The current labour dispute management system in the country is governed by the regulations on the handling of labour disputes in enterprises (hereinafter referred to as the regulations) issued by the state council in 1993 and the labour code adopted by the standing committee of the national people's congress in 1994. The procedure for handling labour disputes is usually outlined as “one to two trials”. The labour dispute mediation arbitration act, which will be in force on 1 may this year, “surges” local processes in response to outstanding problems in the current system, while maintaining the basic procedures of “one to two trials”. As a procedural law dealing exclusively with labour disputes, new changes should be of great interest to workers。
Change one: broadening the scope of cases and addressing the “no way to complain” of workers
In practice, the fact that some labour disputes are outside the scope of the case often leaves workers without any recourse or benefit. In view of this, article 2 of the act provides for the scope of the case: “the following labour disputes between employers and workers in the people's republic of china shall be governed by this law: (i) disputes arising out of the confirmation of labour relations; (ii) disputes arising out of the conclusion, performance, modification, termination and termination of labour contracts; (iii) disputes arising out of the removal, dismissal and resignation, separation from service; (iv) disputes arising out of working hours, rest and rest leave, social insurance, benefits, training and labour protection; (v) disputes arising out of remuneration for work, medical expenses for work injury, financial compensation or compensation; (vi) other labour disputes arising out of laws or regulations.”
Compared to the regulations, the scope of the cases was increased to “disputes arising out of the confirmation of labour relations”, disputes arising out of “working hours, rest breaks” and disputes arising out of “medical costs, financial compensation or compensation for injury at work”. These are the main circumstances that currently give rise to labour disputes and are of general concern to workers, bringing them within the scope of their cases and giving them a basis for complaints. For example, “confirmation of disputes over labour relations” may include dispatch workers, part-time students, personal agents, outsourcing of posts, special labour relations, etc. In addition, article 52 provides that: “in the event of a labour dispute between a staff member employed in an establishment and his or her own, the labour dispute shall be carried out in accordance with this law, and in accordance with the provisions of laws, administrative regulations or otherwise provided by the state council.” this provision addresses the lack of recourse to labour disputes faced by employees employed in establishments。
Change ii: provides for inversion of proof to help workers cross the “threshold” of proof
The worker must first prove that he or she has a labour relationship with his or her employer, i. E. That he or she has a labour relationship. In reality, however, employers often do not provide evidence, such as labour contracts, worker lists, etc., and it is difficult for workers to prove the existence of a labour relationship, with many workers falling below the first “threshold”. In order to rationalize the allocation of the burden of proof, the act provides for the reversal of evidence, which will help workers to cross the first “threshold”. Article 6 of the act provides that: “in the event of a labour dispute, the person concerned shall be liable to provide evidence in respect of his claims. Evidence relating to the subject matter of the dispute is in the hands of the employer, who shall provide it; and the employer shall bear adverse consequences if it does not provide it”. At the same time, article 39, paragraph 2, provides that: “the worker is unable to provide evidence relating to the arbitration request, which is managed by the employer, and the arbitral tribunal may require the employer to do so within a specified period of time. The employer shall bear adverse consequences if it does not provide them within the specified period.”
