A, arbitration and litigation and accept

1, parties to the labor dispute arbitration committee for arbitration after withdrawal, to the court, how to deal with?

When a party applies for arbitration after the withdrawal request, the court can not be regarded as has been pre arbitration procedure, can be ruled inadmissible, has accepted the court rejected prosecution, and tell it to the labor dispute arbitration committee for arbitration.

For the parties in the withdrawal, again to the labor dispute arbitration committee for arbitration, labor dispute arbitration committee to make the award or inadmissible notice, the court can hear.

2After the application for arbitration, the parties, refuses to appear in court or arbitral tribunal agreed to drop back to back, labor dispute arbitration committee in accordance with the withdrawal of the arbitration application, the prosecution to the court, how to deal with?

The court can not be accepted, and told it to labor dispute arbitration committee for arbitration, labor dispute arbitration committee to make the award or inadmissible notice, the court can hear.

4, the labor dispute arbitration proceedings, witnesses and questioned, witness appearing in court is still needed?

The witness can not appear in court, but there is still a fact or the parties except needs inquiry and reduction to absurdity.

5, labor dispute arbitration procedure the parties have accepted related facts of the case, in the proceedings the parties also denied, how to deal with?

In the proceedings, except with the consent of the other party, or there is sufficient evidence that is inconsistent with the facts, not to support the client denied the accepted fact in arbitration claim.

6The parties have to sign, labor dispute arbitration committee for labor dispute mediation, afterwards back to the court, how to deal with?

The court should be ruled inadmissible; accepted, should reject, but ruled that the book should explain the mediation has been in force, both sides according to the original mediation execution.

7Labor dispute arbitration in accordance with the law, the applicant proposed a request for arbitration, arbitration award omission not treated, the party sued to the court on how to handle?

The court shall hear, shall not handle with the corresponding request not by the arbitration.

8Due to the labor dispatch agreement, "based on the" dispute between the employing units and the dispatch unit, the Arbitration Commission, whether the court as the labor dispute cases?

Based on labor relations disputes between employers and workers in labor disputes, labor dispatch unit and the labor service unit "based on" the labor dispatch agreement disputes arising under the labor contract other than the type of contract disputes, not as a labor dispute cases.

9The worker requires account, transfer, return the account page, termination by the employer and the talent center account custody contract disputes as to whether the labor dispute cases?

The workers demand transfer account, return the account page, termination by the employer and the talent center account custody contract disputes, not as a labor dispute cases.

10The employer assign workers, has long been engaged in business in Beijing City, workers in some districts and counties of Beijing residence as a labor contract to the arbitration commission or the Arbitration Commission, the court, how to deal with?

The laborers from the designated employer and long-term in the city of Beijing in the business, they have a fixed office locations in Beijing, can be seen the office location for the performance of the labor contract, such as due to business reasons not fixed office place, can be seen in the Beijing residence for the labor contract. The employee shall provide the employer assigns the evidence has long been engaged in business in Beijing to the Arbitration Commission, the court, as well as evidence in Beijing has no fixed office place and living place.

12The Arbitration Commission, the court, to the employer bankruptcy cases of labor disputes, labor sued for employers to fulfill their obligations, how to deal with?

The Arbitration Commission, the court shall inform the workers to change his claim as the confirmation of creditor's rights, the award or judgment as the confirmation of the amount included in the bankruptcy claims, the liquidation shall be clean, not stated time, fulfill the. (for example: the confirmation of a bankruptcy administrator shall enjoy a laborerXXYuan wages into bankruptcy, the bankruptcy liquidation procedure shall be clean).

Determination of two, labor relations and the main responsibility

13In accordance with the law, enjoy the old-age insurance benefits of workers, pensioners, who reached the statutory retirement age of workers, with the original employing unit or employer between the establishment of labor relations, how to deal with?

To enjoy the old-age insurance benefits of workers, pensioners, who reached the statutory retirement age of the staff, the original employing unit or employer between labor relations, deal with the relationship between the employment. (the answer in the employment relationship with "the Supreme People's Court on the trial of personal injury compensation case applicable legal interpretation" article ninth, the provisions of article eleventh of the employment relationship, "the Supreme People's Court on the trial of labor dispute case applicable legal interpretation (three) the concept of" the provisions of article seventh of labor relations the same)

14, did not reach the statutory retirement age of early retirement staff, lwop personnel, laid-off workers laid off workers, enterprise production holiday staff to establish labor relations before retiring with the new employer, how to deal with?

