The higher people's Court of Beijing, Beijing City, the labor dispute arbitration committee issued "Notice of Beijing Higher People's court, the Beijing labor dispute arbitration committee about the meeting minutes" applicable law seminar of labor dispute cases

 

First, the second intermediate people's court civil court;

District, county people's court civil court and sent the court:

In order to solve the difficult problems to deal with cases of labor disputes in law enforcement, promote the unity of a family office, the higher people's Court of Beijing people and the Beijing labor dispute arbitration committee recently held a joint seminar on labor dispute case applicable legal issues, urgent to resolve labor disputes in the case of the procedural and substantive aspects of the problem are discussed, to solve some problems of consensus, and formed the meeting minutes. The "Beijing Municipal Higher People's court, the Beijing labor dispute arbitration committee about the meeting minutes" applicable law seminar labor dispute cases issued to you, for the reference of the trial practice.

 

A court in Beijing high people's Court of the people

　　　　　　　　　　　　　　　　　　　　　　　　　      Two hundred nine years in August 17th

 

The higher people's Court of Beijing, Beijing City, the labor dispute arbitration committee about the meeting minutes the applicable law of seminar of labor dispute cases

In order to solve the difficult problem of labor dispute cases in law enforcement, promote the unity of a family office, Beijing Municipal Higher People's Court of the people and the Beijing labor dispute arbitration committee recently held a joint seminar on labor dispute case applicable legal issues, Beijing City three levels of courts in the trial work of the labor dispute, Beijing City, and the judges the two labor dispute arbitration committee for labor dispute arbitration work part of the leadership and the arbitrator to participate in the discussion, the participants in the trial of labor dispute cases to solve the procedural and substantive aspects of the problem are discussed carefully enough, to solve part of the problem agree, the summary is as follows:

 

Scope of a labor dispute case, a problem

　　1, according to the "labor dispute mediation and Arbitration Law", "Provisional Regulations on collection and payment of social insurance premiums", "social insurance audit approach", "labor security supervision regulations" and the arbitration and trial practice, the accepted social insurance disputes shall comply with the following principles:

(1) employers are not for the workers to establish social insurance, social insurance fee payment or not according to the rules of the wage base in full payment of social insurance premiums, claims to pay workers, generally inadmissible, inform the workers to solve by the labor administrative department;

(2) because the employer fails to pay social insurance premiums for the employee, lead workers can not enjoy inductrial injury, unemployment, maternity, medical insurance, require the employer to pay compensation for the losses or payment of relevant fees according to the provisions of workers, should be accepted;

(3For migrant workers) the employer fails to pay old-age insurance, compensation for the loss of the employer requires the migrant workers and employers in the termination or dissolution of the labor contract, it shall be accepted.

　　2Due to the employer, delay conversion or file is missing, require the employer to pay compensation for the losses of the workers belonging to the dispute, labor dispute cases acceptance scope, except public security organs receive part of social workers in a specific historical period of the archives dispute.

　　3, workers and employers because of housing provident fund payment, deal with emeritus formalities disputes, does not belong to the scope of labor dispute cases.

 

The applicable law of two, about one arbitration case

　　4According to regulations, "labor dispute mediation and Arbitration Law" in article forty-seventh, for a final ruling of the labor dispute cases has two kinds, one is the small case, which limited recourse labor remuneration, work-related injury medical expenses, economic compensation or damages, no more than the parties applying for arbitration when the monthly minimum wage standard twelve months the amount property disputes; two is the standard clear case, namely for implementing the national labor standards in working hours, rest and vacation, disputes. For the first case, the parties applying for arbitration shall generally be the total amount of the claim as the standard to determine whether to apply a final ruling of the labor dispute cases. For the second cases, the cases are generally does not involve a specific amount, mainly refers to the due to implement state labor standards debate.

