Perspective | Quick Q&A on Labor Dispute Arbitration - Matters of Timeliness
Published:
2024-11-01
Quick Q&A on Labor Dispute Arbitration
1. Ordinary time limit
The time limit for applying for arbitration in labor disputes is one year. The arbitration time limit is calculated from the date when the parties know or should know that their rights have been infringed.
2. Special time limit
If a dispute arises due to unpaid labor remuneration during the existence of the labor relationship, the worker's application for arbitration is not subject to the time limit specified in the first paragraph of this article; however, if the labor relationship is terminated, it should be submitted within one year from the date of termination.
1. Circumstances of termination of the labor contract
(1) The labor contract expires; (2) The worker begins to enjoy basic pension insurance benefits according to law; (3) The worker dies, or is declared dead or missing by a people's court; (4) The employer is declared bankrupt by law; (5) The employer's business license is revoked, ordered to close, canceled, or the employer decides to dissolve early; (6) Other circumstances as stipulated by laws and administrative regulations. (Labor Contract Law Article 44)
2. When does the labor relationship of personnel who reach the statutory retirement age terminate?
The mainstream view is that it should be determined based on whether the worker can enjoy basic pension insurance benefits.
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According to Article 32 of the "Interpretation (1) of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases", if a worker reaches the statutory retirement age set by the state and cannot enjoy basic pension insurance benefits due to reasons not attributable to the employer, the labor relationship should be terminated. If the worker re-employs, it should be recognized as a labor service relationship; if the worker reaches the statutory retirement age and cannot enjoy basic pension insurance benefits due to reasons attributable to the employer, it should not be recognized as the termination of the labor relationship. (Shandong Provincial High People's Court's answers to several issues in the trial of labor dispute cases)
Claimed by the parties
The expiration of the arbitration time limit belongs to the scope of defense rights and should be claimed by the parties. If the parties do not raise the defense of arbitration time limit, the arbitration institution and the people's court should not explain the issue of arbitration time limit.
The mainstream view is that the ordinary time limit applies.
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Article 2 of the Labor Dispute Mediation and Arbitration Law clearly states that disputes arising from the confirmation of labor relationships fall within the scope of labor disputes. The arbitration time limit stipulated in Article 27 of the Labor Dispute Mediation and Arbitration Law does not explicitly exclude the application of arbitration time limit for the confirmation of labor relationship, and since workers generally file lawsuits for confirmation of labor relationships after the termination of the labor relationship, the arbitration time limit stipulated in the Labor Dispute Mediation and Arbitration Law should apply. (Shandong Provincial High People's Court's answers to several issues in the trial of labor dispute cases)
The mainstream view is that the ordinary time limit applies, calculated from the day after one month from the date the employer should have signed the labor contract.
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The "double wages" stipulated in Article 82 of the Labor Contract Law includes an additional wage that has a punitive compensation nature and does not belong to labor remuneration. If the employer has not signed a written labor contract with the worker for more than one month from the date of employment, the time limit for the worker to apply for arbitration for double wages is one year.
The worker's request for the employer to pay double wages for not signing a labor contract can be regarded as a periodic payment obligation agreed upon under the same contract, which should be treated as a whole obligation. The arbitration time limit should be calculated from the date the employer supplements the labor contract with the worker or from the date it is deemed that both parties have signed a non-fixed-term labor contract. (Shandong Provincial High People's Court and Shandong Provincial Department of Human Resources and Social Security's minutes on several issues in the trial of labor and personnel dispute cases)
The double wages stipulated in Article 82 of the Labor Contract Law for not signing a written labor contract is a statutory responsibility that the employer should bear for not signing a written labor contract with the worker, which is a punitive responsibility for the employer's failure to fulfill the legal obligation to sign a written labor contract with the worker. The double wages, in legal nature, do not belong to the wages that the worker should receive after providing normal labor to the employer. The worker's claim for the employer to pay double wages does not belong to the labor remuneration claim but to the punitive compensation claim, which falls within the category of creditor's claims and should apply the provisions on arbitration time limits in the Labor Dispute Mediation and Arbitration Law. (Shandong Provincial High People's Court's answers to several issues in the trial of labor dispute cases)
There is still considerable controversy. Labor dispute arbitration institutions in Jinan generally believe that unpaid annual leave wages apply the ordinary time limit, while the Shandong Provincial High People's Court's answers suggest that unpaid annual leave wages apply the special time limit.
