Guiding opinions on Several Issues concerning the trial of labor dispute cases

 

( 2008Years3Month1DateTrial 2010Years3Month3DayShenzhen City Intermediate People's court trial committee of the4Meeting approval)

 

In recent years, the number of the labor dispute cases increase rapidly, the labor laws and regulations and judicial interpretations have been introduced and perfected, our former hospital by some legal advice has been unable to meet the needs of trial practice. To solve the labor dispute, a labor dispute case referee unified standard, improve the efficiency of labor dispute cases, in accordance with the law to protect the legitimate rights and interests of the labor dispute between the parties, to maintain social stability, according to the "labor law", "labor contract law", "civil law", "labor dispute mediation and Arbitration Law", "the implementation of the labor contract law," "Regulations of Shenzhen special economic zone to Promote Harmonious Labor Relations Ordinance" and other laws and regulations and relevant judicial interpretations of the Supreme People's court and the higher court of the relevant guidance, combined with the labor dispute in judicial practice in our city, based on the compilation of the original meeting minutes and other normative views formulated the guiding opinions.

 

A labor dispute case, the scope of accepting cases

1The following disputes, labor disputes, should be the:

(1) workers and employers because of endowment insurance capture expends fixed number of year dispute;

(2The workers) to the employer fails to pay social insurance premiums for the loss, require the employer to pay inductrial injury, unemployment, maternity, medical treatment and compensation;

(3) workers to employers to reduce the payment of social insurance premiums wage leads to the loss of the grounds, to require the employer to bear the loss of inductrial injury treatment.

2Reform of government departments, leading state-owned enterprises, because the enterprise laid-off workers, the wages owed to the dispute, government departments should be in accordance with the provisions of enterprise restructuring policy co-ordination to resolve, the people's court shall not accept.

3, workers and employers because of housing provident fund disputes, not for labor dispute processing.

4The parties, have signed the labor dispute arbitration committee for labor dispute mediation, afterwards back to the people's court, the court shall not accept the case; the accepted, should reject. But the ruling shall explain the mediation agreement has been in force, both sides according to the original mediation execution.

5The workers to perform their duties, in the unit loan credit disputes, a party to a labour dispute or for other reasons to the court, ruled inadmissible; accepted, the court rejected the prosecution.

6The mediation organization, labor dispute mediation committee, the people's mediation committee under the auspices of, both parties to reach a mediation agreement, the effectiveness of civil contracts. If one party fails to perform the payment obligation determined in the mediation agreement, the other party may directly to the court.

7The parties for the process, reduce labor disputes, will have to pay the content change of labor dispute case directly to the people's court, such as payment for labor dispute into debt disputes, injury accidents to damage compensation dispute, the court should be based on "labor law" the provisions of article seventy-ninth shall not accept the application, notify the parties to the labor dispute the arbitration committee for arbitration.

Workers and employers to reach a clear compensation agreement on both sides of the labor dispute, after the payment of labor disputes, to the court to dispute the debt; or workers with employer wage IOU for direct evidence to the court, claims not involving other labor disputes, according to ordinary civil disputes the admissibility.

8Keep commercial secrets or, if the employee violates the agreement of prohibition of business strife, as required by the employer shall be liable for the breach of contract, as the labor dispute handling.

The employing unit to the laborers to disclose trade secrets bear the liability for infringement of rights, not for labor dispute processing.

9The workers, to the employer's rules and regulations to correct, not for labor dispute processing; the employee by the employer's rules and regulations in violation of laws and regulations, causing damage to its grounds, to require the employer to bear the liability for compensation, should be used as the labor dispute handling.

10The workers to seek relief, in the administrative department, and then to the labor arbitration departments to apply for labor arbitration, the not presented in the requirements of the administrative department of labor dispute, should be accepted; the proposed has in the administration's request shall not be accepted.

 

Two, the main problem

11"Three to one meeting," enterprise, because it does not have the external independently bear civil rights and obligations of the conditions, in the proceedings should be "three to one up" enterprises and foreign investors has become one of the parties, joint responsibility.

To the foreign investors shall deliver the legal documents, legal documents can be sent to the "three to one up" enterprise collection.

12, individual owned enterprises and workers labor disputes happen, personal owned enterprises for the party, but should also indicate the nature of investor.

13The unit and the laborer, non legal dispute, the superior entity as a co litigation subject to participate in the proceedings, the legal entity shall bear supplementary liability.

14Workers have the name, and an individual industrial and commercial households produce labor dispute, should be in the business license registration number for the party, but should also specify the nature brand owners.

According to the above principle, the owners and operators of inconsistencies, column size and the actual operator for the common person.

15Legal person units in the new unit, open process, with the new name of the unit recruits laborers disputes, not run into, out of the corporation is a party; run up, out of the new entity is a party.