　　5The final award, workers at the basic people's court, and the employing units in accordance with "Regulations of labor dispute mediation and Arbitration Law" in article forty-ninth to the intermediate people's court for the cancellation of the arbitration award, the intermediate people's court shall not accept. Has been accepted, should be ruling the termination of litigation. But the basic people's court, on the employer's request should be handled. The prosecution withdrawal after or as a result of than the prosecution dismissed the prosecution, the employer within thirty days after receiving the can to the intermediate people's court, the labor dispute arbitration commission is located for the cancellation of the arbitration award as of the date of order. The intermediate people's court for the cancellation of the arbitration award for the employing units in the basic people's court after the acceptance of the application, or in accepting the workers for the final award after the case, shall, prior to the trial to examine whether exist at the same time the cancellation of the Arbitration Litigation and laborer refuses to accept the final award of the prosecution, so that the two level courts regarding the case for coordination and communication.

　　6According to the actual needs of the trial, for the withdrawal of the CD case, the people's court may apply to the Arbitration Commission of the original ruling Labor Dispute access to the files, the labor dispute arbitration commission shall provide records. The people's court made the ruling, the Arbitration Commission shall send to the original ruling Labor dispute.

 

The other three, procedural aspects of the problem

　　7In the labor arbitration procedure, has been omitted in the common parties must participate in the arbitration, the people's court shall be appended in accordance with the law in the trial procedure, there is no need to arbitration. Matters left out of the labor dispute arbitration commission, the people's court may make direct.

　　8According to the "regulations, several issues concerning labor dispute case applicable legal interpretation of the Supreme People's court" article sixth: "the people's court accepts the labor dispute cases, the increase in litigation request, such as the litigation and litigation of labor disputes are indivisible, shall be tried together", the provisions of the "inseparability" is refers to the claim and arbitration matters increase is based on the same facts and produce, with dependence between.

　　9If both parties are not the same, the labor dispute arbitration committee for arbitration award, to a people's court, the parties are the plaintiff and the defendant, to prosecute the party as "the plaintiff (respondent)", after the prosecution party as "the defendant (the plaintiff)".

　　10, "labor dispute mediation and Arbitration Law" article forty-eighth and forty-ninth of the starting point of the period, should be consistent with the relevant provisions of the civil procedure law "", from the next day; "labor contract law" nineteenth article called "above" "dissatisfaction" definition, should be consistent with the general principles of the civil law "provisions" article 155th.

　　11According to the second paragraph, the workers "labor contract law" thirtieth and "labor dispute mediation and Arbitration Law" the provisions of article sixteenth to the people's court for a payment order, shall be in accordance with the "provisions of the civil procedure law" the seventeenth chapter.

 

Confirmation of labor relations issues, about four

　　12In cognizance, between the employer and the employee have labor relations, can consider the following factors: (1) employers and workers in accordance with the law, regulations of the subject qualification (2) regulations employers to establish for workers, workers for labor management unit, in the arrangement of the employer paid labor (3) of their labor is a part of unit of choose and employ persons.

　　13, for their skills, knowledge or facilities to provide labor or service employers, to bear the risk of operation, and unit of choose and employ persons without identity affiliation, not the employer management or control personnel, should be the relationship between that and the employer doesn't belong to the labor relations.

　　14The workers, long-term not supplied to the employer of labor, the employer also long no longer pay the labor remuneration to the employee and related treatment, long two not find, can be identified during this period, the parties do not enjoy and assume the rights and obligations of labor law.

　　15Foreigners, Hong Kong and Macao residents, not dealt with in accordance with the "employment permit for foreigners", "Hong Kong and Macao employment permit", signed with the employing unit of labor contract shall be invalid labor contract. Resident foreigners, Hong Kong and Macao regions have already performed labor, the employer to pay labor remuneration contract.

　　16No, the resident representative offices of foreign enterprises by foreign employment service unit directly recruit China employees, should be recognized on labor relations, employment relationship.

 

Five, about the problems related to labour remuneration of

　　17The employing unit shall, according to the wage payment cycle compile wage payment records, and kept for at least two years for reference. Workers and employers because of labour remuneration disputes, within a period of two years to save, the employer shall bear the burden of proof. Beyond this period should apply the "who advocates, who bears the burden of proof rules of distribution of burden of proof".

"Two years" refers to the laborer applies for arbitration within projected forward two years.

　　18The wage settlement and payment cycle, after the expiration of the term, the employer shall pay wages in the labor agreement with the latest date, shall not exceed the agreed payment date seven days. Such as salary payment day holiday or rest day, shall pay the latest working day in advance.

