Viewpoint............................................................................................................................
Published:
2022-12-16
The arbitration statute of limitations for 2. twice the wage difference applies to the ordinary statute of limitations. Article 27 of the Law on Labor Dispute Mediation stipulates the limitation period of labor arbitration as one year, and stipulates the exceptions of the starting, suspension, interruption and arrears of labor remuneration during the limitation period of labor arbitration, forming a relatively perfect labor arbitration limitation system. However, for the type of labor dispute case in which the employer fails to sign a written labor contract in accordance with the law and the worker demands to pay twice the wage difference, there are disputes in practice as to whether the ordinary time limit stipulated in the first paragraph of Article 27 of the Labor dispute Mediation and Arbitration Law is applicable to the special time limit stipulated in the fourth paragraph of this article. In the current arbitration and judicial trial practice, the current mainstream view is to apply the ordinary statute of limitations for arbitration that requires the payment of double the wage difference without a written labor contract. The main reason is that the double wage difference does not belong to the labor remuneration in the sense of labor law. In addition, according to the first paragraph of Article 82 of the Labor Contract Law, "If the employer fails to conclude a written labor contract with the laborer for more than one month but less than one year from the date of employment, it shall pay the laborer three times the monthly salary", which also shows that the double wage difference is not a kind of labor remuneration that the laborer should receive for normal labor, but because the employer did not sign a written labor contract with the worker in accordance with the law and bear a punitive damages. It can be seen that there is a fundamental difference in the nature of double wage difference and labor remuneration, so for labor dispute cases such as the payment of double wage difference without a written labor contract, the labor arbitration statute of limitations should apply to the ordinary statute of limitations. How should the statute of limitations for arbitration 3. twice the wage difference be calculated? In a labor dispute case involving a double wage difference, the limitation period for applying for arbitration is one year, and the limitation period for arbitration is calculated from the date when the worker knows or should know that his rights and interests have been infringed. Among them, "knowing" belongs to the real state, that is, the laborer is clearly aware that his legitimate rights and interests have been infringed; "should know" belongs to the state of due and legal presumption, that is, the legal presumption that the laborer "should know" the labor contract law and related labor Relevant provisions in laws and regulations. Therefore, according to the provisions of the first paragraph of Article 82 of the Labor Contract Law, if the employer has not yet concluded a written labor contract with the worker for one month from the date of employment, it is deemed that the worker knows or should know that his labor rights and interests have been infringed, and the arbitration limitation period for requiring the employer to pay twice the wage difference shall begin to be calculated, that is, it shall be calculated on a monthly basis from the next day after the date of one month after the date of employment, and calculate the limitation of arbitration month by month. In practice, the time limit for arbitration is calculated on a monthly basis from the date on which the worker claims his or her rights to the date on which the labor relationship has completed one year. The amount of double salary is: monthly salary x number of cross months.
The arbitration statute of limitations for 2. twice the wage difference applies to the ordinary statute of limitations.
Article 27 of the Law on Labor Dispute Mediation stipulates the limitation period of labor arbitration as one year, and stipulates the exceptions of the starting, suspension, interruption and arrears of labor remuneration during the limitation period of labor arbitration, forming a relatively perfect labor arbitration limitation system. However, for the type of labor dispute case in which the employer fails to sign a written labor contract in accordance with the law and the worker demands to pay twice the wage difference, there are disputes in practice as to whether the ordinary time limit stipulated in the first paragraph of Article 27 of the Labor dispute Mediation and Arbitration Law is applicable to the special time limit stipulated in the fourth paragraph of this article. In the current arbitration and judicial trial practice, the current mainstream view is to apply the ordinary statute of limitations for arbitration that requires the payment of double the wage difference without a written labor contract. The main reason is that the double wage difference does not belong to the labor remuneration in the sense of labor law. In addition, according to the first paragraph of Article 82 of the Labor Contract Law, "If the employer fails to conclude a written labor contract with the laborer for more than one month but less than one year from the date of employment, it shall pay the laborer three times the monthly salary", which also shows that the double wage difference is not a kind of labor remuneration that the laborer should receive for normal labor, but because the employer did not sign a written labor contract with the worker in accordance with the law and bear a punitive damages. It can be seen that there is a fundamental difference in the nature of double wage difference and labor remuneration, so for labor dispute cases such as the payment of double wage difference without a written labor contract, the labor arbitration statute of limitations should apply to the ordinary statute of limitations.
How should the statute of limitations for arbitration 3. twice the wage difference be calculated?
In a labor dispute case involving a double wage difference, the limitation period for applying for arbitration is one year, and the limitation period for arbitration is calculated from the date when the worker knows or should know that his rights and interests have been infringed. Among them, "knowing" belongs to the real state, that is, the laborer is clearly aware that his legitimate rights and interests have been infringed; "should know" belongs to the state of due and legal presumption, that is, the legal presumption that the laborer "should know" the labor contract law and related labor Relevant provisions in laws and regulations. Therefore, according to the provisions of the first paragraph of Article 82 of the Labor Contract Law, if the employer has not yet concluded a written labor contract with the worker for one month from the date of employment, it is deemed that the worker knows or should know that his labor rights and interests have been infringed, and the arbitration limitation period for requiring the employer to pay twice the wage difference shall begin to be calculated, that is, it shall be calculated on a monthly basis from the next day after the date of one month after the date of employment, and calculate the limitation of arbitration month by month. In practice, the time limit for arbitration is calculated on a monthly basis from the date on which the worker claims his or her rights to the date on which the labor relationship has completed one year. The amount of double salary is: monthly salary x number of cross months.
Key words:
Previous article
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
