The higher people's Court of Beijing, Beijing City, the labor dispute arbitration commission on issuing "in Beijing CitySeniorThe people's court, the Beijing labor dispute arbitration committee for laborStudy for the problem of legal dispute casesNotice of meeting minutes

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 problem of handling the case questions in labor disputes, and promote the unification of law enforcement office, a court in Beijing high 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, urgent to resolve labor disputes in the case of the procedural and substantive aspects of the problem are discussed, to solve some problems have differences of opinion, and constitute 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
                                                           TwoHundredIn August 17th nine

The scope of acceptance, the problem of a labor dispute case

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) the employer fails to establish the social insurance for workers, payment of social insurance premiums 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) the employer fails to pay social insurance premiums for the employee, lead workers can not enjoy inductrial injury, unemployment, maternity, medical insurance, workers require the employing units in accordance with the relevant provisions of the payment of such treatment, should be accepted.

(3) the employer fails to pay the cost of endowment insurance of migrant workers, 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 the employer delay conversion or the file is missing, require the employer to pay compensation for the losses of the dispute of workers, should belong to the scope of labor dispute cases.

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

4, according to the "Regulations of 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, namely recourse labor remuneration, work-related injury medical expenses, economic compensation or damages, no more than the local minimum wage standard twelve months amount of dispute; two is the standard a clear case of, that is for implementing the national labor standards in working hours, rest and vacations, social insurance 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.

5, labor is the final award at the basic people's court, and the employing units in accordance with "Regulations of labor dispute mediation and Arbitration Law" 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, the employer shall be handled as defense. 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.

6, according to the actual needs of the trial to withdraw the case of arbitration award, 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

7, in 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.

8, according to the "Regulations on the trial of the law applicable to a number of Labor Dispute Cases 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" refers to the claim and arbitration matters increase is based on the same facts and produce, with dependence between.

9, both parties accept the same arbitration of labor dispute arbitration committee, 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" (contract) definition, should be consistent provisions of the general principles of the civil law "and" 155th.

11, according to the second paragraph of 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

12, in the identification between the employer and the employee have labor relations, can consider the following factors: (1) the employing unit and the laborer in accordance with the law, regulations of the subject qualification; (2) the rules and regulations formulated by the employing units in accordance with the law applicable to the workers, workers with labor management unit, in the arrangement the employer paid labor; (3) of their labor is a part of unit of choose and employ persons.

13, for their own skills, knowledge or facilities for labor or services provided by the employer, 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 identified and the relationship between the employer does not belong to the labor relations.

14, long-term labor fails to provide labor, unit of choose and employ persons not to terminate the labor relationship, the "long two not found", can be found in the state of labor relations between the two sides to suspend performance, suspend its performance during the employing unit and the laborer does not exist labor law on the relationship between rights and obligations, also do not calculate for this unit.. So after a party to terminate the labor relationship, the other party for not agreeing to lift and apply for arbitration, labor arbitration committee or the people's court after examination such as that the lift in conformity with the relevant provisions of law, shall confirm rescission.

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

16, the resident representative offices of foreign enterprises not through foreign employment service unit directly recruit Chinese employees, should be recognized on labor relations, employment relationship.

Five, about the problems related to labour remuneration of

17, the employing units shall, in accordance with 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".

18, the wage settlement and payment period expires, the employer shall pay wages in the labor agreement with the date, but not later than the wage settlement and payment cycle after the expiry of seven days. Such as salary payment day holiday or rest day, shall pay the latest working day in advance.

19, to determine the overtime wage 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, should be supported.

20, by the employing unit and the laborer shall confirm the 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.

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

22, the following circumstances, the employer shall pay the worker requires overtime pay, do not support: (1) the employer because of safety, fire protection, holidays and other needs, arrange the workers engaged in the job has nothing to do with duty; (2) the employer arranges laborer to work in and on duty, but duty during the rest of the.

In these cases, workers can be in accordance with the requirements of regulations, labor contract, collective contract or practices and other employers to 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. Except the normal working hours at wages below the local minimum wage standard.

Decision 24, the employer to terminate the labor contract with the laborer, labor arbitration committee or the people's court revoked in accordance with the law, such as the workers that employers pay the treatment decision to arbitration or litigation period wages, should according to the following principles: (1) hold the decision made by the employer only because of flawed procedure is revoked according to law, the employer shall pay the minimum wage this period of wages to the laborers; (2) treatment of the employing units to make decisions because of problems in the aspect of entity and shall cancel, employers should be the normal labor wages paid by the during the salary to laborer.

