Viewpoint... Labor dispute dispute related points of laws and regulations.

The first paragraph of Article 27 of the the People's Republic of China Law on Mediation and Arbitration of Labor Disputes "The limitation period for applying for arbitration of labor disputes shall be one year. The limitation period for arbitration shall be calculated from the date when the parties know or should have known that their rights have been infringed." Paragraph 4: "In the event of a dispute arising from arrears of labor remuneration during the existence of the labor relationship, the laborer's application for arbitration shall not be subject to the limitation period for arbitration as stipulated in the first paragraph of this article; however, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship."

Article 27, paragraph 2, of the Labor Dispute Mediation and Arbitration Law of the People's Republic of the People's Republic of China, "The limitation of arbitration provided for in the preceding paragraph shall be interrupted when one of the parties claims its rights from the other party, or requests relief from the relevant authorities, or the other party agrees to perform its obligations. From the time of interruption, the limitation of arbitration shall be recalculated."

Article 27, paragraph 3, of the Labor Dispute Mediation and Arbitration Law of the the People's Republic of China of the People's Republic of China, "If, due to force majeure or other justifiable reasons, the parties are unable to apply for arbitration within the period of limitation of arbitration stipulated in the first paragraph of this article, the period of limitation of arbitration shall be suspended. The period of limitation of arbitration shall continue to be calculated from the date when the cause of suspension of limitation of limitation is eliminated."

1. Article 36 of the the People's Republic of China Labor Contract Law "The employer and the employee may terminate the labor contract by consensus." If it is terminated without consensus, it constitutes an illegal termination of the labor contract.

2. If the following conditions are met, the employer may directly terminate the labor contract: Article 39 of the the People's Republic of China Labor Contract Law "If a worker has one of the following circumstances, the employer may terminate the labor contract:

The (I) is proved not to meet the employment conditions during the probation period;

(II) seriously violating the rules and regulations of the employing unit;

(III) serious dereliction of duty, engage in malpractice for selfish ends, and cause great damage to the employing unit;

(IV) laborers simultaneously establish labor relations with other employing units, which has a serious impact on the completion of their work tasks, or the employing units refuse to make corrections;

(V) the circumstances specified in the first paragraph of Article 26 of this Law render the labor contract invalid;

(VI) be investigated for criminal responsibility in accordance with the law."

The above several employers can terminate the labor contract must also meet the relevant conditions and can prove, otherwise it can still constitute illegal termination of the labor contract.

3. If the following conditions are not met, the employer's advance notice termination still constitutes an illegal termination of the labor contract:

Article 40 of the the People's Republic of China Labor Contract Law "Under any of the following circumstances, the employer may terminate the labor contract after notifying the laborer in writing 30 days in advance or paying the laborer an additional month's salary:

If a (I) worker falls ill or is injured not due to work, he cannot take up his original job after the expiration of the prescribed medical treatment period, nor can he take up the job assigned by the employing unit;

(II) labourers are incompetent for the job and are still incompetent for the job after training or job adjustment;

(III) the objective circumstances on which the labor contract was concluded have changed significantly, the labor contract cannot be performed, and the employer and the employee fail to reach an agreement on changing the content of the labor contract after negotiation."

Article 41 of the the People's Republic of China Labor Contract Law "Under any of the following circumstances, if it is necessary to reduce more than 20 employees or less than 20 employees but accounting for more than 10% of the total number of employees of the enterprise, the employing unit shall explain the situation to the trade union or all employees 30 days in advance, and after listening to the opinions of the trade union or employees, the personnel reduction plan may be reported to the labor administrative department, and the personnel may be reduced:

The (I) is reorganized in accordance with the provisions of the Enterprise Bankruptcy Law;

Serious difficulties in (II) production and operation;

(III) enterprises change production, major technological innovation or business mode adjustment, after the change of labor contract, still need to reduce staff;

(IV) other major changes in the objective economic conditions on which the labor contract was concluded, resulting in the inability to perform the labor contract.