16The subject of civil procedure, the employer after the merger or division, can be determined according to the subject of civil procedure law combined with discrete processing principle. A unit before the merger of the dispute, the merged with the employer as a party; the separation of the employing units before the dispute, after division before the split unit share rights and obligations are clear, which bears the rights and obligations of the entity is a party; not clear, each unit after division as a common the parties.

17Automatic shutdown, enterprises, as the automatic closure of business, revocation or revoke the business license, without liquidation and cancellation, shall be listed in the enterprise for the party. Such as the establishment of the liquidation group of creditor's rights and liabilities, column for litigation representative responsible for the liquidation group; no liquidation group, the obligations set out as the lawsuit on behalf of the liquidator.

The provisions of the preceding paragraph, the obligor of liquidation is determined according to different properties of enterprises respectively, namely state-owned enterprise of its competent department; non corporate collective enterprises run or pay for it; corporate joint ventures, Sino foreign joint venture enterprise legal person and a wholly foreign owned enterprise legal person as the investors; limited liability company to its shareholders; the Limited by Share Ltd the controlling shareholders.

18Due to hire workers, not with the original employer terminates the labor contract by the unit of choose and employ persons, the employer shall determine the lawsuit, the defendant according to the employer's request. The original employer only request to resolve and termination issues related to the labor contract, only to workers as the defendant; if the original employer economic loss claims to the employee and the employer should be present, workers and employers as a co defendant.

19In the construction process, construction workers, as the natural person actual construction and illegally hire dispute, laborer applies for arbitration or lawsuit, should the employer will have the qualification of employment as the defendant or the defendant, and visual needs of the case will be the construction of natural persons, the subcontractor, illegal subcontracting people as the defendant or the defendant, third.

 

Three, the question of burden of proof

20The plaintiff, to the people's court for the labor dispute lawsuit should submit the following evidence:

(1The basic situation of the defendant) material evidence, the plaintiff, a natural person should prove the name, date of birth, nationality, work units, domicile, residence, ID number, enterprises, individual economic organizations, state organs, institutions, social organizations should prove of its industrial and commercial registration or registration situation and the organization code;

(2Labor arbitration) to the labor arbitration committee submitted a "complaint";

(3) the labor arbitration committee for arbitration or refuse to accept a written ruling, decision, notice;

(4The relevant evidential materials) the plaintiff received award, decision or notification time;

(5) the parties to the labor arbitration commission fails to make a decision on accepting and direct access to the courts, the workers shall be submitted to the Arbitration Commission issued by labor has accepted the application documents and materials that have not yet been accepted;

(6) the parties to the labor dispute arbitration commission fails to arbitration and directly to the court, the workers shall be submitted to the labor dispute arbitration committee issued a "notification of acceptance" and pending certificate.

21, labor dispute, the parties to the dispute whether the existing labor relations, the burden of proof the following distribution:

(1) that labor relations established a party shall be submitted to the labor contract or pay for, social insurance, welfare and management to provide relevant evidence materials;

(2The employee has the burden of proof to prove that) the employer of labor, but the employer that labor relationship is not established, the employer shall submit the proof.

22, employers are not signed labor contracts with workers, found the existence of labor relations can refer to the following documents:

(1) certificate or record payment of wages (employee payroll roster), pay social insurance records;

(2) the employer to grant workers "work permits", "service card" to prove identity documents;

(3) employers of workers in the recruitment of "registration form", "application form" and other recruits record;

(4The attendance record);

(5) testimony of other workers.

(of which1()3()4Relevant documents) by employer to bear the burden of proof.

23Due to the payment of wages, the parties dispute, the burden of proof the following distribution:

(1The employer shall) laborer salary of burden of proof.

(2) the employer the deferred payment of wages, the workers that employers, no arrears of wages, the employer shall be deferred payment of wages for burden of proof.

(3Workers wages higher than) that the labor contract or the actual wage amount, workers should be its wage burden.

(4Because of the employer) to reduce the occurrence of the labor payment disputes, by employers bear the burden of proof.

(5) workers and employers agreed to pay the business royalty payments after, the burden of proof by the labor burden of payment.

(6) worker claims overtime wages, employers have denied overtime, with the burden of proof in unit laborer did not work overtime; the employing units to electronic attendance record confirmed by the worker that the worker did not work overtime, electronic attendance records to the employer shall be adopted; the employer can not work overtime time the burden of proof, should adopt worker claims time, but workers that was beyond the scope of reasonable should make corresponding adjustment.

The employer employee attendance records no signature, but there are other evidence (such as data the wage payment) support, can be identified as the working hours of labourers in evidence.

(7Employee employer) that the default in payment of labor remunerations, the employer shall pay wages of workers to apply for two years before the burden of proof on the labor arbitration, labor, but there is evidence in the labor arbitration application prior to the employer advocated its rights, employers should first before the workers claim two years of payment of wages to bear the burden of proof.