Did not reach the statutory retirement age, retirement personnel lwop personnel, laid-off workers laid off workers, enterprise production holiday staff to establish labor relations before retiring with the new employer, it shall be treated according to the labor relationship, but for the new employer because of objective reasons can not be for the payment of pension, medical, unemployment insurance, the workers justify the proposed termination of labor contract and economic compensation, not support.

15, did not reach the statutory retirement age of early retirement staff, lwop personnel, laid-off workers laid off workers, enterprise production holiday staff to establish labor relations before retiring with the new employer, the how to identify the relationship with the original employing unit?

Did not reach the statutory retirement age, retirement personnel lwop personnel, laid-off workers laid off workers, enterprise production holiday staff to establish labor relations before retiring with the new employer, under normal circumstances can maintain the original employing unit and keep the labor relationship, relevant treatment according to the agreement between the two sides. There is no agreement or the agreement is not clear, consider the basic protection of the interests of workers and comprehensive judgement with the reality unit.

16Workers to apply for business license, no business license is revoked, or term of business circles with continued to run the employing units to provide labor, how to deal with?

Workers to apply for business license, no business license is revoked or the term of business circles with continued to run the employing units to provide labor, although the employer does not have the qualification of employment, but the workers shall have the right in accordance with the "labor contract law" to the employer the main rights, the employer does not exist or unable to bear the responsibility, the investor shall bear the corresponding liability according to law.

17Automatic shutdown, the employer, as automatic termination, revocation or revoke the business license, how to determine the party?

The employing unit automatically closed, as automatic termination, cancellation or revocation of the business license shall be listed in the employer for the party. If unit of choose and employ persons to form a liquidation group of creditor's rights and liabilities, head of the liquidation group shall participate in litigation for the company; where no liquidation group has been established, the original legal representative shall participate in litigation of company. The liquidation group responsible person or legal representative may entrust an agent to participate in the litigation procedure.

22, workers and employers to sign labor contract, the employing units to be sent to other units of work, how to deal with the dispute?

Although laborers in the unit was dispatched to work, should be identified with the signing of labor contracts the employer of labor relations. According to the actual situation of cases, additional unit of choose and employ persons to participate in the proceedings. The decision by only sign labor contracts with the employer to bear the liability, may damage the cases of practical interest, the actual decision by the employing unit shall bear joint and several liability.

23Death of employees, relatives can be used as the plaintiff requested that the labor relationship?

Workers who died relatives can exist between labor relations as the plaintiff's request that the workers and employers, the workers killed relatives including the spouses, parents, children, brothers and sisters, grandparents, grandparents, grandchildren, Sun Zinv and other support, support relatives, for any one of the workers killed relatives can be used as the plaintiff. Involving the death of employees compensation and enjoy the treatment should be advocated, all the relatives as parties to participate in the proceedings.

26Whether the labor relationship between, belongs to the bankruptcy liquidation group and staff?

The bankruptcy liquidation group as a court appointed administrator, does not conform to the provisions of labor laws and regulations of the organization, not as the labor body and its staff to establish labor relation, the employment relationship is.

27Labor relations, whether belong to between the agent and insurance company?

General insurance agent for insurance companies in its authorized to transact insurance business on behalf of, and to the insurance companies charge a fee, insurance companies to pay a commission according to the volume of business insurance agents, insurance company does not assume insurance agent of social insurance and social welfare responsibility, civil agency relationship between the two sides is the principal of equality, not a labor relationship.

28A number of Associate Company, cross rotation of workers, according to the existing evidence is difficult to ascertain the actual working conditions of the workers, how to deal with?

Many Associate Company cross rotation of workers, the following principles: (when considering treatment1According to the needs of the trial) the Associate Company as a litigant, with many Associate Company payment of wages, payment of social insurance, work place, work content, labor relations as factors (judgment2The above factors) in cross is hard to judge, facts can be combined with the statement of the labor relations workers (3Many Associate Company) consider cross rotation of workers, work content overlap circumstances, can according to the main obligation of workers that choose a company to undertake the labor relationship, the payment litigation request, can let the companies shall bear joint and several liability.

 

Three, the labor contract

29After the expiration of the contract is not renewed, labor, workers continue to work with the original employing unit, put forward by the employer to terminate the labor relationship and how to deal with?

The workers agreed to terminate the labor relationship, as both sides agreed to terminate the labor relationship, the employing units in accordance with the "labor contract law" article forty-sixth (two) items to pay financial compensation to the worker, the worker to the employer advocated by the "labor contract law" article eighty-second "two times to pay wages", should be supported.

The employee does not agree to terminate the labor relationship, and no legal termination of labor relations reasons, termination of employment relationship is not supported for the employer.

