Labor dispute arbitration

    ApplicantJunjie (a pseudonym), male, 19*7 years on 1 May, han,* * *CityRural creditCooperative AssociationEmployees, live* * * CityTang* *Bo credit cooperatives, zip code26**18, call 5321***.

    The respondent* * *Rural credit cooperatives,Address* * *Yuejin Road 4*No. 7,Legal representativeXu Jieyun (a pseudonym),Phone 0*35-52* * *07, zip code26**00.

    Requests:

1, request the ruling is the text of the labor contract originals of the return of the applicant and the job has a monthly salary list;

2,Request for payment of the illegally stipulated and has performedIt's been 7 monthsThe probation period for compensation18200 yuan (2600*7.

    3,RequestPaymentThe probation period less hairWage of 3480 yuan (580*6.And shall pay compensationGold1740Yuan (3480*50%);

    4,RequestPaymentRest dayWork overtimeCosts 15946.67 yuan and shall pay compensationGold7973.36Yuan (15946.67*50%);

5,RequestPaymentFor refusing to pay the social insurance premiums and other illegal acts to the applicant's resignationCompensationGold5200 yuan(2600*2.

6,Request for the 2012 January -3 months the deduction of wages 6000 yuan and shall pay damages of 3000 yuan (6000*50%).    (more than 5 total 61540.03 yuan)

    The facts and reasons:

One, the applicant and the respondent and the resignation of labor contract

1,The applicant to the applicant in July 7, 2010AtReportWork, and signAIn July 7, 2010 -2015 year in July 7thThe labor contract,The text of the labor contract shall be returned to the applicant was seized, have so far refused to return. The respondent shall selfIn 2010 July -2010 year in December for "Probation", according to its superior departments on probation for six months to one year, forcing the applicant in 2011 January -2011 year in July for "Probation", "two" have already been fulfilled, probation, probation salary is 1500 yuan, with aBank transaction recordsAs. The labor contract agreed to pay 2600 yuan. The same position with the applicant two colleagues, the wage is 2600 yuan, the two colleagues bank transaction records according to the wage. Since January 2012, the implementation of performance assessment methods, the monthly deduction of 2000 yuan for the performance appraisal retained, the actual monthly only 590.73 yuan, with aBank transaction recordsAs proof, low standard * * * city minimum wage of 1100 yuan.

2, the text of the labor contract the applicant forcibly detained the long-term, refusing to pay the social insurance since 2012, refusing to implement the minimum wage standard prescribed by the state, not timely and full payment of labor remuneration or deduction, not discussed by the representatives of the employees of the assessment methods against the lawful rights and interests of the applicant, the applicant submitted his resignation in March 8, 2012, haveNotice of resignationAndThe respondent receiptAccording to April 8th to stop work, leave the respondent, aThe transfer of work listPrevail.

3, about refused to return the text of the labor contract, refused to pay the rest day overtime and evaluation measures for the implementation of 2000 yuan monthly salary deduction facts, the applicant has to resort to the local labor administrative department, the administrative department of labor of labor inspection team orders the respondent shall issue and return, the respondent has ignored.

Two, the respondent shall return the text of the labor contract, and provide monthly payroll list entry

4, "labor contract law" sixteenth stipulates: "the labor contract by the employer and the worker consensus, and by the unit and the laborer on the text of the labor contract signed or sealed." "The text of the labor contract shall be made by the employing unit and the laborer shall each hold one copy."

5, the labor contract is the legal basis for the establishment of labor relations between workers and employers, the parties are clearly the basic form of their respective rights and obligations, the most direct evidence is to protect their legitimate rights and interests of workers. The applicant will belong to the labor contract without also seized, the legitimate rights and interests directly against the applicant and dignity. Therefore, the request to award the applicant to return a copy of the original text of the labor contract.