　　19For the overtime pay, to determine the day or hour wage base, should refer to "Beijing City wage payment regulations" provisions of article forty-fourth of the executive.

The unit and the laborer in the labor contract between the wage standards, but also agreed to the minimum wage standard or lower wage stipulated in the labor contract as the base of overtime wages, workers in the labor contract that the wage as overtime wage base number, should be supported.

　　20, to be confirmed by the employer and the employee attendance records can be identified as the existence of overtime fact basis. The workers only electronic clock in the cognizance of the fact of overtime requirements, are generally not supported.

　　21Because of the nature of the work, the employer and the production characteristics cannot implement standard working hour system, should ensure that workers daily working time is not more than8Hourly, weekly working time is not more than40Hours, at least one day off each week, staff little rest day, should not be regarded as overtime.

　　22The following case, the worker requires employers to pay, overtime pay, do not support: (1) employers because of safety, fire protection, holidays and other needs, arrange the workers engaged in the job has nothing to do with duty (2) to arrange the workers engaging in the duty and work related, but duty during the rest of the.

In this case, the worker may require the employing units in accordance with the labor contract, collective contract regulations, pay the corresponding treatment.

　　23, the unit and the laborer although not agreed in writing the actual payment of salaries are included in overtime, but the employer has evidence that has been paid wages include normal working hours, wages and overtime pay, that has the employer shall pay wages include overtime wages. But after the conversion of the normal working hours shall not be lower than the local minimum wage standard wage.

　　24The decision, the employer to terminate the labor contract with employees by the labor arbitration committee or the people's court revoked according to law, the employer payment of workers that the decision to arbitration or litigation period wages, should according to the following principles: (grasp1) decision of the employing units to make only because of flawed procedure be revoked in accordance with the law, the employer shall pay the minimum wage this period of salary to laborer (2) treatment of the employing units to make decisions because of problems in the aspect of entity is revoked according to law, employers should be the normal labor wage payment of wages to the laborers during the above period.

 

Six, about the economic compensation and compensation issues

　　25, "labor contract law" the implementation of the labor contract duration, termination in "the implementation of the labor contract law" after the dissolution or, in accordance with the "labor contract law" forty-sixth shall pay economic compensation,2007Years12Month31The economic compensation in accordance with the "labor law" has stipulated and matching calculation,2008Years1Month1Future economic compensation in accordance with the "labor contract law" calculation.

The economic compensation for the base of workers in the labor contract is rescinded or terminated the average wages of twelve months, no longer piecewise calculation.

According to the "labor contract law" article forty-seventh, article eighty-seventh, "labor contract law" the twenty-fifth regulation, employer violates the provisions of the labor contract law or terminate the labor contract, pay compensation shall be calculated as of the date of use of labor: in accordance with the "labor contract law" article forty-seventh to calculate the economic compensation, multiplied by the2That is, for compensation, no longer piecewise calculation.

The employer violates the relevant provisions of the "labor contract law", the need to pay his monthly pay two times, its pay doubled wages should not be counted as economic compensation and compensation calculation base.

　　26In labor, arbitration or litigation procedure, workers on the basis of "labor contract law" the provisions of article eighty-fifth, require the employer to pay compensation, labor arbitration committee or the people's court shall not support.

　　27Breach and termination of labor contract, the economic compensation for the original labor department "(" formulated by the Ministry of labour (1994)481No.) has not been revised or abolished, so workers due recourse require the employer to pay the labor remuneration25%The economic compensation, or pay for requests to terminate the labor contract by the employer50%Additional economic compensation, labor arbitration committee or the people's court may reference to the implementation of the above provisions.

　　28After the expiration of the period, labor contract, laborer still worked for the employer, the employer fails to conclude a written labor contract with the laborer, the employing units shall the labor contract expires to full a year ago to pay two times of monthly wages of workers. Calculation of base pay two times to the corresponding month wages should prevail.

　　29, employers are not ahead of thirty days notice of labor contract expire, the employee demands the employer shall not in accordance with the "labor contract law" provisions of article eighty-seventh of the payment of damages, support; workers employing units in accordance with the requirements stipulated in "" Beijing labor contract provisions of article forty-seventh, each delayed one day to pay a daily wage compensation the, shall support.

