systemBring positiveFacilitation。
Fourth, it is conducive to establishing stable and harmonious labor relations and promoting the construction of a harmonious socialist society.In this judicial interpretation, we have highlighted some litigation measures to solve the difficulty of workers in demanding wages, and highlighted the protection of workersRight of actionOfjudicial process, affirmed the establishment of a diversified labor dispute handling mechanism, and affirmed the agreement reached under the auspices of the labor dispute mediation committeeMediation agreementIt advocates that workers should first claim their rights from the employing unit. Determining the direct claim of rights is also a form of applying for the interruption of the arbitration period, which strengthens the effectiveness level of collective agreements. The core is to promote the timely, effective and fair settlement of labor disputes and eliminate themLabor capital contradiction, reduce labor capital confrontation, promoteindustrial relationsAnd promote the construction of a harmonious socialist society.
The explanation has fully collected public opinion and wisdom
Q: This explanation involves the interests of hundreds of millions of workers and employers. Do you fully listen to their opinions?
A: The Supreme People's Court, in line with the guiding ideology of "justice for the people", has decided to publicly solicit opinions from people from all walks of life in the drafting process of some important judicial interpretations since 2002 in order to better reflect the public opinion and pool the wisdom of the people.
On September 30, 2004, the interpretationDraft for CommentsBy《People's Court Daily》、《China Labor and Social Security News》、“China Court Website”Announce and seek opinions from all sectors of society.Readers from all walks of life have given high attention and active participation. We have received 1294 online suggestions for revision and 203 letters from the masses.We have carefully summarized, sorted out and absorbed the opinions of the court system, relevant departments, experts and scholars, and the masses. The existing provisions are modified or formulated according to the opinions put forward by everyone.When the Judicial Committee of the Supreme People's Court discussed the judicial interpretation, the members strictly checked and made choices on many major difficult issues.
Defining "the date of labor dispute" from the perspective of helping workers safeguard their rights
Q: What is the purpose of the first interpretation of "the date when the labor dispute occurred"?
Answer: Article 82 of the Labor Law stipulates that the time limit for the parties to apply for labor arbitration is 60 days, counting from the date of the labor dispute.How to understand the "date of labor dispute", that is, how to know whether workers know or should know that their rights have been infringed, which involves the accurate calculation of the 60 day period, and whether workers can obtain their right to sueeffective protection The majority of workers are very concerned, and the local court often inquires.
The Labor Law legislates labor disputesApply for arbitrationThe time limit of is 60 days, which is intended to promote the settlement of labor disputes as soon as possible, so that the normal production order of the enterprise can be restored in timeLegal rights and interestsIt is intended to be positive to be protected as soon as possible and to have a stable life order as soon as possible.But in practice, this provision has become adouble-edged swordOn the one hand, both parties should be constrained to resolve disputes as soon as possible, so that labor relations can be harmonious and stable as soon as possible, and on the other hand, some workers should be encouraged tolegal proceedingsInadequate understanding and untimely application for arbitration lost the opportunity for arbitration.In practice, some employers, taking advantage of the weak legal knowledge of workers or the weak position of workers, advocate that if wages are not paid or social insurance premiums are not paid for more than 60 days after the application for arbitration period, they will not pay them, resulting in no complaints from workersIntensification of contradiction。In order to solve this problem, considering the disputes on the understanding of the above issues in practice, it mainly occurs in the disputes over arrears of wages and the termination of contractsEconomic compensationIn terms of disputes, this judicial interpretation explains pointedly: the dispute over arrears of wages is defined by the "written refusal" of the employer, otherwise, the "date when workers claim their rights" is taken as the standard.In case of wage arrears and compensation disputes arising from the termination of the labor contract, it is presumed that the "date of termination of the contract" is the date when the laborer should know that his rights have been infringed, but if the employer has promised the date of payment, the date when the period expires shall be the standard.
The salary that continues to be in arrears shall not be protested or refused to pay within the time limit for applying for arbitration for more than 60 days
Q: The wage arrears dispute is a prominent contradiction in the field of labor relations at present. What new measures have been stipulated in the judicial interpretation?