6, the labor department issued "Interim Provisions on the payment of wages" (December 6, 1994 notice of the Ministry of labour (1994) No. 489) sixth stipulates: "the employer must be recorded in writing to pay workers wages, the amount of time, the recipients name and signature, and save for two years in. The employer should provide a copy of their personal wage list to workers in the payment of wages."

7, the respondent violate the provisions of the Ministry of labor, never provide wage bill for the applicant for a ruling on a monthly basis, since the wage list entry.

Three, imposing "violations of probation" belongs to the erroneous application of the law of

8, the Ministry of education, the national development and Reform Commission, Ministry of human resources and social security two OO nine years in May 18th "on the abolition of" high school graduates allocation dispatch method "notice" pointed out: graduates of the probation system, "with the relevant national college graduates employment system reform, the relevant provisions of the measures are inconsistent with the provisions of the state the relevant personnel management policies and the labor contract law, actually has not performed. Through research, decided to abolish the "high school graduates allocation dispatch method"." The respondent has abolished compulsory execution of probation system, has no regulations on the basis of ministries and commissions.

9, the labor department issued "on the implementation of 'notice provisions of article ninety-eighth of the labor law of the people's Republic of China' opinion": "applicable laws, regulations, rules and other normative documents follow the following principles: (1) the legal effect of higher administrative regulations and local regulations; administrative regulations and local regulatory effect of higher administrative rules and local government regulations; administrative rules and local government rules and effectiveness than other normative documents. (2) in the application of the same effect level file, the new law is superior to the old law; the new regulations is better than the old regulations; the new rules is superior to the old rules; new normative documents over old normative documents." Accordingly, the system of probation, whether the provisions of administrative regulations of the State Council, or the Ministry of education, Ministry of labor, personnel and other ministries regulations, which are effective as of January 1, 2008 "labor contract law". The respondent to the nature of the enterprise, haveThe Department of industry and commerce enterprise machine-readable dataAs proof, by the adjustment of labor laws and regulations, in violation of the law to the applicant "Probation" system.

Three, to the illegal contract and has performed the probation period shall pay damages of 18200 yuan (2600*7.

10, "labor contract law" nineteenth stipulates: "the term of the labor contract for more than three months but less than one year, the probation period may not exceed one month; if the term of a labor contract year and less than three years, the probation period may not exceed two months; more than three years of fixed - term and non fixed term labor contract, the probation period may not exceed six months." Accordingly, the applicant signed employment contract for a period of 5 years, the probation period may not exceed 6 months, the respondent together with illegal novitiate dictate the probation period of 13 months, 7 months have actually fulfilled the illegal behavior.

11, "labor contract law" the eighty-three stipulation: "the employing unit violates the provisions of this Law and the employee probation period, the labor administration department shall order rectification; if the illegally stipulated probation period has been performed, the employer to employee probation period wage rate, as has been performed over a period of legal probation the payment of compensation to the workers." Accordingly, the respondent shall pay the illegal setting and has performed probation compensation of 18200 yuan (2600*7.

Four, the probation period shall be issued the deduction of wages 3480 yuan (580*6), and should add damages of 1740 yuan (3480*50%)

12, "labor contract law" Twentieth stipulates: "the workers shall not be less than the minimum wages for the same post or the labor contract to pay eighty percent wages during probation, and may not be lower than the minimum wage standard location of the employer." By the applicant and the applicant a wage stipulated in the labor contract is 2600 yuan, minimum wages for the same post is 2600 yuan, therefore, probation salary should be 2080 yuan (2600*80%), and the respondent has been paid by 1500, illegal deduction of 580 yuan per month, 6 months probation period shall be issued 3480 yuan (580*6.