Payment of wages has called "includes the corresponding provisions to pay staff salaries in Shenzhen city ordinance" article fifteenth paragraph second.

24By the parties, the labor contract with the lifting of the dispute, the burden of proof the following distribution:

(1) that the parties conclude a non fixed term labor contract, shall conclude a non fixed term labor contract conditions achievement proof;

(2The parties concerned have) to terminate the labor contract or terminate labor relations of fact fact, should burden of proof;

(3The burden of proof) cause the employer to terminate the labor contract or factual labor relationship;

(4The employer employee) that serious breach of labor discipline or the rules and regulations of the enterprise, should be on the workers there are serious breach of labor discipline or the rules and regulations of the enterprise of facts and rules and regulations of the enterprise through democratic procedures formulated and factual proof have been announced to the workers.

25, 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.

26The court, prosecution, shall immediately appoint the time limit for adducing evidence. Application of the summary procedure, the time limit specified by the respondent shall generally not exceed period; apply the ordinary procedure of trial, the specified period is generally thirty days. The parties did not submit evidence within the specified time period, regarded as giving up the right to.

27The parties, increase, modify the claim, should be put in evidence before the expiration of the term.

28The appeal, the court of second instance shall specify a time limit, the new evidence in the case, the specified period is generally fifteen days, the parties did not submit evidence within the specified time period, regarded as giving up the right to.

29The evidence, the parties in the labor dispute arbitration to the arbitration tribunal shall be submitted by the burden of proof is still within the time limit for adducing evidence the court appointed court.

30Should strengthen guidance, litigation court workers for proof ability is weak, and the time limit for adducing evidence on workers' discretionary leniency. The court in when necessary according to the authority to investigate and collect evidence, not easily with laborer insufficient evidence or proof upon the expiration of the period to reject the claim.

 

Problem four, and Arbitration

31, the labor dispute arbitration commission shall not accept the application or fails to make the decision of acceptance, the applicant may matters directly on the labor dispute to the courts. The labor dispute arbitration commission fails to make an arbitration award, the parties may matters directly on the labor dispute to the courts.

The parties to the labor dispute arbitration commission fails to arbitration and court proceedings, the court reviewed does not exist identification, delays in the delivery, transfer of jurisdiction, the case scheduling and wait for reconsideration, litigation, inductrial injury disability evaluation conclusion, the reasons for suspension, should be accepted.

The court decides to accept the application of the workers, should be in within five days of receiving written notice to the labour dispute arbitration committee for arbitration cases end.

32If a party refuses to accept, the labor dispute arbitration commission shall not accept the decision, notice, shall decide the date on which the court within fifteen days. The parties to the court, according to the "Regulations of labor dispute mediation and Arbitration Law" in article fiftieth, ruled inadmissible; accepted, the court rejected the prosecution.

33, the parties to the labor dispute arbitration committee to allow withdrawal of appeal or according to withdraw the appeal decision, to the court, ruled inadmissible; accepted, the court rejected the prosecution.

34If a party refuses to accept, the labor dispute arbitration committee for arbitration award or decision of rejection, notice, to the court, the court shall make allowed to withdraw or by withdrawing treatment decisions, and have served to the parties, if the parties to a lawsuit, the court shall not accept the.

35, both parties are not satisfied with the labor dispute arbitration committee unified award does not belong to a final ruling of the labor dispute cases, to the court, the court shall trial, both parties are the plaintiff and the defendant. During the litigation, a party to the withdrawal of the suit, the court shall, according to the claims of the other party to continue the trial.

One party against the other party, upon receipt of the labor dispute arbitration award fifteen to prosecute or counterclaim, the court shall not accept the.

"Labor dispute mediation and Arbitration Law" article forty-eighth, forty-ninth and fiftieth respectively specified in fifteen days, thirty days, both parties shall be received on the next day of the arbitral award.

36Labor relations, does not exist between the two parties, but one of the parties to the labor dispute that apply for labor arbitration, labor dispute arbitration committee to the two sides do not belong to the scope of labor law is made not to accept the written ruling, decision or notice, party refuses to obey, to the court, upon examination, both sides do not exist in labor relations, the court rejected the prosecution to the subject is not suitable for.

37Labor dispute arbitration, one party or both parties consist of two or more persons, the court should be regarded as the case requires will not bring an action in the court of the parties as a defendant or the third party.

38, courts in the trial of labor dispute cases, the arbitration award that the omission of the parties, in accordance with the law to the additional party.

39Labor dispute arbitration institutions, the complainant requests to a specific award item, the parties did not have specific award item to initiate proceedings, as its endorsement of the specific award item.

40The parties in the litigation process, increase about wages25%The economic compensation and economic compensation of labor contract50%Additional economic compensation request, can be identified as the litigation and litigation of labor disputes is not divisible. But the parties in respect of the same claim to increase the amount of, not support.