A: At present, people from all walks of life pay more attention to and reflect strongly on the issue of long-term wage arrears and the evasion of wage arrears.The Central Political and Legal Commission [2005] No. 18 also proposed that the Supreme People's Court should study the issue of the evasion of wages and issue relevant judicial interpretations as soon as possible.Long term wage arrears andMalicious wage arrearsOn the one hand, some enterprises tried to borrow for 60 daysArbitration applicationThe elimination of creditor's rights within the time limit has led to the intensification of labor capital conflicts. On the other hand, it has also led to the difficulty in clarifying the evidence of some cases and in adjudicating disputes. Therefore, judicial countermeasures must be proposed to solve this outstanding problem.
From the perspective of China's current national conditions, labor is still the basic means for workers to earn a living and maintain their family's livelihood. Wages are both a societyassignment problem , related tonational incomeThe distribution and consumption ofmassesTherefore, Article 2 of this interpretation stipulates thatDuration, the employer has been in arrears with wages for 60 daysArbitration prescriptionThe people's court shall not support the defense against payment.The basis for this interpretation is that although the Labor Law stipulates that wages should be paid on a monthly basis, it is not in line with the original intent of the legislation and human relations and ethics to require workers to ask for wages through arbitration or litigation every month during the existence of labor relations.Because from the perspective of social ethics of labor relations, workers should have a reasonable attitude towards the employers' failure to pay wages in a timely manner due to business difficulties and other reasonsToleranceWe should not use tough means such as arbitration to ask for wages every monthSocial employmentThe situation is severe, requiring workers to useLegal remediesIt is obviously unreasonable to solve the wage problem by means of maintaining "jobs". Therefore, the time limit protection for wage arrears should be lenient.
Second, yesfail to pay wagesAs for the problem of hiding, Article 14 of our interpretation stipulates that if the worker has evidence to prove that the employer has the possibility of hiding in arrears, the people's court will accept itProperty preservationAt the time of application, the employee's obligation to provide guarantee shall be mitigated or exempted, and timelyPreservation measures。This will provide a simple and efficient means of protection for the majority of workers.
（2） Judicial Interpretation (III)
On September 14, 2010, the Supreme Court heldpress conferencePublished《Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (III)》(hereinafter referred to as judicial interpretation).According to the judicial interpretation, for workers, recourse against employersovertime payIn case, the laborer shall bear the burden of proof. If the laborer has evidence to prove that the Employer has evidence, but the Employer fails to provide it, the Employer shall bear the adverse consequences.Deputy Director and Press Spokesperson of the General Office of the Supreme CourtSun JungongIntroduction: After two and a half years of research and demonstration, drafting and revision, and soliciting opinions, the Judicial Committee of the Supreme Court finally discussed and adopted the judicial interpretation.Although there are only 18 articles of judicial interpretation, the content of them is very rich.
In addition to focusing on the issue of providing evidence in the case of claiming overtime pay, the judicial interpretation also improved the handling of other labor dispute cases that are not clearly stipulated in the current law, and defined thescope of accepting casesIt clearly stipulates the subject of litigation in labor dispute cases.
Sun Jungong revealed that 295500 labor dispute cases in the first instance of the national courts in 2008, an increase of 95.3% over 2007;318600 cases were collected in 2009,Year on year growth7.82%；207400 new products were received from January to August 2010.
Judicial interpretation: If the laborer claims overtime pay, he shall bear the burden of proof on the existence of the fact of overtime.If the laborer has evidence to prove that the employer knows the existence of overtime, but the employer does not provide it, the employer shall bear the adverse consequences.
Interpretation (Du Wanhua, President of the First Civil Trial Chamber of the Supreme Court, Deputy Director of the General Office of the Supreme Court, and Press SpokespersonSun Jungong）The current law does not clearly stipulate the evidence in the case of claiming overtime pay.In similar cases, it is difficult for ordinary workers to provide evidence, and employers generally do not consciously produce evidence.This law actually useslegal meansUrge the employing unit to provide factual evidence and safeguard the rights and interests of workers.At the same time, the laws and regulations do not favor workers. The premise for employers to provide evidence is that workers have evidence that can prove the existence of the fact that employers master overtime, which also curbs the behavior of individual workers deliberately creating difficulties for employers.
For overtime work, the Supreme Court believes that enterprisesProduction and operationThere are also off season and peak season. Enterprises and employees can work overtime through equal consultation.The employer shall pay overtime pay to the employee for overtime work, but overtime work shall be considered from the physical condition of the employee, and the employee shall not be extravagant or forced to work overtime. The employee has the right to refuse to work overtime.