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Regarding the definition of relevant terms in Article 2 (4) and (5) of the Labor Dispute Mediation and Arbitration Law, "rest and vacation" disputes refer to disputes arising from whether the employer implements laws, regulations, rules, and collective contracts legally signed, as well as labor rules and regulations formulated and revised in accordance with the law regarding statutory holidays, statutory rest days, paid annual leave, family visit leave, marriage and funeral leave, maternity leave, breastfeeding leave, family planning leave, and other policy holidays set by the employer. (Shandong Provincial High People's Court, Shandong Provincial Labor Dispute Arbitration Committee, and Shandong Provincial Labor and Personnel Dispute Arbitration Committee's opinions on the application of the Labor Dispute Mediation and Arbitration Law and the Labor Contract Law)
According to the "Regulations on Paid Annual Leave for Employees" (State Council Order No. 514) and the "Implementation Measures for Paid Annual Leave for Enterprise Employees" (Ministry of Human Resources and Social Security Order No. 1), if the employer, with the consent of the employee, does not arrange annual leave or arranges fewer days of annual leave than the employee is entitled to, the employer shall pay the employee 300% of their daily wage for the days of annual leave not taken. According to Article 10 of the "Regulations on the Composition of Total Wages", the wages for unused annual leave are considered wages paid under special circumstances, and there is no clear distinction between the different components of unused annual leave wages. If an employee requests the employer to pay for unused annual leave wages, the arbitration statute of limitations applies the provisions of Article 27, Item 4 of the Labor Dispute Mediation and Arbitration Law, meaning that the employee's request for payment of unused annual leave wages is not subject to the arbitration statute of limitations. ("Answers to Several Questions on the Trial of Labor Dispute Cases by the Third Tribunal of the Shandong Provincial High People's Court")
The mainstream view is that special limitations apply.
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In labor dispute litigation where the employee claims overtime pay, if the employer raises a defense based on the statute of limitations for arbitration, according to Article 4 of the "Regulations on the Composition of Total Wages" approved by the State Council on September 30, 1989, and issued by the National Bureau of Statistics on January 1, 1990 (National Bureau of Statistics Order No. 1), overtime pay is essentially a component of labor remuneration, and the employee's request for the employer to pay overtime wages is not subject to the arbitration statute of limitations. ("Answers to Several Questions on the Trial of Labor Dispute Cases by the Third Tribunal of the Shandong Provincial High People's Court")
The mainstream view is that general limitations apply.
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Basic living expenses are not the compensation for the labor provided by the employee, but rather a social responsibility that the employer is legally obligated to bear. Just because there are regulations regarding wage payments that involve basic living expenses does not mean that basic living expenses are considered labor remuneration. In nature, basic living expenses do not belong to labor remuneration and are not subject to the provisions of Article 27, Item 4 of the Labor Dispute Mediation and Arbitration Law. ("Minutes of the Meeting on Several Issues Regarding the Trial of Labor and Personnel Dispute Cases by the Shandong Provincial High People's Court and the Shandong Provincial Department of Human Resources and Social Security")
The mainstream view is that general limitations apply.
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Maternity benefits should be considered a social insurance benefit for employees and do not belong to labor remuneration. The arbitration statute of limitations for disputes over maternity benefits should apply the provisions of Article 27, Item 1 of the Labor Dispute Mediation and Arbitration Law. ("Minutes of the Meeting on Several Issues Regarding the Trial of Labor and Personnel Dispute Cases by the Shandong Provincial High People's Court and the Shandong Provincial Department of Human Resources and Social Security")
"Social insurance" disputes specifically include the following: (1) Disputes arising from the employer's failure to pay basic medical, work injury, and maternity insurance premiums for the employee, where the employee requests direct payment of basic medical, work injury, and maternity insurance benefits and compensation. (2) Disputes arising from whether the employer should bear part of the work injury insurance benefits for which they are legally obligated to pay. ("Opinions on the Application of the Labor Dispute Mediation and Arbitration Law and the Labor Contract Law of the People's Republic of China")
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