41In the process, the court trial of labor dispute cases, should actively review the labor dispute arbitration award has been sent to the other party, if the other party does not receive of the arbitral award, the court shall rule to suspend the trial.

42If a party refuses to accept the labor, labor dispute arbitration commission to make a payment to the court's ruling, the court did not support the litigant request, should be rejected the litigation request at the same time, the implementation of specific content of the arbitration award in sentence form of expression.

43According to the actual needs of the trial, revocation of an arbitral award, the enforcement of the arbitral award, the people's court may apply to the Arbitration Commission of the original ruling Labor Dispute access files.

The court in dealing with such cases made in the process of ruling, the Arbitration Commission shall send to the original ruling Labor dispute.

 

Five, other procedural issues

44The complaint or appeal, the labor dispute cases, workers do not pay fees for accepting the case; the conclusion of the case, shall be borne by the losing party. Workers lose, the court in accordance with the law by the workers to apply for corresponding workers bear the litigation costs shall be reduced or exempted.

45The workers did not appear in court, participate in litigation, the court must verify whether there is justification for workers not to appear in court, not simply made by withdrawing treatment decision or only because workers did not appear in court and a default judgment is not conducive to the workers.

46The trial of labor dispute cases, the court, the parties do not raise a defense against limitation of action, the court shall not of limitation of action and take the initiative to apply for the interpretation of the limitation of actions.

47,2008Years5Month1Future labor disputes handled by the application of "labor dispute mediation and Arbitration Law", but for2008Years5Month1Before the occurrence of cases of labor disputes, labor law is still applicable "provisions relating to limitation of arbitration and the right to sue.".

48, "labor dispute mediation and Arbitration Law" article forty-seventh shall be understood as follows:

(1Recourse) workers labor remuneration, work-related injury medical expenses, economic compensation or damages, the request for arbitration involving several, calculate the amount is less than the local minimum wage standard twelve months amount of breakdown, the arbitral award for the final award;

(2According to the requirements of national legal standards) workers perform work, rest and vacation time to enjoy the controversy, as well as the workers and employers have prescribed in Article 1 of the views of the social insurance disputes, arbitration award shall be final.

49The final award, workers at the basic level to the court, and the employing units in accordance with "Regulations of labor dispute mediation and Arbitration Law" in article forty-ninth to the court for the cancellation of the arbitration award, the intermediate court on employers in the cancellation of the arbitration award application inadmissible. The accepted, should be ruling the termination of litigation. But the grass-roots court, against the table should be employer together.

The prosecution withdrawal after or as a result of than the prosecution dismissed the prosecution, the employer within thirty days after receiving the may apply to the labor dispute arbitration commission is located intermediate court for revocation of an arbitral award as of the date of order.

Intermediate court for the cancellation of the arbitration award for the employing units in the acceptance, or acceptance of local grassroots courts in workers to accept the award after the case, should be in the trial to examine whether exist at the same time refuses to accept the final award of the prosecution or apply for revocation of an arbitral award.

50, the court accepts the application for bankruptcy, wages, economic compensation, medical expenses and other labor creditor list workers on the management one of the listed objection, management are not correct, the laborer shall accept an application for bankruptcy court to sue. To accept an application for bankruptcy court is the intermediate court, the intermediate court can specify the grass-roots court case.

51According to the second paragraph, the workers "labor contract law" thirtieth and "labor dispute mediation and Arbitration Law" the provisions of article sixteenth to the court for an order of payment shall be in accordance with the provisions of the civil procedure law, "" the seventeenth chapter.

The court to terminate the procedure, the workers should be first on the labor dispute to the labour dispute arbitration committee for arbitration.

 

Six, execution and property preservation problem

52, the labor dispute arbitration process, the employer could abscond, transfer of any property, workers can by the labor dispute arbitration committee "notification of acceptance" grassroots to the employer to court at the domicile apply for the preservation of property. The application meets the "Civil Procedure Law" provisions of article ninety-third, the court shall make the property preservation order. To the laborer applies for property preservation, if because of economic difficulties to provide property security, the court may reduce or exempt workers of the secured obligations, if necessary by the guarantor guarantees.

The workers came into force in the arbitral award or court judgment shall within three months after did not apply to the court for compulsory execution, the employer requests to terminate the preservation, the court shall terminate the measures of preservation.

53Labor dispute arbitration committee, in case of emergency, in accordance with the law in the labor dispute cases final ruling, ruling the employer to pay workers wages, medical expenses, the employer shall not alone on ruling to the court. The employer refuses to perform, the employee may apply to the court for enforcement.

