The labor dispute case:The types of cases:Double pay dispute

Summary of the work that the labor contract signed by all employees have been signed, the request that the double wages should be supported?

-- Comment on Wang with a company in Beijing labor dispute case

[of the labor dispute case dispute focus]

(a) Wang as the administrative director of signature "all employees in labor contracts have been signed" work schedules can as the company has signed a labor contract evidence?

(two) Wang, administrative supervisor is responsible for the signing of labor contracts signed labor contracts with their own?

[keyword] the labor dispute cases double wagesSign labor contractAdministration SupervisorLabor disputes

The plaintiff (the arbitration plaintiffs): Wang

The defendant (the respondent): a Beijing company

    A labor dispute case, the basic case

Wang Mouyuan Department of Beijing the employees of a company.2008Years10Month27Day, Wang and a company in Beijing to establish labor relations, as the company administrative personnel department personnel supervisor.2009Years3Month9Day, Wang Mou to a Beijing company did not sign labor contracts, wage arrears, not pay social insurance for notification of a Beijing company to terminate the labor relationship, require the company to pay double salary did not sign labor contract20000Yuan, settlement2008Years12Month under the salary1000Element, and the payment2009Years1Month1To2009Years3Month9Daily wage.

Two, the labor dispute case trial results

Arbitration by the court found:Wang Mou to2008Years10Month27Daily work in Beijing a company as a personnel director. Wang Mou provides recruitment notice that probation a monthly wages4000Yuan, the salary after becoming a full member5000Yuan per month, inscribe seal of a Beijing company approval notification of acceptance, but not approved for content. A company in Beijing is a monthly salary of2000Yuan a month, but did not provide valid evidence to prove. Wang to the Arbitration Commission to produce exit formalities single, working file transfer list are proved to2009Years3Month9With a company in Beijing for separation procedures and end the labor relations. Wang to the Arbitration Commission for its2008Years10Month27To2009Years3Month9Daily attendance card, a Beijing company recognized the08Years12January09Years3Attendance month trial, both sides were approved Wang's responsibilities include signed labor contracts with employees. A Beijing company provides2008Years12Month29Japan "weekly summary of the work and work plan next week", the responsible person Wang "last week of work summary-Working content "in the3A: "a Beijing company and the headquarters staff labor contract signed, so that all the staff of the labor contract". Wang Mou signed signature recognition for me. A company in Beijing that Wang Mou to2008Years12Month and termination of labor relations, and in another company, but failed to provide evidence to prove its claim.

The Arbitration Commission, after hearing that:Both the establishment of labor relations, it shall perform the obligations in accordance with the law. A company in Beijing that Wang Mou in2008Years12Month has been with the company to terminate the labor relationship, and works in another company, but not its claims to provide evidence, should can't bear the responsibility of proof. For a company in Beijing not to the Arbitration Commission for Wang's payroll, also did not prove has issued a wage. According to Wang, the attendance card offer evidence, the Arbitration Commission identified Mr. Wang probation first month's salary4000Yuan, the salary after becoming a full member5000Yuan a month. Beijing, a company shall pay the Wang2009Years1Month1To3Month9Day's wages, and shall pay Wang2008Years12Month under the salary1000Element. Both sides recognized Wang's responsibilities include signed labor contracts with employees in the trial, and a Beijing company provided by Wang signed "weekly summary of the work and work plan next week", display of all employees to sign labor contracts. Therefore, a Beijing company does not intentionally and Wang did not sign labor contract act, double pay, so the evidence requirements Wang Beijing a company to pay did not sign labor contract according to the disadvantages, the Arbitration Commission shall not support. Wang has not signed labor contracts for half a month of economic compensation2375Element is not based on law, the Arbitration Commission shall not support.2009Years7Month13Day, the Arbitration Commission made the following decision:

A certain company, Beijing should be in the ruling came into effect in fifteen days, a one-time payment of Wang2009Years1Month1To2009Years3Month9Daily wage9195.4Element;

Two, Beijing a company since the date of entry into force of this decision within fifteen days, a one-time payment of a salary1000Element;

Three, rejected Wang the other application request.