Units without license can be listed as litigants
Judicial interpretation: laborer and failure to handleBusiness license. The business license is revoked or the businessTerm expiresWhere a dispute arises over an employing unit that continues to operate, the employing unit or its investors shall be listed as the parties.
If an employing unit that has not handled the business license, has its business license revoked, or continues to operate after its business term expires, and borrows the business license of another person to operate by means of affiliation or other means, it shall issue the employing unit and its business licenseDebitListed as a party.
Interpretation (Du Wanhua, President of the First Civil Trial Chamber of the Supreme Court, Sun Jungong, Deputy Director of the General Office of the Supreme Court and Press Spokesman)market economyUnder conditions,EmployerThe types are complex, the forms are diverse, even the good and the bad are mixed, and the subject is unknown.In real dispute cases, it often occurs that some employing units have not handled business licenses, have expired their business term, or borrow others' business licenses to operate in the form of affiliation. After the labor dispute between workers and them, the employing units shuffle or flee each other, leaving workers in a dilemma of safeguarding their rights.
The judicial interpretation clarifies the litigation object of the workers supported by the court in these cases, which legally avoids these situations.Some attempts to evade legal sanctions in this way will not succeed.
The amount of meal tickets and goods should be equal to wages, and the Supreme Court will not object
Recently, some media reports in WuhanConstruction siteThere is a practice of using meal tickets to deduct wages.Some construction workers receive meal tickets ranging from 400 to 1000 yuan per month“Money ticket”In addition, only a few hundred yuan of cash can be received every month.As for the practice of offsetting wages with meal tickets, the boss of the construction site called it a kind of borrowing.
Du Wanhua, President of the First Civil Adjudication Tribunal of the Supreme People's Court, said that the Supreme People's Court would not hold that if the workers voluntarily pledged their wages with meal tickets or even goods through equal consultation, which was equal to the amount of wages and remunerationObjections。However, if it is not the voluntary behavior of the employees, the court should support the employees' demands.
（1） If the labor and personnel dispute arbitration committee is deemed to have no jurisdiction over the case after examination, it shall inform the parties to apply to the labor and personnel dispute arbitration committee with jurisdiction for arbitration;
（2） If it is considered that the labor and personnel dispute arbitration committee has jurisdiction after examination, it shall inform the party concerned to apply for arbitration, and notify the labor and personnel dispute arbitration committee in writing of its examination opinions. The labor and personnel dispute arbitration committee shall stillNot acceptedIf the parties bring a lawsuit on the labor dispute, it shall be accepted.
Article 2 Types of arbitral awardsArbitral awardThe determination shall prevail.
The arbitral award does not state that the award isFinal awardOr non final award, if the employer refuses to accept the arbitration award and files a lawsuit to the basic people's court, it shall be handled according to the following circumstances:
（1） The basic people's court shall accept the arbitration award that is not final after examination;
（2） The basic people's court shall not accept the arbitration award that is considered final after review, but shall inform the employer that it can reject the award after receiving itRulingApply to the intermediate people's court in the place where the labor and personnel dispute arbitration commission is located for cancellation of the arbitration award within 30 days from the date of the arbitration;If the case has been accepted, it shall be ruledDismiss a suit。
Article 3 The intermediate people's court shall, when hearing a case in which an employing unit applies to revoke a final awardCollegial panelHearing。After reviewing the files, investigating and questioning the parties, if there are no new facts, evidence or reasons, and the collegial panel considers that it is unnecessary to hold a court session, it may not hold a court session.
The intermediate people's court may organize both parties to mediate.If a mediation agreement is reached, it can be madeConciliation statement。If one party fails to perform the mediation agreement within the time limit, the other party may apply to the people's court for compulsory execution.
Article 4 The parties shallPeople's Mediation CommitteeUnder the auspices ofPayment obligationIf both parties deem it necessary to reach a mediation agreement, they can jointly apply to the basic people's court where the people's mediation committee is located for judicial confirmation.
Article 5 A worker is assigned to work in a new employer from the original employer for reasons other than his own, and the original employer has notPay economic compensation, the laborer terminates the labor contract with the new employer according to Article 38 of the Labor Contract Law, or the new employer proposes to terminate the labor contract with the laborerTermination of Labor Contract, when calculating and paying economic compensation ordamagesThe people's court shall support the laborer's request that his working years in the original employer be consolidated into the working years in the new employer.