54Labor dispute arbitration committee, according to the "labor dispute mediation and Arbitration Law" the provisions of article forty-fourth before the enforcement of the award to the grass-roots court execution domicile or property of the execution, shall provide the following information to the court:

(1Executive function (function) to indicate the telephone and the accommodation case both parties);

(2Before the execution of the arbitral award);

(3The proof of service) award.

55To the laborer, to apply for enforcement of labor dispute cases, the court can not perform registration order constraints, give priority to the implementation of.

56The workers, the people's court for compulsory execution of the labor dispute cases, the applicant cannot provide the debtor's property condition or clues, the court's authority on the debtor's property condition investigation and evidence collection.

57Continuous, large, enterprise workers owed wages, but the companies have available for the implementation of the right to use the land, plant, equipment and other tangible assets, the court in the implementation of the auction process can require the auctioneer to advance the enterprise workers owed wages, and then from the auction enterprise property proceeds in advance the amount deducted.

58The court on wages, unit of execution to each payment, the payment shall enter the implementation accounts within three days from the date of payment to be the wages of workers.

59During the period, the cancellation of the arbitration award for compliance with the statutory conditions the employing units in the court, the court may effective enforcement of arbitration award does not stop.

The employer for the cancellation of the arbitration award is rejected to the court, but in the implementation process in the same reasons not to execute the application, the court shall not support.

60, execution of workers to apply for labor dispute cases, the court should strictly apply the Guangdong Provincial Higher People's court "on the application to suspend the implementation of a number of issues opinions", without exhausting all enforcement measures, shall rule to suspend the execution.

61, the employer has the ability to perform a legally effective civil judgment of the arbitration award or the labor dispute cases and refuses to perform, the court may according to the seriousness of the employing unit responsible person shall be fine, detention; if the circumstances are serious, basis "criminal law" article 313rd shall be investigated for criminal responsibility.

 

Determination of seven, labor relations

62The workers dispatched to the joint venture, equity participation, work with the original employing unit remains labor relations, the original employing unit and joint venture participation units, wages for workers, social insurance, welfare and so on have expressly agreed by the parties, and the laborer does not raise any objections, according to the agreed; no agreement or no clear agreement, the relevant treatment of workers by the original employing unit and joint venture participation units, common burden.

63Other people's names, workers and employers to sign labor contracts, should determine the subject according to the actual labor relationship.

64The staff sent down, enterprise level corporate units or staff will be between a subordinate corporate units mobilize, signed by employees and their units of labor contract to identify the labor relationship, if not signed labor contracts, labor relations according to determine wage relations.

65Workers, employer fails to conclude a written labor contract, but also have the following situations, the labor relationship is established:

(1) employers and workers in accordance with the law, regulations of the subject qualification;

(2) each labor employer shall formulate rules and regulations applicable to the workers, workers for labor management unit, in the arrangement of the employer paid labor;

(3) of their labor is part of the unit operations.

66Residents, foreigners, Hong Kong and Macao regions in mainland China employment shall go through the corresponding employment, the employment relationship shall be treated according to labor relations. If not dealt with in accordance with the "employment permit for foreigners", "Hong Kong and Macao employment permit" and other employment procedures, should be that the labor contract is invalid labor contract. Resident foreigners, Hong Kong and Macao regions have already performed labor, the employer to pay labor remuneration contract.

Resident representative offices of foreign enterprises, enterprises in Hong Kong and Taiwan not by foreign employment service unit directly recruit Chinese employees, should be recognized on labor relations, employment relationship.

67, the dispatch of labor relations, labor units in violation of their legal obligations, cause laborer damage, by the employing unit shall bear the responsibility for compensation, the labor dispatching unit shall bear joint and several liability; the labor dispatch unit in violation of their legal obligations, resulting in damage to the laborer, the labor dispatch unit shall bear the responsibility for compensation, the employer shall assume joint and several liability.

68, the employer has reached the statutory retirement age but did not enjoy treatment of primary endowment insurance of personnel, between the two sides formed labor relations, can be treated as labor relations.

When an employer recruits have enjoy treatment of primary endowment insurance or pension personnel, between labor relations should be treated according to the employment relationship.

69The workers, and does not have the legal business qualification employers for labor relations disputes, should be the unit or capital contribution to be one of the litigants, pay the relevant fees in accordance with the "labor contract law" article ninety-third.

Does not have the legal business qualification unit of choose and employ persons borrowing others business license, shall also be borrowed from the business license of the party as the party, was borrowed from the business license shall bear supplementary liability.

70Production management, link linked to other units in violation of laws and regulations against the name of the worker legitimate rights and interests, anchored in its own name recruit workers, it does not have the qualification of employment, have affiliated person liable, the affiliated person shall bear supplementary liability; it has the qualification of employment, the affiliated person does not undertake the responsibility.