When reducing personnel, priority shall be given to retaining the following personnel:

The (I) concludes a long-term fixed-term labor contract with the unit;

The (II) concludes an indefinite labor contract with the unit;

(III) family has no other employed persons and there are elderly or minors in need of support.

If the employing unit reduces the number of personnel in accordance with the provisions of the first paragraph of this article and re-recruits personnel within six months, it shall notify the retrenched personnel and give priority to recruiting the retrenched personnel under the same conditions."

Article 42 of the the People's Republic of China Labor Contract Law "If a worker has any of the following circumstances, the employer shall not terminate the labor contract in accordance with Articles 40 and 41 of the Labor Law:

1, engaged in contact with the hazards of the workers did not carry out the occupational health examination before leaving the post, or suspected occupational disease patients in the diagnosis or medical observation period;

2. Suffering from occupational diseases or work-related injuries in the unit and confirmed to have lost or partially lost the ability to work;

3, sick or non-work-related injuries, within the prescribed medical treatment period;

4, in pregnancy, childbirth, lactation;

5, in the unit for 15 years, and less than 5 years from the legal retirement age;

6. Other circumstances stipulated by laws and administrative regulations.

In order to protect the legitimate rights and interests of workers, the employer shall follow the provisions of Article 40 of the the People's Republic of China Labor contract Law when terminating the labor contract. If the conditions are met, the employer shall notify the worker in writing 30 days in advance. Or pay the worker an additional month's salary, and the employer shall notify the labor union of the reason in advance. If the employer chooses to pay the worker an additional month's salary, it does not need to notify the worker in writing 30 days in advance. If the conditions stipulated in Article 41 are met, the employing unit shall explain the situation to the trade union or all the employees 30 days in advance, and after listening to the opinions of the trade union or the employees, the reduction plan shall be reported to the labor administrative department.

If the employer does not follow the procedures prescribed by law when terminating the labor contract, its behavior also constitutes the illegal termination of the labor contract as stipulated in Article 48 of the the People's Republic of China Labor contract Law, and therefore bears the corresponding legal responsibility.

1. Incompetence is not the reason for the immediate and legal termination of labor relations. Article 40 of the the People's Republic of China Labor Contract Law stipulates that "the employer can terminate the labor contract only if the worker is not competent for the job and is still incompetent after training or adjustment of his post." that is to say, even if he is not competent for the job, he needs to be trained or transferred before termination, otherwise it will still constitute an illegal termination of the labor contract.

2. The concept of incompetent work is different from that of the last elimination. The last elimination seriously damages the rights and interests of workers. During the term of the labor contract, the labor contract is unilaterally terminated through the form of "last elimination" or "competition for employment". The worker can request the employer to continue to perform the labor contract or pay compensation on the grounds that the employer illegally terminates the labor contract.

Article 39 of the the People's Republic of China Labor Contract Law stipulates that if it is proved that it does not meet the employment conditions during the probation period, the labor contract can be terminated, but certain conditions need to be met, that is, there must be proof that it does not meet the employment conditions, such as: agreeing to pass the probation period and informing the employment conditions for passing the probation period; The basis and results of the assessment and assessment; The performance that does not meet the probation period standard must be supported by evidence, the evaluation form can only be canceled after the employee's signature and approval, and it is not optional. And to terminate the labor contract on the grounds that the probation period does not meet the employment conditions, the labor contract must be terminated during the probation period, and cannot be terminated after the probation period expires, otherwise it is illegal to terminate. At the same time, Article 21 of the the People's Republic of China Labor Contract Law stipulates "During the probation period, the employer shall not terminate the labor contract except for the circumstances specified in Article 39 and Article 40, paragraphs 1 and 2 of this law. If the employer terminates the labor contract during the probation period, it shall explain the reasons to the laborer."

Article 82 of the "the People's Republic of China Labor Contract Law" "If the employer fails to conclude a written labor contract with the worker for more than one month but less than one year from the date of employment, it shall pay the worker twice the monthly salary.