These inverted evidentiary requirements, which are specifically designed to prevent employers from having evidence or not, will effectively deter malicious acts by employers. It also presupposes adverse consequences for the employer in the event of loss, damage, etc. Of evidence held by the employer。
Change iii: broadening the channels of conciliation and special mediation agreements may apply for payment orders
The emphasis on conciliation is a fundamental principle in the handling of labour disputes. Article 3 of the act states: “the settlement of labour disputes shall, in accordance with the law, protect the legitimate rights and interests of the persons concerned in accordance with the principles of legality, impartiality, promptness and conciliation.” with a view to broadening the channels of conciliation, article 10 provides that: “in the event of a labour dispute, the parties may apply to the following mediation organizations for conciliation: (i) an enterprise labour dispute mediation committee; (ii) a grass-roots people's mediation organization established by law; and (iii) an organization with a labour dispute mediation function established in towns and streets”
On the basis of the retention of the business commission for the mediation of labour disputes, mediation channels have increased the number of “basic people's mediation organizations” established by the judiciary and “organizations with labour dispute mediation functions in towns and streets”. The latter refers to regional industrial labour dispute mediation organizations, a new type of labour dispute mediation organization that has emerged in recent years and has worked well, this time in the mediation arbitration act, whose legal status has been confirmed. The widening of mediation channels can make effective use of social resources and compensate for the lack of mediation organizations in a large number of non-public enterprises。
At the same time, there has been some progress in the regulation of the validity of conciliation agreements. Article 11 of the regulations provides that the conciliation agreement “shall be consciously performed by the parties”. The judicial interpretation (ii) of the supreme people's court on the adjudication of labour disputes stipulates that conciliation agreements concluded by the parties with the content of labour rights and obligations shall be binding on the labour contract and may serve as the basis for the decision of the people's court. Only agreements concerning remuneration for work may be brought directly by the worker if the employer fails to comply. The act would be more binding and enforceable on the effect of conciliation agreements. Article 14, paragraph 2, provides that: “an agreement to conciliate shall be signed or stamped by the parties and shall enter into force upon signature by the conciliator and seal of the conciliation organization and shall be binding on the parties and shall be performed by them.” a special settlement agreement may also apply for a payment order, article 16 of which states that: “if the employer fails to comply with a settlement agreement for the purpose of payment of arrears in payment of wages, medical expenses, financial compensation or compensation, the worker may, in accordance with the law, apply to the people's court for payment by means of a settlement agreement. The people's court shall issue payment orders in accordance with the law. “conciliation agreements have been made more effective, enabling grass-roots mediation organizations to play a role and leading parties to settle disputes through mediation。
Change four: arbitration governs the place of performance of contracts and facilitates parties ' recourse to arbitration
In accordance with articles 17 and 18 of the regulations, labour arbitration is generally handled by an arbitration committee for labour disputes in the employer's place of residence, or by an arbitration committee in the place of the employer's place of payment if the enterprise and the employee in which the labour dispute occurred were not in the same territory as the arbitration committee. In practice, it is often the case that the employer's registered place of residence is different from the place in which he or she operates, that the employer's place of residence is different from the place in which the labour contract is performed, and that when the employer's place of residence is different from the place in which the worker's wage relationship is situated, when these “geographical differences” span different administrative areas, the question of jurisdiction is involved and, in some cases, the “complaints” and “suggests” phenomenon, which often cause workers to travel in these different geographical areas, significantly increasing the cost of defending their rights。
In order to resolve this problem, article 21 of the act states: “the labour disputes arbitration commission shall be responsible for regulating labour disputes arising in the region. Labour disputes are governed by an arbitration committee for labour disputes in the place where the labour contract is performed or where the employer is located. Where the parties apply for arbitration to the labour disputes arbitration commission at the place of performance of the labour contract and the place of employment, respectively, they are governed by the labour disputes arbitration commission at the place of performance of the labour contract.”
This provision respects the right of choice of the parties, but gives priority to the place of performance of the labour contract in the event of a conflict between the employer's place of employment and the place of performance of the labour contract, which not only facilitates arbitration but also facilitates the identification of the facts of the case and prompt adjudication。
Change five: extension of the period of limitation for arbitration so that workers do not miss the time
Article 82 of the labour code states: “the party making the request for arbitration shall submit a written application to the labour disputes arbitration board within sixty days from the date of the labour dispute. Arbitral awards should normally be made within 60 days of receipt of the application for arbitration. If there is no objection to the arbitral award, the party must perform”. “on the date of the labour dispute”, article 85 of the ministry of labour's opinion on certain issues relating to the implementation and enforcement of the labour law of the people's republic of china is interpreted as “meaning the day the person knew or should have known that his or her rights had been violated”. The labour code set the deadline for applications for arbitration at 60 days, and its legislation was originally intended to settle labour disputes as soon as possible, but in practice, often because the time limit is too short, some workers lose access to legal remedies because they have exceeded the time limit. Many workers miss the deadline for arbitration and are subjected to unpaid labour payments only when they are caught in the water。
With regard to the special nature of labour relations, the act extends the period of limitation for arbitration from “60 days” to “one year” and makes special provisions for interruptions, suspensions and exceptional circumstances, depending on the reality. Article 27 states: “the limitation period for applications for arbitration in labour disputes shall be one year. The period of limitation for arbitration shall run from the date on which the parties knew or should have known that their rights had been infringed.” if “it is interrupted by one party claiming a right in the other party, or by a claim for relief of the right in question or by the other party's agreement to perform the obligation”. The period of limitation for arbitration shall be recalculated from the moment of interruption.” if, “by force majeure or otherwise justified, the parties are unable to apply for arbitration during the period provided for in paragraph 1 of this article, the limitation period for arbitration is suspended. The period of limitation for arbitration shall continue to run from the date on which the reasons for the stay have been eliminated.” “in the event of a dispute over the payment of labour during the duration of a labour relationship, the worker's application for arbitration shall not be subject to the limitation period provided for in paragraph 1 of this article; however, the termination of a labour relationship shall be submitted within one year from the date of termination of the labour relationship.”
