Minutes of the Seminar on Labor Dispute Cases

Minutes of the Seminar on Labor Dispute Cases in Guangzhou

In order to handle labor dispute cases in a timely and fair manner and further unify the adjudication standards of labor dispute cases in our city, The Guangzhou Labor Dispute Arbitration Commission and the Guangzhou Intermediate People's Court jointly held a seminar on labor dispute cases from XX to XX, XXXX. The person in charge of the Municipal Labor Dispute Arbitration Commission, the president in charge of the Municipal Intermediate People's Court, the person in charge of the two-level labor dispute arbitration commission office, and the person in charge of the first civil court of the two-level people's court attended the meeting. Participants discussed the hot and difficult issues encountered in the handling of labor dispute cases, and reached a * * * understanding on the handling of some difficult issues. The summary is as follows:

1. Procedural issues

1. The arbitration award made by the labor dispute arbitration commission should be clearly final or non-final. If the labor dispute arbitration commission determines the matters that belong to the final award as non-final, the employer refuses to accept the arbitration award and should bring a lawsuit to the grassroots people's court in accordance with the guidelines of the arbitration award. If the employer applies to the intermediate people's court for cancellation on the grounds that the arbitral award should be final, the intermediate people's court will not accept it.

2. after the employee refuses to accept the final award and the employer's application to the intermediate people's court to cancel the arbitration award is rejected, the people's court shall examine the employer's defense, which is not limited to the circumstances stipulated in Article 49 of the Labor Dispute Mediation and Arbitration Law.

3. according to article 13 of the Supreme People's Court's interpretation on several issues concerning the application of laws in the trial of labor dispute cases (iii), whether the arbitral award is final or not should be based on the amount of the arbitral award, not on the amount applied by the workers. If the arbitration award involves several items, it shall be determined according to the items of the award, not according to the total amount of arbitration. Matters that do not exceed the local minimum wage standard for 12 months are final decisions. The same arbitral award contains both final and non-final awards, which shall be treated as non-final.

4. The commission with the nature of labor remuneration belongs to the final award stipulated in Item 1 of Article 47 of the Labor Dispute Mediation and Arbitration Law. Double wages for not signing a labor contract are compensation with punitive function in nature, which belongs to the final ruling stipulated in Item 1 of Article 47 of the Labor Dispute Mediation and Arbitration Law.

5. If an employing unit that does not have the legal business qualification borrows another person's business license to operate by means of affiliation, etc., and there is a labor dispute with the laborer, it shall add the business license lender as the party upon the application of the party concerned or ex officio.

6. If the employer and the employee reach an agreement on the transfer of socialized management after retirement, and the parties apply to the people's court for judicial confirmation because it involves the rights and obligations of outsiders, the people's court will not accept it.

7. If the business term of the employing unit expires and it continues to operate without annual review, it should not be directly identified as illegal operation in the judgment document. If the laborer's application for arbitration meets the acceptance conditions, it shall be accepted.

2. Work-related injuries

8. If a work-related injury is identified but not identified as a work-related injury, the laborer will sue for compensation for the work-related injury, and the court should take the initiative to explain the litigation risks and inform the laborer that he should change his litigation request and sue as a general personal injury compensation case. If a worker insists on suing on the grounds of compensation for work-related injuries, he shall reject his claim by judgment, and may inform another case to claim compensation for personal injuries.

9. If a worker who has reached retirement age is injured in the course of work and is recognized as a work-related injury by the labor administrative department, the people's court may refer to the Regulations on Work-related Injury Insurance.

1. If the contractor borrows the employer's business license and operates in the employer's name, and fails to participate in work-related injury insurance during the operation period, the employer and the contractor shall be jointly and severally liable for compensation.

11. It is a labor dispute that workers demand the employer to compensate for the difference in compensation for work-related injuries based on the actual total wages and the paid wages on the grounds that the employer has not paid the work-related injury insurance fees based on the actual total wages, which should be accepted and supported.

12. The employer has taken out work-related injury insurance for the workers. After the workers are identified as work-related injuries, the employer fails to declare the work-related injury insurance benefits that should be paid by the work-related injury insurance fund to the social insurance agency. If the workers ask the employer to declare the work-related injury insurance benefits for them, it should be supported. If the laborer does not require the employer to declare, but insists that the employer directly pay the industrial injury insurance benefits that should be paid by the industrial injury insurance fund, it will not be supported.