The results of the arbitral award, Wang refuses to accept, in2009Years7Month27Day, bring a lawsuit to the people's Court of Haidian District, require the company to pay the arrears of wages and removing the salary difference additional, also should be paid according to law did not sign labor contract double pay and pay economic compensation to terminate the labor contract.

The first instance court found:2008Years10Month27Day, the plaintiff to the defendant company work.2009Years3Month9Day, the plaintiff to the defendant arrears of wages, social insurance premiums, and not conclude a written labor contract on the grounds, and valve company to terminate the labor relationship.2009Years3Month9Day, the plaintiff and the defendant for the work handover procedures and turnover.2009Years5Month19Day, the plaintiff to the Arbitration Commission complaint.2009Years7Month13Day, the Arbitration Commission ruled that the defendant the plaintiff2009Years1Month1To3Month17Daily wage9195.40Yuan, the salary1000Yuan, dismissed the plaintiff's other claims. The defendant agreed with the ruling, and has the actual performance. The plaintiff also said to require the defendant to pay2009Years1January3Monthly wages, salary difference and economic compensation claim.

In the course of legal proceedings, the labor dispute case between two sides of the dispute are:

First, the plaintiff said the probation monthly pay for4000Yuan, after the monthly wages for5000Element, and provides affixed with seal recruitment certificate. Valve company that this to prove that the plaintiff is forged, called the plaintiff for the monthly wage2000Element.

Two, the defendant said the job duties include signed labor contracts with employees, and for social insurance payment procedures. The plaintiff denies. The defendant provided the plaintiff signed "summary of the work and schedule", according to the sheet,2008Years12Month15To19On the plaintiff's main task is to sign labor contracts with the "all employees of the company",2008Years12Month29On the plaintiff signed "the defendant company employee labor contract signing ceremony, so that all employees to sign labor contracts". Schedule specified below the table "...... Provided for by the administrative department of the administrative department, uniform reporting Huang total". The schedule of the authenticity to be recognized, but that the mandatory provisions of the defendant to circumvent the law, require employees to sign labor contract in the blank, and then recover the full contract. The defendant argued that the plaintiff in the left to his labor contract away. The defendant submitted2009Years1On the plaintiff to other companies for the social security fee monthly report, the authenticity of this report is approved. Now both sides affirm social insurance fee has not been paid during the work of the plaintiff.

The above facts, a presentation by both parties and employment credential, work summary and plan, monthly statements of documented evidence.

The court of first instance that:2008Years10Month27To2009Years3Month9Day, the plaintiff in the work, the labor relationship has been formed between the two parties.2008Years11Month27To12Month28Day, the defendant is not in accordance with the law in a timely manner and the plaintiff to conclude a written labor contract, should pay the corresponding double pay the difference. Plaintiff in signing labor contracts with the workers. In the course of work, and the on2008Years12Month29Japan signed "the accused employee labor contract signing ceremony, so far all employee labor contract signed", so the plaintiff asked the defendant to pay2008Years12Month29Days after the double pay the difference litigation request, the court shall not support. The plaintiff claims the defendant asked employees in the labor contract signed by the blank, and then recover the full contract, the defendant claims the plaintiff leave to his labor contract away, insufficient evidence, the court shall not be accepted.2009Years1January3Month, the defendant fails to pay to the plaintiff and the defendant has not timely pay, with the signing of a written labor contracts, not in time for the plaintiff to pay social insurance fees, the plaintiff and defendant hereby request to terminate the labor relationship, justification, the defendant shall pay economic compensation to terminate the labor relationship to the plaintiff. The defendant fails to pay economic compensation the plaintiff to terminate the labor relationship, it shall pay50%Additional economic compensation. To sum up, in accordance with the "people's Republic of China Labor Contract Law" article thirty-eighth, article forty-sixth, article forty-seventh, the provisions of article eighty-second, the decision as follows:

One, the defendant to pay the plaintiff from November 27, 2008 to December 28th double pay the difference 5000 within fifteen days after the effective date of this decision, the economic compensation for termination of a labor contract is two thousand four hundred yuan and fifty percent additional economic compensation one thousand two hundred yuan, a total of eight thousand six hundred yuan;

Two, dismissed the plaintiff's other claims.