13, "labor contract law" eighty-fifth stipulates: "the employer in any of the following circumstances, the labor administrative department shall be ordered to pay labor remuneration, overtime or economic compensation; labor remuneration is lower than the local minimum wage standard, the difference shall be paid; fails to pay within the time limit, the employer shall be ordered to the sum payable more than fifty percent below one hundred percent of the standard added to laborer pay compensation: (a) is not in accordance with the labor contract or regulations of the state, timely and full payment of labor remuneration; (two) is lower than the local minimum wage to pay wages to laborers; (three) arranging overtime work without paying overtime remunerations; (four) the dissolution or termination of the labor contract, not according to the provisions of this Law shall pay economic compensation." The respondent is not in accordance with the labor contract or regulations of the state, timely and full payment of labor compensation, the labor administrative department after instruction reissue ignored, therefore should be 3480 yuan reissues embezzlement, and compensation to pay 50% of the 1740 yuan (3480*50%).

Five, the applicant shall pay the rest day overtime charges totaling 15946.67 yuan and pay compensation 7973.34 yuan

14, according to theThe "log" accounting workStatistics, October 23, 2010 -12 month 31 days, by the applicant to arrange the rest day overtime for 24 days, and because of lack of hands did not make. The applicant probation salary during this period should be 2080 yuan (2600*80%), it shall pay overtime4590.34 yuan2080 21.75*24*200%.

15, according to theThe "log" accounting workStatistics, January 1, 2011 -2012 year in March 31st, by the applicant to arrange the applicant playday works overtime 47.5 days, also did not make, during this period, the applicant shall pay 2600 yuan, overtime pay11356.32 yuan2600 21.75*47.5*200%.

16, fourteenth and fifteenth according to the statistics, the respondent refuses to pay the overtime pay 15946.66 yuan (4590.34+11356.32). According to the "labor contract law" eighty-fifth paragraph third, the respondent shall pay damages of 7973.34 yuan (15946.66*50%). More than fourteenth, fifteenth, sixteenth of the total, the applicant shall pay 23920 yuan.

17, "labor dispute mediation and Arbitration Law" sixth article: "labor dispute occurs, the parties to submit their ideas, have the responsibility to provide evidence. The evidence relevant to the dispute matters is controlled by an employer, the employer shall provide; the employer does not offer, it shall bear the adverse consequences." Accordingly, the applicant has to provide extra evidence responsibility, we request the arbitration tribunal to order the applicant to provide the July 7, 2010 -2010 year in October 22nd the rest day overtime evidence"Log" accounting workDuring this period, and just to award the overtime.

18, if the respondent refuses to provide relevant evidence rest day overtime shall bear the adverse consequences to undertake the specific measures, request the monthly average days for calculating overtime work overtime. As mentioned before, 18 month October 23, 2010 -2012 year in March 31st, by the applicant to arrange the rest day overtime for 71.5 days, the average monthly overtime for 3.97 days. It can be calculated, for 4 months in July 7, 2010 -2010 year in October 22nd to work overtime for 15.88 days (3.97*4) during the period of probation, the salary is 2080 yuan, it shall pay overtime pay 3037.28 yuan (2080 21.75*15.88*200%.According to the "labor contract law" eighty-fifth paragraph third, the respondent shall pay damages of 1518.64 yuan (3037.28*50%).

Six, the respondent shallPaymentFor refusing to pay the social insurance premiums and other illegal acts to the applicant's resignationEconomic compensationGold5200 yuan(2600*2.

19, "labor contract law" thirty-eighth stipulates: "the employer in any of the following circumstances, the worker may discharge the labor contract: (two) fails to make full payment of labor remuneration; (three) fails to pay social insurance premiums for the worker; (four) the provisions of unit of choose and employ persons in violation of laws, rules and regulations regulations, damage the interests of the". The applicant is according to the law and the respondent of the three illegal and to make the decision to resign.

20, "labor contract law" the forty-sixth stipulation: "in any of the following circumstances, the employer shall pay the economic compensation to the employee: (a) the worker in accordance with the law the thirty-eighth regulation and terminate the labor contract." Rule forty-seventh: "economic compensation to workers in this period of work units, each for one year to pay one month's wages paid to workers. More than six months but less than one year, calculated according to a year; less than six months, half a month to pay economic compensation to the laborer wage." "As mentioned in this article refers to the monthly wages of workers in the labor contract is rescinded or terminated before twelve months average wage." Applicants in July 7, 2010 to enter the respondent's work, expired in March 31, 2012 1 years and 8 months, should calculate compensation by 2 years, according to the respondent shall pay compensation of 5200 yuan (2600*2.