13. When a worker is injured by a vehicle of the employer, and there is a coincidence of work-related injury and infringement claims, before the work-related injury is recognized, the worker sues the employer for compensation on the grounds of infringement, and the people's court shall exercise the right of interpretation to the worker according to the provisions of Article 12 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Personal Injury Compensation Cases, and inform him to handle it according to the provisions of the Regulations on Work-related Injury Insurance.

14. For the persons listed in Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (III), if the original employer continues to pay social security for them, the new employer cannot insure them, and such persons have a work-related injury dispute, the responsibilities shall be determined according to the work-related injury certificate made by the labor administrative department.

in the event of a dispute over the treatment of non-work-related death, if the employer as the respondent can prove that the laborer has multiple labor relations, multiple employers shall bear the responsibility for the treatment of non-work-related death. If it cannot be proved by evidence, the employer as the respondent shall bear the responsibility according to law.

iii. conclusion and effectiveness of labor contracts

15. if two consecutive fixed-term labor contracts are concluded, and both parties agree to renew the labor contracts, and the laborer proposes to conclude an open-ended labor contract, he shall conclude an open-ended labor contract.

16. if the employer and the employee sign an internal retirement agreement, and the agreement is not invalid or revocable, it shall be deemed as valid. If the retired workers request to reissue the relevant expenses according to the same treatment as the on-the-job workers, they will not be supported.

17. The labor contract signed between the employer and the employee shall be deemed as an open-ended labor contract unless the termination time of the labor contract is clearly stipulated, except for the labor contract with the completion of certain tasks as the term.

18. The validity of the agreement reached between the laborer and the employer shall be reviewed in accordance with the provisions of Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (III).

if the employee requests to confirm that the agreement is invalid or to cancel the agreement just because the employer has not clearly informed the employee of the legal compensation standard in the agreement, it will not be supported.

19. According to the provisions of the Organic Law of Villagers' Committees of the People's Republic of China and the Organic Law of Residents' Committees of the People's Republic of China, members of villagers' committees and residents' committees (directors, deputy directors and members) are elected according to law, and they do not constitute labor legal relations or personnel legal relations with the organizations.

2. If workers over the retirement age continue to provide labor services, or if the employer employs workers over the retirement age, the employment relationship between the two parties can be handled according to the labor (employment) relationship.

IV. Economic compensation, compensation, double salary and termination of labor contract

21. If the employer fails to conclude a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee double salary every month. The specific calculation method is as follows: 1. For the dual fixed employment mode, the double salary difference for one month can be calculated according to the monthly fixed salary; If the salary is less than one month, the salary can be fixed monthly? Fixed working days per month? Calculation of the actual working days in the days when the written labor contract is not signed; 2. For the general employment mode, the double wage difference for one month is calculated according to the normal wage (that is, the standard wage) of the laborer under the standard working hours; If it is less than one month, it can be paid according to the above-mentioned monthly standard salary? 21.75 days? Calculation of actual working days in the days when no written labor contract is signed.

22. According to Article 93 of the Labor Contract Law, if an employing unit that does not have the legal business qualification violates the law and the employee has already paid the labor, the unit or its investor shall pay the employee labor remuneration, economic compensation and compensation, among which? Labor remuneration, economic compensation, compensation? In a narrow sense, it does not include other items such as double wage difference without a written labor contract.

23. If the employee resigns, the actual reasons for the employee's resignation at that time should be taken as the basis for determining the facts of the case. During the performance of the labor contract, the employee resigns on the grounds that he does not belong to the circumstances stipulated in Article 38 of the Labor Contract Law, and at the arbitration or litigation stage, he claims that the employer has the aforementioned legal circumstances to force him to resign and requests the employer to pay economic compensation, which will not be supported.

24. If the employer arranges the laborer to work and the laborer actually goes to work during the period of work-related injury suspension with pay, it shall be regarded as the laborer's own punishment of labor rights. If the laborer demands to pay double wages again, it will not be supported.

25. An employee should sign an open-ended labor contract according to the Labor Contract Law, but the employee has signed a fixed-term labor contract with the employer, and there is no evidence to prove that there is fraud, coercion, taking advantage of others' danger, etc., which can be considered as stipulated in Article 11 of the Regulations for the Implementation of the Labor Contract Law? What is the consensus between the laborer and the employer? .