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, in 2007 December 31 of economic compensation in accordance with the "labor law" recently and its supporting regulations calculation, after 1 January 2008 the 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.

"Labor contract law" calculation method stipulated in article eighty-seventh damages: in accordance with the above provisions calculated economic compensation as the basis, and then multiplied by 2 to calculate the compensation. Compensation calculation period from the date of employment.

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.

26, in the labor arbitration or litigation procedure, the 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.

27, because the breach and termination of labor contract economic compensation for the original labor department formulated "" (labor department No. [1994]481) has not been revised or abolished, so workers due recourse labor remuneration to require the employer to pay economic compensation 25%, or as a result of requests to terminate the labor contract with additional economic compensation 50% units, labor arbitration committee or the people's court may reference to the implementation of the above provisions.

28, the labor contract expires, laborer still worked for the employer, the employer for more than a month and not conclude a written labor contract shall, in accordance with the "labor contract law" article eighty-second, pay double salary to laborer. Pay double to the corresponding month wages should prevail.

29, unit of choose and employ persons without advance notice of thirty days 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 gold, shall support.

30, the unit and the laborer on the economic compensation payment standard to reach an agreement, such as the agreed payment standard is less than the statutory standard, workers receive, and claim in the limitation of arbitration, require the employer to make up the difference, should be supported. But if the employer in the agreement have been explicitly inform the provisions of relevant laws or policies of the labor standard, explicitly waives the right of workers, the idea should not 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 pay economic compensation from January 1, 2008 onwards calculation period. 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.

32, by the employer to the employee for hire for this city registered permanent residence, the parties hereby agreed serviceAs far as possible and damages for breach of contract, the contract in violation of the "labor contract law" article twenty-fifthFixed, so the employer agreed basis requires the employee to pay liquidated damages, notShould be supported. As for the workers in violation of the principle of good faith, caused to the employerThe employee shall be liable for the loss.　　　　

Seven, about the insurance problems

33, because third person tort and occurrence of 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. If the 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.

34, the unit and the laborer on the treatment of inductrial injury insurance agreement, both sides agreed to pay the standard is less than the statutory standard, and has been performed, such as workers in the limitation of arbitration is to require the employer to make up the difference by the statutory standards, labor arbitration committee or the people's court shall support.

35, the court of first instance in the trial of treatment of inductrial injury insurance disputes, upon examination and verification are found to the administrative department of labor of work-related injuries that conclusion is wrong, should inform the parties may modify the claim, the parties did not change the claim, the court of first instance shall rule to reject the plaintiff's prosecution.

36, because the employer fails to pay the cost of endowment insurance of migrant workers, migrant workers in the termination of the employment relationship with the employer, require the employer to pay for the damage, shall be made within one year from the date of termination of labor relations, determining the amount of compensation may refer to "contract system farmer workers participating in the Interim Measures for the pension, unemployment insurance Beijing city" (Beijing labor insurance hair (1999) No. 99) and "Beijing city migrant workers endowment insurance Interim Measures" (Jing Lao She hair No. [2001]125) regulations, the employer should migrant workers endowment insurance amount as compensation for migrant workers endowment insurance losses, the specific calculation method is:

During the period from June 1, 1999 to December 31, 2002, calculated according to the ratio of 19% the employer shall pay the amount; after January 1, 2003, calculated according to the ratio of 20% the employer shall pay the amount. Capture expends wage base for the corresponding year minimum wage standard.

Example: a migrant workers endowment insurance loss calculation in 2002 May to 2005 July: 435 x 8 months * 19%+ (435 × 3 month +465 yuan +465 × 12 months × 12 month +545 yuan x 4 months) × 20%=3590 yuan

The other eight, a substantial

37, the employing units 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, as with employment management unit on the basis of.

38, the unit and the laborer in the labor contract or confidentiality agreement the competition restriction provisions, unit of choose and employ persons 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, which required employers to pay economic compensation to the performance period, it shall be supported.

39, the unit and the laborer in the labor contract or confidentiality agreement the competition restriction provisions, but not on the compensation payments or specific payment standards agreed by the parties, shall not accordingly finds the competition restriction provisions invalid, the two sides can be remedied through negotiations, no agreement can be reached through negotiation, in accordance with the last termination both parties to the labor wages of workers 20% - 60% of the annual payment of compensation. 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.

40, the establishment of the work of the preparatory stage at the time of the employer not calculating the units of work experience, but the two sides have agreed otherwise.

41, because the employer's fault and the file transfer delay, 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.