For the labor dispute case trial results, the two sides did not appeal.

Three, analysis of the opinion

(a)The company does not exist do not sign labor contract deliberately without pay double salary?

"Labor contract law" eighty-second stipulates: "the Employer from the date when the employee more than one month but less than one year and not conclude a written labor contract, it shall pay the laborer the salary of two times". "Labor contract law" Regulations for the implementation of the sixth further clear: "the laborer is not with the employer to conclude a written labor contract, the employer shall give written notice to terminate the labor relationship between the laborer." Thus, the workers have no labor contract, the employer does not exist without a deliberate, unless the employer terminates the labor contract in time, otherwise still cannot avoid the double salary payment obligations to the workers. And the arbitral award recognizes the non deliberately not and Wang Mou signed labor contracts shall not surnamed Wang to pay double salary and the "labor contract law" and "labor contract law implementation rules" spirit and legal provisions do not conform to a company in Beijing.

(two) Wang as the administrative director of signature "all employees in labor contracts have been signed" in the "summary of the work and plan" can be identified as the company has signed a labor contract evidence?

"The third stipulation:" labor contract law "to conclude a labor contract, should follow a lawful, fair, equal voluntary, consensus, honesty and credit principle." The sixteenth stipulation: "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 unit and the laborer shall each hold one copy of the labor contract." The seventeenth stipulation: "the labor contract shall contain the following terms: (a) the employer's name, address and legal representative or principal responsible person; (two) the worker's name, residence and resident identity card or other valid identity certificate number; (three) the term of the labor contract; (four) the work content and the place of work; (five) work time and holidays; (six) the labor remuneration; (seven) social insurance; (eight) the labor protection, working conditions and occupation hazard protection; (nine) other items that shall be included in the labor contract law, regulations. In addition to the mandatory provisions of the provisions of the preceding paragraph of the labor contract, the employer and the employee may stipulate a probation period, training, confidentiality, supplementary insurance and welfare and other matters." The above provisions can be seen, sign labor contract is a serious matter. If only by the signature of the staff can be said that both sides have signed a written labor contract, I worry about such a result, did not sign labor contract with employees units can use them to confirm the signing of labor contracts have been signed and put the note in their own hands, once the laborer applies for arbitration for twice the salary, he took it. Workers have been confirmed, show the labor contract has been signed. So, Shen Binti's lawyer thinks, solely on the basis of the workers signed labor contracts have been signed with the note that is questionable, and other evidence to prove that the best assistant.

  Company name: Beijing city law firm tannins    Author: Shen Binti                

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[Shen Binti] lawyerShen Binti, a lawyer, a Juris Master from Xiamen University, Beijing labor law experts. Lawyer Shen Binti is mainly engaged in the research of legal risk prevention and control law of labor disputes and personnel system and practical operation, professional injection solution in cases of labor disputes and to make, modify, improve employee handbook, the prohibition of business strife, confidentiality agreement, the enterprise personnel management system to provide training, labor law, labor law as special legal counsel. Shen Binti lawyer address: Beijing city Chaoyang District headingMENFinance and Trade Center (quintiles building on the south side)BSeat8Layer804Shen Binti lawyers contact:Email shenbinti@yahoo.com.cn  Business telephone (+86)13661313967  (+86)15301115671.For more details on Shen Binti's interactive blog:Http://blog.sina.com.cn/shenbinti