It is clear that these provisions allow workers to “take” more swing time. In particular, disputes concerning remuneration for work may be extended to one year after the termination of the labour relationship, i. E. As long as the worker has not left the employer, the labour relationship continues, regardless of the employer's salary arrears. This prevents the occurrence of workers who “win the case and lose their jobs” and relieves workers of their “back-to-back concerns”, while the provision is also a “tightening curse” on those who are unpaid。
Change vi: reduction in the duration of arbitration proceedings to prevent protracted cases
As provided for in articles 25 and 32 of the present regulations, decisions on admissibility or inadmissibility are taken within seven days of the receipt of the application by the arbitration committee; copies of the application are communicated to the respondent and constituted the arbitral tribunal within seven days of the decision being taken; labour dispute arbitration cases are concluded within sixty days from the date of the constitution of the arbitral tribunal; and the complexity of the case, subject to the approval of the arbitration commission, may be extended, as appropriate, but for a period not exceeding thirty days. On the basis of the rules, the arbitration period is generally 67 days (7+60) from the time of the decision of the arbitral commission to the time of the decision; in complex cases, a maximum of 97 days (7+60+30) may be extended。
According to articles 29 and 43 of the act, within five days of the date on which the parties submit their application to the arbitration commission, the labour disputes arbitration commission shall decide whether or not it is admissible; if the decision is to be heard, it shall end within forty-five days from the date on which the application for arbitration is accepted; if the complexity of the case requires an extension, it may be extended and the parties may be notified in writing, with the approval of the director of the labour disputes arbitration commission, provided that the extension does not exceed fifteen days. As can be seen, from the time of decision of the arbitral commission to the time of the decision, the duration of the arbitral proceedings is generally 45 days; up to 60 days (45 + 15). The duration of arbitration proceedings could be reduced by one third compared to the current provision。
More importantly, article 43 of the act also provides that “if an arbitral award is overdue, the parties may bring the matter of the labour dispute before the people's court”. This requires that arbitration institutions improve their efficiency and prevent protracted cases。
In addition to the above, the act contains a number of new provisions which are innovative and of interest. Article 4 provides that in the event of a labour dispute, the worker may consult with the employer and that “the union or third party may consult with the employer in order to reach a settlement agreement.” this is conducive to enhancing the effectiveness of the agreement. Article 53: “the arbitration of labour disputes is free of charge. The funds of the labour disputes arbitration commission are financially secured.” the financial burden on workers can be reduced directly. Article 22 states that: “in the event of a labour dispute between a labour unit or an employment unit and a worker, the labour unit or labour unit shall be a joint party”. The parties to labour disputes in the case of labour assignments are specified. Article 20, which strictly regulates the conditions of appointment of arbitrators, contributes to strengthening the quality and quality of the arbitration team。
In general, the act makes many new provisions in the areas of shorter cycles, fewer links, more effective and less costly, with the aim of establishing an accessible, fast, efficient and affordable labour dispute management system. It can be said that, following the substantive protection of workers ' rights and interests under the labour contracts act, the standing committee of the national people's congress has developed another important law on the procedural protection of workers ' rights and interests, and that workers should make full use of these new provisions to enhance their ability to defend themselves. (author: chief of the legal oversight service, general legal work department)