　　30, the employer dissolves or terminates the labor contract, the settlement agreement signed voluntary, mandatory provisions do not violate laws and administrative regulations, perform is completed, Party estoppel, maintains that the two sides agreed invalid, generally did not support. But the agreement the rights and obligations of both parties clear imbalance, the arbitration commission or the people's court may be appropriately adjusted.

The employer and the employee on the treatment of inductrial injury insurance agreement to fulfill after, laborer with agreed payment standard is less than the statutory standards for arbitration, in time to require the employer to make up the difference by the statutory standards, should be supported.

　　31, "labor contract law" after the implementation, the employer is not according to the provisions of insurance for workers to establish a social insurance relations, laborers request to terminate the labor contract and require the employer to pay economic compensation, it shall be supported, but life should pay economic compensation2008Years1Month1Start date. The employee by the employer fails to pay the full amount of social insurance premiums or if the request on the grounds of termination of labor contract and require the employer to pay economic compensation, not support.

　　32To the laborers, the employing units in the implementation of "labor contract law" without timely and full payment of labor remuneration is a request to terminate the labor contract, and require the employer to pay economic compensation, in addition to the Supreme People's Court on the trial of labor dispute applicable law "interpretation of several issues" the fifteenth article of the cases, does not support. In accordance with the provisions of article fifteenth of the judicial interpretation of the situation, the payment of economic compensation to workers in the employer's working life, every year to economic compensation equivalent to one month's salary, the working time is less than a year by year the standard to the economic compensation.

　　33The employer, the need for this city registered permanent residence, the parties hereby agreed service term and penalty, the employing units to both sides agreed basis requires the employee to pay liquidated damages, and should not be supported. For the employee violates the principle of good faith, thus causing losses to the employing unit, the employee shall indemnify.

 

Seven, about the insurance problems

　　34The third person tort, due to injury, if the employer fails to pay for the workers industrial injury insurance premium, the employing units should be in accordance with the "Regulations" provisions on work-related injury insurance to workers (or immediate relatives) to pay industrial injury insurance treatment. Infringement of third people has been fully paid workers (or immediate relatives) medical fees, transportation fees, equipment costs of disability and other required by related bills to the cost of a compensation, employers do not have to repeat the payment.

　　35Due to the employer, not for migrant workers pay endowment insurance, migrant workers to terminate the labor contract with the employer terminates the or, to require the employer to pay compensation for the losses, it shall terminate labor contract or proposed within one year as of the date of termination, determining the amount of compensation may refer to "contract system farmer workers participating in the Interim Measures for the pension Beijing City, the unemployment insurance" (Beijing labor insurance[1999]99Number) and "Beijing city migrant workers endowment insurance Interim Measures" (Jing Lao She hair[2001]125No.) regulations.

 

The other eight, a substantial

　　36, the employing units to make in the implementation of "labor contract law" before the rules, though not through the "labor contract law" fourth paragraph second of the democratic process, but the content is not in violation of laws, administrative regulations and policies and regulations, and has public to workers or inform the employing units, can be used as the basis for the management of labor.

　　37Stipulated by the employer and the employee, the competition restriction provisions in the labor contract or confidentiality agreement, the employer as in that since workers do not have to carry out the competition restriction provisions, shall clearly inform the workers. The employer told the workers have agreed obligations, and therefore require employers to pay during the performance period of economic compensation, it shall be supported.

　　38Stipulated by the employer and the employee, the competition restriction provisions in the labor contract or confidentiality agreement, but not on the compensation payments or specific payment standards agreed by the parties, shall not accordingly finds the competition restriction provisions invalid, both during the existence of the labor relations in the lift, or termination of labor contract, can be remedied through consultation, no agreement can be reached through negotiation, in accordance with the final one before the termination of labor relations both annual wages to labourers20%- 60%To determine the compensation amount. The employer clearly indicated that he did not pay compensation fees, restrictions are not binding on the competition.

Workers and employers have not agreed on the term of the competition restriction, must be confirmed by both parties, no agreement can be reached through negotiation, limitation period shall not exceed two years.