Seven, the respondent shall2012 January -3 months to pay 6000 yuan wages shall be seized and pay compensation 3000 yuan

21, in 2012 January, the implementation of the new performance appraisal methods, the monthly salary is only 590.73 yuan, less than the standard * * * city minimum wage of 1100 yuan, the monthly 2000 yuan (with no deductionBank transaction recordsAs), a total of 3 months deduction of 6000 yuan.

22, "labor contract law" fourth stipulates: "the employer in the formulation, amendment or decisions directly involves the vital interests of labor remuneration, working hours, rest and vacations, labor safety and hygiene, insurance and welfare, staff training, labor discipline and labor quota management rules or important matters, shall be approved by the staff and workers congress or all the employees for discussion, put forward a proposal and opinion, determine with the trade union or employee representatives through consultation on an equal footing." "Directly involving the immediate interests of the employee rules and regulations should be publicity, or inform the workers."

23, it should be stressed, the implementation of the performance appraisal methods, related to the vital interests of each employee,But without the workers congress or the employee congress to discuss, not let the employees and employee representatives put forward proposals and opinions, not determined in consultation with the trade union or employee representatives, no advance publicity, the applicant did not know, just by the respondent leadership suddenly promulgation, illegal anti law, the applicant will have no legal effect.

    24, now the respondent to implement the new assessment method as an excuse to unilaterally change the labor contract, monthly wages 2000 yuan, seizure, also belongs to the default behavior, the labor administrative department shall order it to make corrections later ignore. So for a ruling to pay 6000 yuan detained and shall pay damages of 3000 yuan (6000*50%).

25, the applicant should pay compensation 50% has no legal basis? "Labor contract law" eighty-fifth stipulates: "the employer in any of the following circumstances, the labor administrative department shall be ordered to pay labor remuneration, overtime or economic compensation; labor remuneration is lower than the local minimum wage standard, the difference shall be paid; fails to pay within the time limit, the employer shall be ordered to more than fifty percent of the sum payable one hundred percent the following standard added to laborer pay compensation: (a) is not in accordance with the labor contract or regulations of the state, timely and full payment of labor remuneration; (two) to pay workers wages below the local minimum wage standards; (three) arranging overtime work without paying overtime remunerations; (four) the dissolution or termination of the labor contract not in accordance with the regulations, pay economic compensation to the employee." "The people's Republic of China labor contract law interpretation" pointed out: "fails to pay within the time limit, the employer shall be ordered to fifty percent of the sum payable to the employee more than one hundred percent of the standard provisions to pay compensation", essentially belongs to a similar punishment of execution punishment and measures, for the employer fails to pay to the employee shall pay the expenses, by adding a certain amount of damages means, promoting the employers' obligation to pay, in order to protect the legitimate rights and interests of workers. The employer shall be ordered to pay damages of the premise, the employer is not in accordance with the provisions of the administrative department of labor performance period to fulfill their legal obligations to pay related fees to workers.

26, the respondent in violation of the provisions of laws, underpaid, deduction of wages, no overtime, the applicant has a complaint to the labor inspection department, the labor supervision departments have been verified, and issued orders the respondent to pay the applicant has been delayed, not pay more than performance, time limit is 16 days, the applicant was forced to apply for labor arbitration, request the ruling is the applicant to pay 50% of the compensation, not only has legal basis, but also has the labor administrative departments "ordered" program, should be the labor arbitration departments support.

Based on the above facts, according to the "labor contract law"And "labor dispute mediation and Arbitration Law"The relevant provisions,Hereby apply for labor arbitrationAccording to the ruling, request, to support the request of the applicant.

Yours sincerely

* * *The municipal labor dispute arbitration committee

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