The employer and the worker no consensus and illegal termination of labor relations, workers in accordance with the "labor contract law" provisions of article eighty-seventh, two times the standard economic compensation provisions for employing units in accordance with Article forty-seventh of the payment of compensation, it shall be supported.

30, "labor contract law" article eighty-second "two times salary" cognizance and the starting and ending time, calculation method?

(1) on the basis of "labor contract law" article tenth, eighty-second paragraph, with employee employer has more than one month but less than one year and not conclude a written labor contract, the employee, the full month starts with the two times salary, the cut-off point for the day before the two sides to conclude a written labor contract, no longer than eleven months.

(2) if the labor after the expiration of the contract, laborer still worked for the employer, the employer fails to renew the labor contract in written form with the workers, as the starting point for the labor contract expires, the cut-off point for both sides to the day before the written labor contract.

(3Violation of the employer) "labor contract law" fourteenth article second paragraph, eighty-second paragraph second, and workers do not enter into a non fixed term labor contract, "two times salary" start stop times shall conclude a non fixed term labor contract date, the parties on the day before the actual signing of non fixed term labor contract the.

(4) the employer due to violation of the "labor contract law" article fourteenth paragraph third, eighty-second paragraph second, occupied the date for a full year and workers do not enter into a written contract, as the employer and the employee has a non fixed term labor contract, the labor party may apply to the Arbitration Commission, the court held that between the employer and to confirm a labor contract without a fixed term. In this case, the workers also argue that employers pay "two times salary" does not support.

(5") two times salary" is part of the normal working hours of labourers remuneration, the provisions of the fourth paragraph of article twenty-seven the application of "mediation arbitration law"; a times the salary increase is the punitive compensation part, does not belong to labor remuneration, article twenty-seven the application of "mediation arbitration law" the provisions of the first paragraph, namely a year of arbitration aging.

Calculation methods of "two times the wage" for aging: workers in advocating "two times salary", because did not sign labor contract behavior in continuous state, therefore, aging from the right. The date forward calculation for a year, according to the actual payment of the "two times the wage" of no more than twelve months, "two times the wage" to a monthly calculation is appropriate.

31Both parties fill, sign labor contract, labor advocate "two times salary", should support?

The term "retroactive labor contracts, refers to the establishment of labor relationship between the unit and the laborer, not a month to employee days to conclude a written labor contract in a certain period, the existence of the labor relations, in the labor contract to date in the date of employment. So as to reach an agreement by the employer and the worker, worker advocates "two times the wage" may not support, but there is evidence that workers except retroactive labor contracts dated is not the real meaning of.

32There, the employee is sick or non work related injury within the medical treatment period, female workers during pregnancy, childbirth, lactation period, "labor contract law" forty-second article of the cases, the expiration date of the labor contract, the employer fails to renew the labor contract with the worker, is identified as without concluding a labor contract and pay "two times the wage"?

The expiration date of the labor contract, the labor contract law "with" the forty-second article of the cases, the labor contract shall be continued until the relevant circumstance termination disappears, the continued during the unit and the laborer does not conclude a written labor contract, it should not pay "two times salary".

33, the legal representative of the employing entity, executive or personnel management department is responsible for people not with the employer to conclude a written labor contract based on the "labor contract law" eighty-second stipulation to the unit for "two times salary", should support?

The legal representative of the employing entity according to the "labor contract law" eighty-second stipulation to the unit for "two times salary", are generally not supported.

The employer executive personnel according to the "labor contract law" eighty-second stipulation to the unit for "two times salary", can be supported, but the employer can prove that the executive responsibilities include management of labor contract content except. There is evidence to support the executives to require the employer to sign labor contract and rejected, can support managers to "two times the wage" request.

The employer's personnel management department according to the "labor contract law" eighty-second stipulation to the unit for "two times salary", such as the employer can prove that the labor contract belongs to the personnel management department responsible for the work duties, may not support. There is evidence that the personnel management department is responsible for the labor contract to the employer, and the employer refused except.

34The unit and the laborer, the labor contract expires continued, workers in the labor contract that did not sign labor contract "two times salary" whether to support?

Because of the unit and the laborer in the labor contract has been agreed in the labor contract expires continued, in the labor contract, laborer still continue to work, both sides are not rescind or terminate the labor contract, belong to the same meaning that a renewal of the labor contract, can be regarded as both conclude a labor contract with the original contract with the same, the workers that did not sign labor contract "two times salary" should not support.

35Where the laborer requests the Arbitration Commission, the award or court judgment and employers to sign a written labor contract, how to deal with?