26. The problem of double wages that are not renewed after the expiration of the labor contract should be handled in four situations: (1) If both parties have not renewed the contract after the expiration of the labor contract, and the original contract has not been agreed to be automatically renewed upon expiration, the employer shall pay double wages, except that the employer can prove that the responsibility for not renewing the contract lies with the employee. (2) If the labor contract is automatically renewed upon expiration, it can be deemed that the contract has been renewed, and the employer does not need to pay double wages. (3) the labor contract was not renewed in time after the expiration, and the labor contract was renewed after a period of time. Gap period? , can be divided into specific situations: if? Gap period? If it does not exceed one month, it can be regarded as a reasonable negotiation period, and the employer does not need to pay double wages; What if? Gap period? If it is too long and exceeds one month, the employer shall pay double wages, except that the employer can prove that the responsibility for not renewing the contract lies with the employee. (4) Employers and workers? Backdated? Where a labor contract is signed, it can be regarded as the employee's confirmation that the term of the labor contract has covered the period when the contract has not been signed, which belongs to the employee's ratification and the employer does not need to pay? Backdated? Double salary during the period.

27. If the employer fails to conclude a written labor contract with the employee for one year from the date of employment, it is deemed that an open-ended labor contract has been concluded, and the employer does not need to pay double wages.

28. If a worker suffers from work-related injuries and asks the employer to pay double wages without signing a written labor contract during the period of suspension with pay, it shall be handled according to different situations: if a worker suffers from work-related injuries and has not signed a labor contract for more than one month, and the fault lies with the employer, the employer shall pay double wages including the period of suspension with pay;

if a worker suffers from work-related injuries less than one month after joining the company, and has not yet signed a labor contract, the main contents of the labor contract cannot be determined, which leads to the objective impossibility of signing the labor contract. The time limit for signing the labor contract shall be postponed until the end of the shutdown with pay. If the worker claims that the double wage difference of the written labor contract is not signed during the shutdown with pay, it will not be supported.

29. If the probation period agreed between the employer and the employee violates the legal provisions and has actually been fulfilled, the employer shall pay compensation to the employee in accordance with Article 83 of the Labor Contract Law, and there is no need to pay the wage difference beyond the legal probation period.

3. during the probation period of the labor contract, if the employer has clearly informed the employment conditions when recruiting employees and there is evidence to prove that the workers do not meet the relevant conditions, the labor contract can be dissolved in accordance with the provisions of Item (1) of Article 39 of the Labor Contract Law.

31. If the employer terminates or dissolves the labor contract within one month after the expiration of the labor contract, it can be regarded as the termination of the labor relationship.

32. if the employer decides to dissolve the labor contract in advance, the calculation period of the economic compensation paid by the employer shall be counted from the employee's entry date according to the third paragraph of Article 97 of the Labor Contract Law and referring to Article 8 of the Measures for Economic Compensation for Breach and Termination of Labor Contract.

33. When the employer terminates the labor contract, it is not enough to conclude that the employer illegally terminates the labor contract if it fails to check the workers engaged in occupational hazards before leaving the post. If it is later confirmed that the laborer really suffers from occupational diseases, it can be dealt with according to the relevant laws and regulations on occupational diseases.

34. If a worker finds that he is pregnant after dissolving the labor contract in accordance with Article 38 of the Labor Contract Law, and then requests to continue to perform the labor contract, it will not be supported.

35. In the labor dispatch, if the employee does not meet the conditions stipulated in Paragraph 2 of Article 65 of the Labor Contract Law, and the employing unit returns the employee to the labor dispatch unit, the labor dispatch unit shall pay the relevant labor benefits according to the labor contract. If the labor dispatch unit unilaterally terminates the labor relationship, it shall bear the legal responsibility for illegally terminating the labor contract, and the employing unit shall bear joint liability.

V. Loss of social insurance benefits

36. If a worker demands compensation from the employer on the grounds that the employer has not gone through the social insurance formalities for him and the social insurance agency cannot make up the losses, it shall be accepted. If the specific amount of loss that the laborer cannot enjoy social insurance benefits is unclear, the parties may apply to the social insurance agency and relevant units for approval; The labor dispute arbitration commission and the people's court may also entrust social insurance agencies and relevant units to verify the relevant expenses if they think it is necessary.

37. If the employer fails to participate in unemployment insurance for the employee or stops paying unemployment insurance premium without authorization, and the employee really meets the conditions of enjoying unemployment insurance benefits after examination, the employer shall pay a one-time compensation according to the provisions of Article 41 of the Regulations on Unemployment Insurance in Guangdong Province, which is twice the total amount of unemployment insurance benefits or one-time living allowance that the employee should enjoy but fails to enjoy.

VI. Wage issues

38. For the days of paid annual leave, refer to Article 5 of Opinions on Implementing the System of Paid Annual Leave for Employees in Guangdong Enterprises (Guangdong Labor and Social Security Bureau [29] No.7)? When calculating the annual leave days of employees in accordance with the provisions of accumulated working hours, the employer shall take the employee's leave.