If the employer violates the provisions of this Law and fails to conclude an open-ended labor contract with the laborer, it shall pay the laborer twice the monthly salary from the date when the open-ended labor contract should be concluded."

It is a state of fact that the employer and the employee have not signed a written labor contract. The provisions of the Labor Contract Law on the penalty of double wages are a punishment for the illegal behavior of the employer, which is conducive to promoting the two parties to sign labor contracts in accordance with the law and clarify the rights and obligations of both parties. Labor rights and obligations, maintain the order of labor relations.

1. The economic compensation for the termination of the labor contract refers to the economic compensation that the employer shall pay to the laborer in accordance with the statutory standards under the statutory conditions after the termination of the labor contract.

Article 46 of the the People's Republic of China Labor Contract Law shall pay economic compensation to the laborer under any of the following circumstances:

The (I) employee rescinds the labor contract in accordance with the provisions of Article 38 of this Law;

The (II) employing unit proposes to the laborer to terminate the labor contract in accordance with the provisions of Article 36 of this Law and terminates the labor contract by consensus with the laborer;

(III) the employer to terminate the labor contract in accordance with the provisions of Article 40 of this Law;

(IV) the employer to terminate the labor contract in accordance with the provisions of the first paragraph of Article 41 of this Law;

A (V) terminates a fixed-term labor contract in accordance with the provisions of Item 1 of Article 44 of this Law, except where the employer maintains or improves the conditions stipulated in the labor contract to renew the labor contract and the laborer does not agree to the renewal;

The (VI) terminates the labor contract in accordance with the provisions of Items 4 and 5 of Article 44 of this Law;

Other circumstances as prescribed by (VII) laws and administrative regulations.

Article 38 of the the People's Republic of China Labor Contract Law under any of the following circumstances, the employee may terminate the labor contract:

The (I) fails to provide labor protection or working conditions as stipulated in the labor contract;

The (II) fails to pay labor remuneration in full and on time;

The (III) fails to pay social insurance premiums for the workers in accordance with the law;

The rules and regulations of the (IV) employing unit violate the provisions of laws and regulations and damage the rights and interests of laborers;

(V) the circumstances specified in the first paragraph of Article 26 of this Law render the labor contract invalid;

(VI) other circumstances under which the laborer may terminate the labor contract as stipulated by laws and administrative regulations.

If the employing unit forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or if the employing unit directs or forces the risky operation to endanger the personal safety of the laborer, the laborer may immediately terminate the labor contract without informing the employing unit in advance.

2. The compensation for the illegal termination of the labor contract is the compensation that the employer terminates the labor contract in violation of the law and should pay to the laborer in accordance with the economic compensation standard. Its function is not only to make up for the loss of the laborer and protect the laborer, but also to punish the illegal behavior of the employer.

Article 87 of the "the People's Republic of China Labor Contract Law" If the employer violates the provisions of this law to terminate or terminate the labor contract, it shall pay compensation to the laborer in accordance with twice the economic compensation standard stipulated in Article 47 of this law.

Article 47 of the "the People's Republic of China Labor Contract Law" Economic compensation shall be paid to the laborer according to the standard of one month's salary for each full year of the laborer's working years in the unit. If it is more than six months but less than one year, it shall be calculated as one year; if it is less than six months, the laborer shall be paid economic compensation of half a month's salary.

If the monthly salary of a worker is three times higher than the average monthly salary of the employee in the previous year announced by the people's government of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard for paying economic compensation to him shall be three times the average monthly salary of the employee. The maximum number of years for paying economic compensation to him shall not exceed twelve years.

The term "monthly wage" as mentioned in this article refers to the average wage of a worker for the twelve months prior to the termination or termination of the labor contract.