It is linked to the name recruit workers, the affiliated person failed to provide evidence to prove the facts have been raised against and will link to inform the laborers, it does not have the qualification of employment, by the affiliated person responsibility; it has the qualification of employment, by hanging on to take responsibility, the affiliated person bear the supplement liability.

71In the non full time employment, form, laborer can with people in different units at the same time, the establishment of labor relations. But after the performance of the labor contract shall not affect the first labor contracts.

72During the period of performance, fixed term labor contract, a party without the consent of the other party, the original labor contract unilaterally changed to non fixed term labor contract, does not support.

 

Eight, the payment of wages

73, employing units in accordance with the "labor law" article forty-fourth shall be paid to the employee remuneration for the extended working hours, workers overtime wage base calculation shall be the normal working hours of wages, agreed by the employer and employee bonuses, allowances, subsidies and other projects do not belong to the normal working hours, wages, from its agreement. Unless agreed normal working hours, wages below the local minimum wage standard.

The two sides in the labor contract the plan hair overtime wage base salary standard or in the table we can see that plan hair overtime wage base standard, and the employer is in accordance with the standard gauge the workers overtime pay, and then make the payroll, the wages sheet also the laborers signature confirmation. In this case, as long as the two sides agreed not less than the minimum wage standard, can be identified both sides have agreed to the plan hair overtime wage base standard is the base number of overtime wages. If the employer according to the standard gauge to the wages of workers in accordance with the law to work overtime wage standard, that the employer has been fully paid overtime wages.

74, workers and employers to sign a labor contract agreed to pay a clear indication of "contains the overtime wages", "salary" system or is not agreed in writing the actual payment of salaries are included in overtime, but the employer has evidence that has been paid wages include the normal working hours of wages and overtime wages, when salary: hourly workers=The agreed wage / (21.75Day *8Hours+Included in the wage agreed in peacetime overtime hours *150%+Included in the wage agreed in the rest day overtime hours *200%+Included in the wage agreed in the statutory holiday overtime hours *300%).

Such as hourly workers according to the calculated is lower than the legal minimum wage, the agreement is invalid. The wages paid to labourers shall take the minimum wage standards for basic wages, overtime in excess of the statutory working hours, overtime pay is calculated using the minimum wage standard prescribed by law standard.

75Such as, the worker and the employer agreed to pay in royalty payments business after, this Agreement shall be deemed to be valid. The staff request the commission business, must be agreed conditions for success to get support.

Such as employee turnover, business royalty payment cycle in a month, the employer shall pay immediately; commission business agreed to pay in the payments after, the employer may pay in the conditions for success.

76, the employer shall more than one month but less than one year are not signed labor contracts with workers, the employer shall be the next day from the date of employment at the end of a month to pay two times the wage to the two sides signed the labor contract before the date. But the employer had enough evidence to prove that the reasons for not signing labor contract workers in its own completely, no fault, the employer does not have to pay two times the wage.

The expiration date of the labor contract, workers continue to unit of choose and employ persons, the employer for more than one month but less than one year are not signed labor contracts with workers in the labor contract expiration date, referring to the arrears processing.

77, both sides agreed piecework wage system, but the existing evidence can not be identified quota normal working hours, according to the worker's wages, working hours and the statutory overtime multiples calculated hourly wage not lower than the minimum wage standard, you can identify the employer shall pay wages have been included in the overtime wages.

Nine, the economic compensation for termination of labor contract

78, the employer prior to the implementation of rules and regulations in the "labor contract law", although 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.

The implementation of "labor contract law", the employing units to make changes directly related to the interests of workers, the rules and regulations or major issues, not through the "labor contract law" fourth paragraph second of the democratic process, in principle cannot be used as labor management unit basis. But regulations or major issues of content is not in violation of laws, administrative regulations and policies and regulations, there is no obviously unreasonable situation, and has public to workers or inform the workers, no objection, as labor arbitration and court referee basis..

79, "labor contract law" fourth paragraph second of the "equal consultation" mainly refers to the procedural requirements, if equal negotiation could not reach an agreement, the final decision on the employer. If the provisions of the regulations of violation of laws and regulations, the damage to the workers, workers can be based on "labor contract law" article eightieth to seek relief.

80, workers thirty days in advance written notice to the employing unit, can remove labor contract, the employer shall not exclude or limit workers to specifically agreed rescission. But because the worker is not thirty days in advance notice to terminate the labor contract and the damage caused to the employer, the employee shall pay.

81, the employer illegally dissolves or terminates the labor contract, should be in accordance with the "labor contract law" eighty-seventh and "labor contract law" Implementation Regulations of article twenty-fifth of the payment of compensation. But workers and employers are not ahead of thirty days notice of termination of labor contract requests an additional payment of one month's wages, not support.

82, the employer in the labor contract before the expiration of the term, inform the workers do not go to work, but the normal payment of wages of workers to the labor contract, as the employer advance notice to workers after the expiration of the contract to terminate the labor contract, should be allowed to.