If an employer meets one of the following conditions, it shall be deemed as "the employee is assigned to work from the original employer to the new employer for no reason of his own":
（1） The workers are still thereWorkplace, work position,Labor contract subjectChange from the original employer to the new employer;
（2） The employer assigns or appoints workers in the form of organizationJob transfer；
（3） Labor transfer due to the merger or division of the employer;
（4） Employer and itsAffiliated enterprisesConclude labor contracts with workers in turn;
（5） Other reasonable circumstances.
Article 6 In the labor contract orConfidentiality AgreementThe non competition restriction is stipulated in, but it is not stipulated to give the laborer the right to terminate or terminate the labor contracteconomic compensation The laborer has fulfilled the obligation of non competition and requires the employer toTermination of labor contractOr 12 months before terminationaverage wageThe people's court shall support 30% of the total amount of economic compensation paid monthly.
30% of the average monthly salary specified in the preceding paragraph is lower than the place where the labor contract is performedMinimum wageThe minimum wage of the place where the labor contract is performed shall be paid.
Article 7 If the parties agree on the non competition restriction and economic compensation in the labor contract or confidentiality agreement, and the parties terminate the labor contract, unless otherwise agreed, if the employer requires the employee to perform the non competition obligation, or the employee requires the employer to pay economic compensation after performing the non competition obligation, the people's court shall support it.
Article 8 If the parties have agreed on the non competition restriction and economic compensation in the labor contract or confidentiality agreement, and the economic compensation has not been paid for three months due to the employer's reasons after the labor contract is dissolved or terminated, the people's court shall support the laborer's request for the cancellation of the non competition restriction.
Article 9 During the period of non competition, the people's court shall support the employer's request to terminate the non competition agreement.
When canceling the non competition agreement, the people's court shall support the employee's request for the employer to pay the employee an additional three months of non competition economic compensation.
Article 10 The laborer, in violation of the stipulation on non competition, shall report to the EmployerPay liquidated damagesAfter that, the employer requires the workers to follow the agreementContinued performanceThe people's court shall support the obligation of non competition.
Article 12 If an employer that has established a trade union organization cancels a labor contract in accordance with the provisions of Articles 39 and 40 of the Labor Contract Law, but fails to notify the trade union in advance in accordance with the provisions of Article 43 of the Labor Contract Law, and a worker claims compensation from the employer for illegal termination of the labor contract by the employer, the people's court shall support it,Except that the employing unit has supplemented and corrected the relevant procedures before the prosecution.
Article 13 After the implementation of the Labor Contract Law, if the labor contract cannot continue to be performed because the employer does not continue to operate at the end of its business term, and the worker requests the employer to pay economic compensation, the people's court shall support it.
Article 14 Foreigners and stateless persons sign labor contracts with employers in China without obtaining employment certificates according to law, andHong KongSpecial Administrative RegionMacaoSpecial Administrative Region andTaiwanThe people's court will not support the request of the party concerned to confirm the existence of a labor relationship with the employer when the local residents sign a labor contract with the mainland employer without obtaining an employment certificate according to law.
Holding《foreign expert certificate》Foreigners who have obtained the Work Permit for Foreign Experts in China and have established employment relations with employers in China can be regarded as labor relations.
Article 15 If the relevant judicial interpretations promulgated by the Court before the implementation of this interpretation conflict with this interpretation, they shall not apply from the date of implementation of this interpretation.
These Interpretations shall apply to labor dispute cases that have not been finally adjudicated after the implementation of these Interpretations;The case has been finally tried before the implementation of this interpretation, and the party concerned applies for retrial orTrial supervision procedureThese Interpretations shall not apply to a decision on retrial.[3]
Burden of proof
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（1） The burden of proof of the existence of labor relations.The existence of labor relations between workers and employers is the premise and basis for determining that disputes belong to labor disputes.In practice, the labor dispute arbitration organ stipulates that the labor contract must be provided by the laborer to apply for arbitration, otherwise the case will not be filed.It is mandatory for employers to sign labor contracts with workers, but many employers do not sign labor contracts with workers to avoid responsibility.Arbitration institutionTaking the labor contract as the basis for acceptance is obviously an erroneous application of the law.The author believes that as long as workers provide evidence to prove that they have provided labor for employers, arbitration institutions should accept labor cases.If the employer denies the labor relationship between the two parties, it shall provide evidence.
