What Is Labor Arbitration?

Labor arbitration refers to the arbitration and adjudication of labor disputes that the parties apply for arbitration by the labor dispute arbitration committee. In China, labor arbitration is a necessary procedure for parties to a labor dispute to bring a suit in a people's court. According to the Labor Dispute Mediation and Arbitration Law ^[1] , a party that initiates labor arbitration shall submit a written application to the Labor Dispute Arbitration Commission within one year from the date of the labor dispute. Unless the parties have force majeure or other legitimate reasons, the arbitration commission will not accept an application for arbitration that exceeds the time limit prescribed by law.

Labor Arbitration

Labor arbitration refers to

The materials required for labor arbitration can be summarized into three different categories. The materials required for applying for labor arbitration are also different:

First, applicants are employees, please submit the following materials:

(1) Application for labor arbitration (state the facts and reasons of the application in detail, provided in duplicate or according to the number of the respondent;

(2) Applicant's identity certificate and photocopy;

(3) If there is an authorized agent, it is necessary to sign and submit a Power of Attorney in person, indicating the entrusted matters, and submit a copy of the ID card of the authorized agent. If the client's agent is a practising lawyer sent by a law firm, a copy of the practising lawyer's certificate should be provided: if the client's agent is a citizen, a non-charge agency agreement signed with the client and the agent and Legal information on the relationship between clients;

(4) Information on industrial and commercial registration of the respondent;

(5) Proof materials of the labor relationship between the applicant and the respondent (certification materials include: labor contract, temporary residence permit, work permit, label, work card, salary list (single), employment registration form, deposit receipt, and voucher for punishment And dismissal, dismissal, dismissal, termination (or termination) of labor relationship notice or certificate, etc.). When submitting the certification materials, the applicant should attach one original and one copy, and return the original after review;

(6) The "List of Submission of Evidence Materials" in duplicate;

Second, if the applicant is a collective dispute, please submit the following materials: In addition to the first category (1) to (6), the applicant must recommend 3 or 5 employee representatives, and submit a list of employee representatives and all Employee signature form, which is a collective dispute case of arrears of wages. The applicant also needs to submit a list of employees who are in arrears with employees' wages and arrears of balance.

The third category, the applicant is an employer, please submit the following materials:

(1) A copy of the respondent's identity certificate;

(2) Proof that the applicant and the respondent have a labor relationship (same as the requirement in item (6) of the first category);

(3) A photocopy of a copy of the Business License;

(4) Certificate of Identity of Legal Representative;

(5) If there is an entrusted agent, a copy of the ID card of the entrusted agent shall be submitted in the "Power of Attorney" (specify the entrusted matters);

(6) "List of Submission of Proof Materials" (in duplicate).

Chapter One

1. Employers and workers can apply for labor arbitration if they have the following labor disputes:

Party application

The legal system of labor arbitration has certain advantages, including:

1. Apply for arbitration within one year after the dispute occurs and submit an arbitration appeal

2. The arbitration commission shall decide whether to accept the appeal within five days from the date of receipt of the appeal;

3 The arbitral tribunal notified the parties in writing five days before the hearing

4 Hearings, clear requests, defenses, investigations of facts, proofs, debates, statements.

5. Mediation

6. The mediation is unsuccessful.

Labor arbitration is different from the general

Rules for the Arbitration of Labor and Personnel Disputes

Decree of the Ministry of Human Resources and Social Security (No. 5)

The Rules for the Arbitration of Labor and Personnel Disputes was adopted on January 19, 2010 by the 38th Ministerial Meeting of the Ministry of Human Resources and Social Security, and agreed with the Office of the Central Institutional Establishment Committee, and it will be promulgated for implementation from the date of promulgation.

Yin Weimin

January 20, 2010

There are six main differences between the two.

Labor arbitration is a more direct method of safeguarding rights, and it can also be carried out at the same time, because employees who fail to provide economic compensation and participate in social insurance in accordance with regulations can be obtained by complaining to the labor department. According to the provisions of the Supervision Regulations of Sichuan Province on Labor and Social Security Supervision: Article 13 prohibits the following actions of employers: (1) When publicly publishing recruitment information in the media, do not send the recruitment brochure to the labor and social security administrative department for the record (2) Violating the requirements of holding a certificate and using a worker who has not obtained the corresponding professional qualification certificate to perform the corresponding work; (3) Collecting registration fees, risk funds, security deposits or other disguised fees in disguise; (4) ) Recruiting minors under 16 years of age in violation of regulations; (5) Arranging female employees and juvenile workers to engage in taboo labor; (6) Failure to sign labor contracts and collective contracts in accordance with law; (7) Deductions and unpaid arrears (8) Those who do not pay wages to extend their working hours; (9) Those who pay wages lower than the local minimum wage standard; (10) Those who do not provide employees with economic compensation in accordance with regulations after termination of labor contracts; (11) Failure to participate in social insurance or to perform social insurance premium payment obligations; (12) Violation of labor and social security laws and regulations Other acts of.

According to the provisions of Article 15 of the Supervision Procedure of the Sichuan Province Labor and Social Security Supervision Regulations, Article 15: The labor and social security administrative departments shall timely register and carry out complaints, reports and problems found in the supervision of the masses. Investigate and distinguish between different situations and deal with them according to the following provisions: (1) if there is a fact that violates labor and social security laws and regulations and requires administrative treatment or administrative punishment, the case shall be filed within 5 working days from the date of registration; (2) If it is not within the authority of the administrative department of labor and social security, inform the parties to report to the relevant authorities; (3) if it is a labor dispute, notify the parties that they can apply for mediation, arbitration or bring a lawsuit; (4) the illegal act is suspected of constituting a crime , Transferred to the judicial authorities for processing.

When a worker has a labor dispute, the worker has the right to apply for arbitration or complain to the relevant department. Which method is better or the combination of two methods is effective, it depends on the specific content of the dispute. Labor inspection is an administrative law enforcement. In the process of labor inspection, once the labor supervision organ makes a decision, it will become legally effective immediately, and the relevant units and individuals shall implement it immediately. If the parties concerned are not satisfied with the decision, they may file an administrative review or administrative lawsuit. During the application for review or administrative lawsuit, the implementation of the decision will not be affected. The ruling made by the labor dispute arbitration agency does not take effect immediately, but is in a state of pending validity. If the parties are dissatisfied with the labor arbitration award, they can sue to the people's court within the statutory period. Only when the statutory period expires and both parties do not sue, the arbitration award will take effect. The lawsuit is an ordinary civil lawsuit brought by the other party in the labor dispute as the defendant.

The purpose of labor inspection and labor arbitration is to protect the implementation of national labor laws and regulations, ensure the legitimate rights and interests of the parties to the labor relationship, and maintain social stability. Not only are the two not exclusive, but they can also complement each other through cooperation.