At the same time, it should be noted that the average monthly salary of economic compensation is calculated according to the monthly salary payable by the company to employees, that is, pre-tax salary. Article 27 of the Regulations on the Implementation of the Labor Contract Law "The monthly wages of economic compensation stipulated in Article 47 of the Labor Contract Law shall be calculated on the basis of the wages due to the workers, including hourly wages or piece-rate wages, as well as monetary income such as bonuses, allowances and subsidies. If the average wage of the laborer in the 12 months before the termination or termination of the labor contract is lower than the local minimum wage standard, it shall be calculated in accordance with the local minimum wage standard. If a worker has worked for less than 12 months, the average wage shall be calculated according to the number of months actually worked."

1. According to Article 46 of the the People's Republic of China Labor Contract Law, the laborer unilaterally proposes to terminate the labor contract;

2. The employer shall terminate the labor contract with the laborer through negotiation in accordance with Article 36 and Paragraph 1 of Article 46 of the the People's Republic of China Labor Contract Law;

3. Upon the expiration of the labor contract, the employer will not renew the contract or reduce the conditions stipulated in the labor contract and require the laborer to renew it. If the laborer does not agree to renew the contract, both parties shall terminate the labor contract;

(4) The labor contract is terminated in accordance with the provisions of Item 4 and Item 5 of Article 44 of the the People's Republic of China Labor Contract Law:

5. The labor contract is invalid due to the circumstances stipulated in the first paragraph of Article 26 of the the People's Republic of China Labor Contract Law

6. Other circumstances stipulated by laws and administrative regulations.

Article 26 of the the People's Republic of China Labor Contract Law The following labor contracts are invalid or partially invalid:

(I), by means of fraud or coercion or by taking advantage of the danger of others, to make the other party conclude or change the labor contract against the true will;

(II) the employer exempts itself from statutory responsibilities and excludes the rights of workers;

(III) violation of the mandatory provisions of laws and administrative regulations.

If there is a dispute over the invalidity or partial invalidity of a labor contract, it shall be confirmed by the labor dispute arbitration institution or the people's court.

Article 44 of the the People's Republic of China Labor Contract Law, a labor contract shall be terminated under any of the following circumstances:

The (I) labor contract expires;

(II) workers begin to enjoy basic old-age insurance benefits in accordance with the law;

The (III) worker is dead, or is declared dead or missing by a people's court;

(IV) employer is declared bankrupt according to law;

(V) the business license of the employer is revoked, or the employer is ordered to close down or cancel, or the employer decides to dissolve in advance;

Other circumstances as prescribed by (VI) laws and administrative regulations.

1. The employer only needs to pay n 1 economic compensation when terminating the labor contract with the laborer in accordance with Article 40 of the the People's Republic of China Labor Contract Law, and other circumstances are not applicable;

2. If the company wants to terminate the labor contract immediately, it can choose to pay more than one month's salary as the notice payment and pay double the economic compensation.

That is, if the employer directly terminates the labor contract with the laborer without legal reasons stipulated by law, it is an illegal termination. The situation of illegal termination of the labor contract has been described above and will not be repeated here.

Article 2 Employees of government organs, organizations, enterprises, institutions, private non enterprise units, individual industrial and commercial households with employees shall enjoy paid annual leave (hereinafter referred to as annual leave) if they have worked continuously for more than one year. The unit shall ensure that employees enjoy annual leave. During the annual leave, employees enjoy the same wage income as during normal work.

Article 3 of the Regulations on Paid Annual Leave for Employees If an employee has worked for 1 year but less than 10 years, the annual leave shall be 5 days; if the employee has worked for 10 years but less than 20 years, the annual leave shall be 10 days; if the employee has worked for 20 years, the annual leave shall be 15 days.

National statutory holidays and rest days are not included in the annual leave.

Article 5 of the "Regulations on Paid Annual Leave for Employees" Annual leave can be arranged centrally or in stages within one year, and generally not arranged across years. Therefore, the annual leave shall be arranged before December 31 of the current year. If it is not arranged beyond that day, the annual leave salary shall be paid in accordance with the regulations.