　　39The establishment of the preparatory stage, the working time in the employer does not generally calculated as the units of work experience, but the two sides have agreed otherwise.

　　40Due to the employer, the delay fault file transfer, the workers require the employer to pay compensation for the losses, labor arbitration committee or the people's court in determining the amount of compensation, according to "Regulations" provisions of Beijing unemployment insurance and related policy documents; archives workers because of the loss to the employer to claim compensation for losses, labor arbitration committee or the people's court may determine the amount of compensation according to the degree of the fault of the parties and the damaged as appropriate, generally not more than sixty thousand yuan.

 

Nine, the meeting minutes from the date of issue, the city people's court at all levels, the labor dispute arbitration committee reference implementation.

 

 

The higher people's Court of Beijing

Notice on the issuance of "social insurance issues involving labor dispute in the case of the seminar on"

 

First, the second intermediate people's court civil court;

District, county people's court civil court:

To properly solve the social insurance issues involving labor dispute cases in a court, the higher people's Court of Beijing people and the Beijing city human resources and Social Security Bureau in2009Years7Month31Japan joint conference related questions of social insurance, the participants to solve part of the problem of consensus, and formed the meeting minutes. The "social insurance issues involving labor dispute in the case of the seminar on" issued to you, for the reference of the trial practice. In addition, the negotiation of a court, high court and relevant departments and the municipal human resources and Social Security Bureau, the Bureau commissioned the relevant departments developed computer software for calculation of gold migrant workers endowment insurance losses for the judge in the case, the use of.

A court in Beijing high people's Court of the people

Two hundred nine years in November 2nd

 

The social insurance issues involving labor dispute cases seminar summary

 

To properly solve the social insurance issues involving labor dispute cases in a court, the higher people's Court of Beijing people and the Beijing city human resources and Social Security Bureau in2009Years7Month31Japan joint conference related questions of social insurance. Beijing City three levels of courts in the trial of labor dispute and judge, Beijing city human resources and Social Security Bureau of the relevant leaders and relevant departments responsible persons attended the seminar. The participants on the social insurance issues involving labor dispute cases are discussed, to solve part of the problem agree, the summary is as follows:

 

　　One, about the employer fails to pay old-age insurance premiums for migrant workers problems

　　1According to the regulations, the employer fails to pay the cost of endowment insurance of migrant workers, migrant workers should be paid, in general not be accepted.

The employer fails to pay for migrant workers endowment insurance, compensation for the loss of the employer requires the migrant workers and employers in the termination or dissolution of the labor contract, it shall be accepted.

　　2, because employers are not required to pay old-age insurance premiums for migrant workers, migrant workers to terminate the labor contract with the employer terminates the or, to require the employer to pay compensation for the losses, it shall terminate labor contract or proposed within one year as of the date of termination. To determine the amount of compensation may refer to "contract system farmer workers participating in the Interim Measures for the pension, unemployment insurance in Beijing city" (Beijing labor insurance[1999]99Number) and "Beijing city migrant workers endowment insurance Interim Measures" (Jing Lao She hair[2001]125No.) regulations.

3, for labor arbitration department and the court heard the case in a more timely and accurately calculate the amount of compensation, the city of human resources and Social Security Bureau staff pension insurance, social insurance fund management center jointly developed the calculation of compensation calculating machine software migrant workers endowment insurance losses, arbitrator and judge for reference in case.

 

　　Two, about the employer fails to pay for the workers medical insurance premiums, causing workers can not enjoy treatment of medical treatment insurance, labor demand that the employer compensation related to treatment of medical treatment insurance loss problem

　　1, because employers are not required to pay for the workers medical insurance, labor demand that the employer compensation related to treatment of medical treatment insurance losses, labor arbitration department to accept, should require workers to submit the relevant medical documents, and commissioned by the district medical insurance agencies assist accounting should assume the employer's medical expenses amount. Labor arbitration and the courts in dealing with relevant cases, can refer to

　　2After the arbitration, not directly to the court to prosecute the loss of medical treatment dispute cases, the court after accepting, should require workers to submit the relevant medical documents, and can be directly or through the labor arbitration departments entrusted to the district medical insurance agencies assist accounting shall be borne by the employer's medical expenses amount.