(II)Limitation of labor dispute arbitrationThe burden of proof.Article 82 of the Labor Law stipulates that the party who requests arbitration shall submit a written application to the labor dispute arbitration committee within 60 days from the date of the occurrence of the labor dispute.Labor Dispute Arbitrationregulations》Article 22 stipulates that the parties shall, within 6 months from the date when they know or should know that their rights have been infringedWritten formApply to the Arbitration Commission for arbitration."The date when the labor dispute occurred" is obviously different from "the date when the party knew or should have known that its rights were violated".However, Article 85 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of the Ministry of Labor stipulates that the date when a labor dispute occurs refers to the date when the parties know or should know that their rights have been infringed.according toSuperposition methodThe principle of superior to subordinate law, the Regulation stipulates that it shall lose its effectiveness after the implementation of the Labor Law.In fact, the judicial and arbitration departments are applying the regulations.Practice shows thatLimitation periodIt is obviously not conducive to workers.According to the requirements of the burden of proof, the party claiming to exceed the time limit shall provide evidence to prove whether the arbitration time limit has been exceeded.However, in practice, there are often arbitration tribunals or people's courts that require workers to provide evidence to prove that their application for arbitration does not exceed the time limit.From the experience of handling labor disputes, there is often a long negotiation process between the labor and management parties when disputes occur. Since both parties are on high alert, they will try to avoid leaving the other partyDocumentary evidence。When the laborer is forced to apply for arbitration after negotiation fails, it has been far more than 60 days.Although the workers knew that their rights had been violated when the two sides began to negotiate, the dispute did not actually occur.The arbitration tribunal and the people's court not only fail to safeguard the rights and interests of workers, but also encourage employers to negotiate when a dispute occurs when negotiation beginsProcrastinationAvoid time limitation.Therefore, the author believes that the employer should provide evidence to prove the time of the dispute. If the employer cannot provide evidence, it should be considered that the time limit for the laborer to initiate arbitration has not expired.
（3） The burden of proof in labor remuneration disputes.Labor remuneration disputes are an important part of labor disputes. According to the Supreme People's Court《Provisions on Evidence in Civil Procedure》Article 6 stipulates that in case of disputes arising from the decisions made by the employer, such as dismissal, expulsion, dismissal, termination of labor contract, reduction of labor remuneration, calculation of working years of workers, the employer shall bear the burden of proof.On the surface, this provision gives the employer the burden of proof on the issue of labor remuneration, but in fact it does not have much constraint on the employer.This is because:
First, according to this provision, the employer will bear the burden of proof only when there is a dispute over the "decision" of the employer to dismiss, remove, dismiss, terminate the labor contract, and reduce labor remuneration. However, the employer does not issue a written document when making the above decision, and the worker obviously cannot prove that the employer has made a similar decision.
Second, according to this provision, the burden of proof can only be borne by the employer when it makes a decision to reduce labor remuneration.In order for this provision to be implemented, workers must first prove that their labor remuneration is reduced, and then the employer will provide evidence of the reduction.But this is basically impossible for workers.
In order to make up for the lack of laws, the author believes that it should be stipulated that "in case of disputes over labor remuneration, the employer shall bear the burden of proof".This is because the amount of labor remuneration must be determined byTaskAndSalary paymentStandards.If there is no labor contract, the laborer can neither prove the wage payment standard nor prove the labor task he has completed.The reason is very simple, that is, it is impossible for workers to ask employers to sign for confirmation after completing their labor tasks.《Interim Provisions on Wage Payment》(1994) Paragraph 3 of Article 6 stipulates that the employer must record in writing the amount and time of wages paid to workers, the name and signature of the recipient, and keep it for more than two years for future reference.Therefore, the employer is obliged to record and keep work records.The legislation should stipulate that when a dispute arises between labor and capital over labor remuneration, the employer should provide evidence.Of course, there are still two problems that cannot be solved even though such a provision is made: first, what should employers do if they forge records;Second, what should we do if the employer has no records or lost them.The author believes that for the first question, it should be stipulated that the monthly work records of employers must be signed and confirmed by workers to prevent employers from forging or altering records.For the second question, it can be stipulated that if the employer cannot provide complete records, it should adoptFixed compensationThe system calculates the amount of compensation, that is, it stipulates that the wage payment standard shall be determined according to twice the average wage of the same industry, and the work tasks of workers shall be determined according to the labor contract.