83The workers in the arbitration, require the employer to pay economic compensation, in the lawsuit changed to continue to carry out the labor contract, or in the arbitration to require the employer to continue to fulfill the labor contract, in the lawsuit changed to require the employer to pay economic compensation, should not be allowed to.

84, within 1 month of employee, employer and employee will sign labor contract matters if they fail to reach an agreement, the employer requests to terminate the labor relationship, no need to pay economic compensation, but shall pay labor remuneration in accordance with the actual work time to the laborer.

From the date of employment more than one month but less than one year, the employer has the enough evidence to prove that the reason the signing of a written labor contract with the laborer fails to completely within the workers, and the employer has no fault, the employer requests to terminate the labor relationship, shall pay economic compensation.

A full year from the date of employment, the employer fails to conclude a written labor contract with the laborer, as the day of the date of use of labor for a year already and workers without a fixed term labor contract, and the laborer shall immediately to the written labor contract.

The labor contract expires, the workers continue to work on the employer, the employer fails to conclude a written labor contract with the laborer, treatment with reference to the provisions of.

85, the employing units in the administrative area of Shenzhen City, the relocation of the workers, the termination of employment contracts and require the employer to pay economic compensation have no legal basis, no support.

The employer by the Shenzhen city administrative region within the administrative area of Shenzhen city outside the relocation, according to the "labor contract law" article fortieth (three) of the Convention, to pay economic compensation to the laborer requests, support.

86The employing unit operators, abandoned factory escape, One's whereabouts is a mystery., stop production lead to labor contract cannot be fulfilled, in addition to comply with the "labor contract law" article forty-fourth (four), (five) the provisions of the circumstances, the employee proposes economic compensation request, does not support.

87The workers, in accordance with the "labor contract law" article thirty-eighth, the Supreme People's court "on hearing the law applicable to a number of Labor Dispute Cases Interpretation" or "Fifteenth special economic zones in Shenzhen labor contract regulations" article twenty-fifth (two) (three) (four), "service workers in Shenzhen Special Economic Zone Regulations" article twenty-second (two) (three) (four) shall terminate the labor contract, the employer shall pay the economic compensation to workers. But workers at the same time requirements in accordance with "economic compensation" breach and termination of labor contract stipulates that the tenth request50%Additional economic compensation, not support.

The employer has the actual situation (such as default, deduction of workers wages), but workers to "low salary, pressure big; in the home occupied; cause physical discomfort" as an excuse to resign, and later to the employer in the case of forcing him to resign on grounds to require the employer to pay economic compensation, does not support.

The workers on the basis of "labor contract law" in thirty-eighth the first paragraph terminate labor contract, the employing units should be informed in advance. The worker without prior notice, and causes losses to the employing unit, it shall bear the liability for compensation, but the employing unit shall pay economic compensation.

88, both sides agreed to terminate the labor contract, the employer compensation paid to workers or the default standard and legal standard of compensation for different, shall be deemed void.

89, between the employers and workers in the labor contract expires, shall issue a "Severance compensation" by the employer to fulfill every contract, or the employer in the contract termination compensation, after the two sides is still the continuation of the labor relationship, the employer shall pay economic compensation to workers, should be with its continuous working time of plan hair, but the payment has been received shall be deducted.

90The workers, the employer caused by loss in the performance of the labor contract process, of one-time compensation for workers in the dissolution of the labor contract by the employer, and should be supported, but the amount of compensation by the people's court according to the degree of the fault, the size of the loss caused by the specific conditions of appropriate for determining.

91, the employer by the "bottom out" or "competition" and other forms of unilateral termination of labor contract with the laborer in the term of the contract, illegal act.

92, the change of name, legal representative, the main person in charge or investor, do not affect the performance of the labor contract, laborer working life should be continuous calculation. Because of the above reasons employee requests to terminate the labor contract by the employer (investors) to pay economic compensation, not support.

94, the employer fails to pay social insurance premiums for the employee, the employee shall pay the employer shall, one month employers are not in labor requirements date in accordance with the regulations to pay, the laborer shall have the right to terminate the labor contract, the employer shall pay the economic compensation, but the economic compensation life should pay2008Years1Month1Calculation date.

95To 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 cases "explain" the law applicable to a number of problems in labor dispute cases prescribed in article fifteenth, shall not support.

The implementation of "labor contract law", the employee by the employer fails to pay labor remuneration on time and in full in the grounds, request to terminate the labor contract and require the use of units to pay economic compensation, it shall be supported.

The workers requested overtime wage differentials contains "prior to the implementation of labor contract law" and the implementation of the time, in the economic compensation of workers on whether to support the request, piecewise adopt different standards and treatment principle.