To conclude a written labor contract requires the parties agree, by the employer and employee consultation on an equal footing, to determine the term of the contract, work content, labor compensation and other matters. Therefore, the arbitration commission or court decision directly ordered the parties to conclude a written labor contract in violation of the principle of party autonomy, is also unable to determine the specific content and application for compulsory execution. The workers and the employer to conclude a written labor contract, the Arbitration Commission, the court may change the interpretation the parties litigation request, that confirm the existence of certain types of labor contract relationship.

For reasons attributable to the employer caused fails to conclude a written labor contract, laborer can be according to claim the employer liable fails to conclude a written labor contract labor.

36The unit and the laborer, the labor contract expires continued, then workers to continuous conclusion of two fixed term labor contract requirements to confirm the presence of a labor contract without a fixed term support?

Stipulated by the employer and the worker labor contract extension, and the renewal of the labor contract, laborer is required to confirm the presence of a labor contract without a fixed term to continuous conclusion of two fixed term labor contract, it shall be supported.

37The employer, to avoid the signing of non fixed term labor contract situation, how to deal with?

The employer has the following actions to avoid the "labor contract law" provisions of article fourteenth, working life and times to sign a fixed term labor contract shall be calculated continuously:

(a) in order to reduce the computational labor service, forcing the resignation of workers to sign labor contract;

(two) through the establishment of related enterprises, alternate employer names when signing labor contracts with employees;

(three) only on the termination of labor contract term for change, the employer can not make a reasonable explanation;

(four) to the cancellation of the original units, the establishment of the new unit, will the worker to recruit new units, and the units operation and working place, working content showed no substantial change;

(five) the other in clear violation of the principle of honesty and fairness of avoidance behavior.

Four, the performance of the labor contract, rescission, termination

38According to the Ministry of labour, the workers (1994)481No. "breach and termination of labor contract and economic compensation" article third, article fourth of the25%The economic compensation provisions should pay economic compensation, how to deal with?

Workers can choose according to the provisions of "breach and termination of labor contract and economic compensation" third, fourth claims25%Economic compensation, also can choose according to the "labor contract law" article eighty-fifth claims and pay for the damages.

Workers should pay compensation in accordance with the law, shall be approved by the administrative department of labor process. Workers should provide the labor administrative department shall order to the Arbitration Commission, the court the employer to pay the labor remuneration, overtime, economic compensation or below the minimum wage standard difference deadline for rectification of the evidence, and the employing unit fails to fulfill the obligations of evidence.

39The workers in the labor contract law, "" the provisions of article thirty-eighth outside of the case for resignation, in arbitration or litigation stage and that is the employer of the legal situation forced his resignation, ask the employer to pay economic compensation or damages and how to deal with?

For the workers to resign, should take the workers at that time the actual reasons for resignation as the basis that the facts of the case, the workers to "labor contract law" provisions of article thirty-eighth outside of the case for resignation, in arbitration or litigation stage and that is the employer of the law cases forcing him to resign, requesting the employer to pay economic compensation or indemnity, the Arbitration Commission, the court will not support, but workers demonstrated in resignation, fraud, coercion, except major misunderstanding, contrary to the true meaning of that case.

40, the employing units to workers in violation of rules and regulations on the grounds and the Employee terminates the labor contract, such as the legitimacy of the workers on the rules and regulations of the objection, the Arbitration Commission, the court to review?

The Arbitration Commission, the court shall review the employer's rules and regulations formulation procedure is legitimate, whether the content in violation of laws, administrative regulations and policies and regulations, whether public or inform the workers.

The employing units in the implementation of "labor contract law" prior to the enactment of the regulations, the rules and regulations of the content does not violate laws, administrative regulations, there is no obviously unreasonable, and has announced to the workers, can be used as a basis for handling labor dispute.

41Not according to stipulations, workers thirty days in advance (during the probation period for three days in advance) notify the employer terminates the labor contract is left on their own, or even to fulfill the obligation of notification, but fails to perform the relevant obligations, thus causing losses to the employing unit, whether or not compensation?

Workers without a prior notice of thirty days (during the probation period for three days in advance) notify the employer terminates the labor contract, left on their own, or even to fulfill the obligation of notification, but fails to perform the relevant obligations, it shall perform the obligation for the handover of the work, causing direct economic losses to the employing unit, it shall bear the corresponding compensation liability, the economic loss caused, the employer shall bear the burden of proof.

42, dissolution or termination of the labor contract, the employing unit refuses to issue to the worker the termination or rescission of the labor relationship certificate or not within the period prescribed by law for the workers to go through the formalities for transferring files and social insurance, employment causing workers cannot request the employer, workers compensation, how to deal with?