To sum up, the relationship between workers and employers is both civil and similarAdministrative relationsnature.Trial of labor dispute cases cannot be mechanically applied“Who advocates who provides evidence”In order to better safeguard the legitimate rights and interests of workers, we should scientifically allocate the burden of proof according to the specific circumstances.
The Labor Law of the People's Republic of China stipulates that "the parties to a labor dispute shallarbitration awardIf they are not satisfied, they may bring a lawsuit to the people's court within 15 days from the date of receiving the arbitration award.One party within the statutory time limitNon prosecutionIf it also fails to perform the arbitral award, the other party may apply to the people's court for compulsory enforcement. "
（1） The matters adjudicated are not within the scope of labor dispute arbitration, or the labor dispute arbitration institution has no right to arbitrate;
（2） There is definite error in applying the law;
(III)ArbitratorWhen arbitrating the case, he committed irregularities for personal gain or perverted the law in making an award;
（4） The people's court finds that the execution of the labor dispute arbitration award is contrary toSocial public interestsOf.
The people's court refuses to executeRulingThe party concerned shall be informed that it may bring a suit in the people's court in respect of the labor dispute within 30 days after receiving the written order.
Solution
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（1）Consultation procedure。Consultation refers to the direct consultation between the laborer and the employer on the disputed issues to find a specific solution to the dispute.Different from other disputes, one party to a labor dispute is a unit, and the other party is a unit employeeLabor relationsSo that they can understand each other.In case of disputes, it is better to negotiate first, and eliminate the estrangement through voluntary agreement.In practice, there are many cases where employees and units reach an agreement through consultation to resolve disputes, and the effect is very good.However, the negotiation procedure is not a necessary procedure for handling labor disputes.The two sides can negotiate or not negotiate. It is entirely voluntary and no one can force it.
(2) Apply for mediation.conciliation proceedingsIt refers to that one party to a labor dispute submits the labor dispute that has occurred toLabor dispute mediation committeeProcedures for applying for mediation.According to《labour law》Provisions: In the employing unit, a labor dispute mediation committee may be set up to mediate the labor disputes of the unit.The members of the mediation committee shall be composed of representatives of the unit, representatives of the staff and workers and representatives of the trade union.Generally have legal knowledgePolicy levelAnd actual working ability, and understanding the specific situation of the unit, which is conducive to resolving disputes.Except for signing and performancecollective contract of laborAll disputes can be settled bylabor dispute mediation committee of an enterpriseMediation.However, like the negotiation procedure, the mediation procedure is also chosen by the parties voluntarily, andMediation agreementNeitherEnforcement, if one party reneges, it can alsoArbitration institutionApply for arbitration。
（3）Arbitration procedure。The arbitration procedure is that one party to a labor dispute submits the disputelabor dispute arbitration committeeProcedures for processing.This program hasLabor dispute mediationFlexible and fast, and with the force of enforcement, it is an important means to solve labor disputes.The labor dispute arbitration commission is authorized by the state and independently handled according to lawlabor controversySpecialized agencies of.Applying for labor arbitration is one of the selection procedures for resolving labor disputes, and is also the pre procedure for bringing a lawsuit. That is, if you want to bring a lawsuit to fight a labor lawsuit, you must go through the arbitration procedure, and you cannot directly bring a lawsuit to the people's court.
（4）Proceedings。According to《labour law》Article 83 stipulates: "If the parties to a labor dispute are not satisfied with the arbitration award, they may receive it from themselvesArbitral awardBring a lawsuit to the people's court within 15 days from the date of.One party within the statutory time limitNon prosecutionAnd fails to perform the arbitration award, the other party may apply to the people's court for compulsory enforcement. "Litigation procedure is what we usually call a lawsuit.The initiation of litigation procedure is the procedure initiated after the party who refuses to accept the ruling of the labor dispute arbitration commission brings a lawsuit to the people's court.Litigation procedure has a strong legal and procedural nature, and the judgments made are also enforceable.
data statistics
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On March 8, 2024, at the second session of the 14th National People's Congress, the President of the Supreme People's CourtZhang JunThe work report of the Supreme People's Court was made: in 2023, the people's courts at all levels nationwide will receive 45.574 million cases and close 45.268 million cases, up 15.6% and 13.4% year on year respectively.142000 labor dispute cases involving new business types were concluded, down 10.2% year on year.[5]