96"The Supreme People's court, several issues concerning labor dispute case applicable legal interpretation" of article fifteenth (four) of the "refused to pay" refers to the laborer proposes to pay overtime wages request to the employer, and the employer to employer clearly; or refused to pay.

97The employer is delayed, the payment of wages, but have been issued before leaving to workers, workers wages in arrears the employer that offered to resign, and requires employers to pay arrears of wages25%Economic compensation and economic compensation, not support.

98, the workers reached the statutory retirement age, to terminate the labor contract, the employing units do not pay economic compensation.

99, employers of illegal dissolution or termination of labor contract, workers are not required to continue to fulfill the labor contract or labor contract can no longer continue to perform, the employer should according to "labor contract law" to pay compensation to the employee, but without additional pay economic compensation. The calculation of compensation period from the date of employment of continuous calculation.

100In the calculation of the average wage of workers, termination of labor contract during the first twelve months, the salary includes the normal working hours of wages, including overtime wages of workers. Year-end bonus workers have received or year-end bonuses, included in the wage base should be based on the twelve month of the year average.

The employer was not within one month to sign labor contract shall be two times the monthly payment of wages to the workers at the date of employment, which pay doubled wages are not included in the economic compensation or damages calculation base.

 

Ten, other substantive issues

101The employer shall, six days a week, weekly working time is not more than40Hours, shall be permitted. This system belongs to the standard working hour system.

102After the occurrence of, labor disputes, workers and employers have reached a settlement agreement disputes, should normally be identified the validity of the agreement. But the individual is really unfair, the workers to apply for cancellation within the statutory time limit, shall support.

103, employers of illegal discharge and "three period" of women workers in the labor contract, such as the female worker demands continued performance of the labor contract, it shall revoke the employer terminate the labor contract, the two sides continue to fulfill the labor contract. Causing loss of wage income of workers, the employer must pay wages. If the process term labor contract expires in the case, should be in the revocation of the employer terminates the labor contract decisions, that the parties to the labor contract is terminated, and any wages and economic compensation is paid by the employer to the labor contract is terminated on the date of.

As to female employees is required to carry out performance of the labor contract or labor contract has not identified, should the parties to the labor contract termination, and in accordance with the "labor contract law" article forty-eighth and article eighty-seventh, the employer shall pay damages.

104, female worker is in "three" for "labor contract law" article thirty-eighth, the Supreme People's court "provisions" several issues concerning labor dispute case applicable legal provisions of article fifteenth, the forced to terminate the labor contract, in addition to the requirements of the economic compensation, but also require the employer to pay wages to the "three" period after the lifting of the labor contract, the "three stage" wage, not support.

105, "three stage" female staff and workers during their pregnancy wages can refer to "Shenzhen special economic zone enterprise salary management Interim Provisions" the provisions of article fifty-fourth of downtime allowance; wages during maternity leave, the salary issue as before; Guangdong Province in lactation wage "female worker labor protection implementation method" in accordance with the provisions of not less than seventy-five percent of their standard wage grant wage.

106For workers, employers deposit, deposit, workers in addition to the requirements to return the deposit, deposit, also require the employer to pay the deposit, the deposit of interest during the occupation, request to laborers can loan interest, according to the people's bank interest rates over the same period to support.

107Malicious evasion, unit of choose and employ persons "following behavior of labor contract law" in article fourteenth, should be recognized as invalid behavior, working life and times to sign a fixed term labor contract shall be calculated continuously:

(1The workers ") for seniority zero forcing workers to resign," re signed labor contracts;

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

(3) by illegal labor dispatch;

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

The implementation of "labor contract law", the employing units in accordance with the relevant provisions of the main national and provincial auxiliary exit and placement of surplus staff and close the isolation, restructuring enterprises, for the labor contract procedures and shall pay the economic compensation, work life is not continuous calculation.

108, agreed by the employer and employee competition restriction, it shall pay economic compensation to workers during the term of the competition restriction, the employer fails to pay economic compensation to the laborer in accordance with the agreed, employer violates the contract date may require the employer to pay economic compensation is not paid within thirty days, and to continue to perform the agreement; workers does not require the lump sum payment within thirty days, may notify the employer to terminate the competition restriction agreement.

The employing units in the competition restriction of liquidated damages are higher than the actual loss provisions stipulated in a labor dispute arbitration commission, the court, according to the request of the workers adjust the amount of penalty.

109The past, the handling of labor disputes related meetings, review, guidance is no longer applicable. Laws and regulations, judicial interpretation, the superior court or the court of new regulations, according to the new regulations.

110, the opinion by the court's judicial committee is responsible for the interpretation of.

111, the views from the implementation date of issuance. After the implementation of the views of pending cases, the applicability of this opinion.

112After the implementation of the views, and the introduction of new laws, regulations or judicial interpretation of the conflict, by the relevant departments proposed amendments submitted to the judicial committee of the court to revise.