Workers can prove that due to the employer's fault caused the unemployment and the actual economic loss, shall support. Labourers shall have the burden of proof is a direct causal relationship and the specific amount of the economic loss caused by the fault of the employer and cannot obtain employment, can not prove that there is a direct causal relationship between does not support, as indeed caused economic losses, but can not determine the specific amount of economic losses, according to the annual average social wage determination, and a clear payment period of time.

43, fixed term labor contract, the labor contract changes to a unit and a laborer, whether as belonging to signed two contracts?

A unit and a laborer consistent change fixed term contract performance period, such as after the change over a period of the original contract, as a unit and a laborer conclude a labor contract with a fixed term of two times, such as after the change of short duration in the original contract, only to the original contract as the change of time limit.

47Female staff and workers, to terminate the labor contract with the employer negotiation in unknown circumstances after his pregnant, with a major misunderstanding by withdrawing the termination of the agreement or continue to perform the original contract, how to deal with?

Female worker and the employer terminates the labor contract after negotiation, finds herself pregnant and then to major misunderstanding for requesting revocation protocol or continue to perform the original contract, shall not support.

48Female staff and workers, in violation of "the people's Republic of China on population and family planning law" (hereinafter referred to as the "population and family planning law") birth, the employer can terminate the labor contract?

Female worker is in violation of "population and family planning law" fertility and conform to the following circumstances, the employer may terminate the labor contract, and there is no need to pay economic compensation.

Stipulated by the employer and the employee violates the program violates the "population and family planning law" fertility may terminate the labor contract in the labor contract; the employer in accordance with the rules, prohibiting workers in violation of "population and family planning law" growth; the local government departments for workers in violation of "population and family planning law" fertility, penalties for employers.

49, if the employee breaches the competition restriction agreement, the employer is required to pay the penalty for breach of contract workers, and workers compensation for losses, how to deal with?

The employer requires workers bear the penalty, and the compensation for losses, to be proof of workers bear the penalty is not enough to make up for the actual loss. The Arbitration Commission, the court may choose a more reasonable litigation request support, set aside another lawsuit request, can also support the liquidated damages for loss of support difference.

The unit for workers compensation for losses, except that both sides have the agreement of prohibition of business strife, employee breaches the competition restriction provisions behavior, also have the onus will cause the actual loss.

    Five, the social insurance

50, agreed by the employer and employee wages, including the employer's burden of pension, medical, unemployment and other social insurance premiums, and not to the social insurance agency to pay social insurance fees, the effect how?

The employer has to declare and pay the legal responsibility of social insurance premiums in full and on time, the payment of social insurance premiums shall be paid by the employee employer withholding. With the social insurance fee includes the unit and the laborer shall pay, and not to the social insurance agency to pay social insurance fees act is invalid.

The workers do not claim of social insurance compensation for losses, damages can be deducted from the employer has agreed to pay social insurance premiums of workers.

51The people's Republic of China, "social insurance law" in 2011Years7Month1DayShall, before the law was implemented, the employer fails to pay the endowment insurance of migrant workers, the social insurance agencies actually cannot handle back procedures, the Arbitration Commission, the court may order the employer to migrant workers unpaid money way of compensation for loss of endowment insurance. The implementation of the present "the people's Republic of China social insurance law" has been allowed to pay old-age insurance for migrant workers, the employer payment of migrant workers2011Years7Month1DayAfter the endowment insurance compensation litigation request would be supported?

The Arbitration Commission, the court on the employer fails to pay the endowment insurance of migrant workers, can be sentenced to2011Years6Month30Day, for2011Years7Month1Principle of migrant workers endowment insurance later on by the social insurance agency and the labor administrative departments in accordance with the law, the Arbitration Commission, the court no longer payment of money damages judgment.

52, the employing units to pay money to the employee for payment of social insurance, the employer can require workers to return the paid money in payment of social insurance?

If the employer payment of social insurance after the workers in social insurance is no loss, the employer may require workers to return to replace the payment of social insurance and payment of money.

53For the workers, employers can substitute for commercial insurance and social insurance?

Nature of commercial insurance and social insurance for workers of different, pay social insurance is the legal obligation to unit. The employer for the commercial insurance for workers, and can not be exempt from the obligation to pay the social insurance for workers.

54To the employee, the employer fails to pay social insurance premiums, workers through other channels to pay insurance premiums, required to pay costs employers according to whether support?

Workers through other channels to pay insurance premiums include workers to pay and pay two forms in other employers, the true state of these two kinds of forms are inconsistent and labor relations, also in violation of provisions of the social insurance law, influence on social insurance registration, approval, pay, pay the normal order caused, therefore the Arbitration Commission, the court shall not support.