Wang chongrong

Problems in the Implementation of Labor Law in China

First, the principle of "arbitration first" and the short time limit for arbitration lead to the lack of civil rights.

According to Article 79 of the Labor Law of People's Republic of China (PRC), after a labor dispute occurs, the parties may apply to the Labor Dispute Mediation Committee of the unit for mediation; If mediation fails and one party requests arbitration, it may apply to the Labor Dispute Arbitration Committee for arbitration. One party may also directly apply to the Labor Dispute Arbitration Commission for arbitration. If you are dissatisfied with the arbitral award, you can bring a lawsuit to the people's court. " This provision legally confirms the principle of "arbitration takes precedence", that is, arbitration is the premise of litigation settlement, and the people's court only accepts labor dispute cases that are not satisfied with the arbitration award. If a lawsuit is brought directly without arbitration, the people's court will not accept it.

I think that the provision of "arbitration pre-procedure" in the current labor dispute settlement system violates the traditional arbitration legislative procedure of voluntary arbitration, which hinders the parties from exercising their freedom of arbitration claim and litigation rights, and also deprives those who cannot enter the arbitration procedure of the right to seek judicial relief. Moreover, the litigation procedure of first instance and second instance leads to the increase of dispute settlement cost and the extension of closing time, which is not conducive to protecting the legitimate rights and interests of the parties. Labor disputes are fundamentally civil disputes, and both parties to the dispute are generally equal civil subjects in law. The parties have the right to freely choose the way to solve the labor dispute. Labor arbitration, as a mandatory provision of the pre-procedure of labor litigation, deprives the parties of the right to directly resort to the court for labor disputes.

The limitation of labor dispute arbitration is 60 days, which is too different from the two-year limitation of appeal in civil law. If the dispute case lasts for more than 60 days, but the limitation of action for general civil cases has not expired, the people's court will reject the claim according to law because the arbitration institution refuses to accept it. This is obviously not conducive to protecting the legitimate rights and interests of the parties, and greatly damages the spirit of the labor law as a social law focusing on protecting the legitimate rights and interests of workers.

Labor law and related legal norms are numerous and complicated, and it is difficult for parties (especially laborers) to fully understand them. When they know that a fact is illegal, the time limit for arbitration has expired and they lose the right to apply for arbitration, but it does not exceed the time limit for appeal in civil law. In the case of implementing the system of adjudication before trial, workers cannot realize their litigation rights, which leads to the lack of civil rights.

When I went to work in a chemical plant in Daxing District, Beijing in 2000, the labor contract signed with the factory stipulated that I would work 26 days a month, 8 hours a day, and the monthly salary was 3,000 yuan. If I am absent from work for less than 26 days (including legal holidays), my salary will be deducted according to the number of days. At that time, I didn't know that this regulation violated the labor law. The corresponding wages were deducted during the National Day holiday in the factory that year, and the wages were also deducted on New Year's Day, Spring Festival and International Labor Day the following year. It was not until I had a dispute with the factory about taking the mortgage risk in the factory and sought the relevant labor legal basis that I realized that it was illegal for the factory to deduct the statutory holiday wages, and working 26 days a month and 8 hours a day also violated the labor law "the working hours per week should not exceed 40 hours". However, when I complained that the enterprise had deducted the wages for statutory holidays and overtime pay for working hours that exceeded the standards stipulated in the Labor Law, the local labor arbitration institution refused to accept all complaints that were more than 60 days from the date of complaint on the grounds that the arbitration period was exceeded, but the litigation period was not exceeded at this time. When I refused to accept the arbitration award and brought a lawsuit to the court, because the arbitration was not accepted and the court refused to accept it, my rights and interests were damaged and there was no way to complain. Moreover, it took nearly 1 1 month from filing a case with an arbitration institution at the beginning of June 2006 to closing the case in the court of second instance at the end of April 2002, involving more than 8,000 yuan, which not only increased the litigation cost, but also harmed my economic interests. If I hadn't had some savings, I'm afraid my life during this period would have been a problem.

In reality, there are many similar incidents. Because workers are in an absolute weak position relative to employers, sometimes it is not easy for them to find a job, and they are afraid that the leaders of employers will be dissatisfied with applying for arbitration because of overtime or some disputes caused by overtime, so they will take various measures to force workers to resign, so that they lose their jobs and dare not file arbitration, and eventually lose the right to apply for arbitration. However, at this time, the limitation of appeal has not expired, and because of the pre-procedure of arbitration, workers can not exercise their litigation rights.

In civil law, the prescription begins when the parties know or should know that their rights have been infringed, while labor disputes generally begin when the "facts" of the dispute occur. In this way, in many cases, workers have exceeded the time limit for arbitration before they realize that their rights and interests have been infringed, but when they know that their rights and interests have been infringed, they can no longer apply for arbitration, let alone litigation. In particular, it is very common for employers to default on workers' wages or overtime pay for one or two months. Because enterprises implement a monthly payment system, that is, pay wages once a month, and some enterprises pay wages from 10 to 20 the next month. When employees get paid, it has been more than a month since the initial labor behavior. Only when employees get paid can they know whether their interests have been infringed, and they do so unconsciously in the process of negotiating with enterprises. And at present, due to the shortage of funds, many enterprises will default on their wages for one or two months from time to time, and employees have become accustomed to it. However, when a labor dispute occurs at this time, the arbitration limitation has passed, so the right to win the case is still lost. What's more, in order to keep their jobs, many workers often dare not say anything, and 60 days pass quickly, which makes the labor rights that should be protected disappear.

In addition, the scope of accepting labor dispute cases by labor dispute arbitration institutions is limited, which may lead to some labor disputes not being accepted by labor dispute arbitration institutions, or being rejected by labor arbitration institutions because of errors, which may lead to the failure of the parties' right to appeal.

Second, labor arbitration institutions are too administrative and easily influenced by local protection ideas.

Because local labor dispute arbitration institutions are subordinate to local governments, they are easily influenced by local protection ideas, which makes it difficult to protect the interests of workers, especially migrant workers.

Labor arbitration institutions are too administrative and lack independence. According to the Regulations on Handling Labor Disputes, "the labor dispute arbitration committee consists of representatives from the labor administrative department, the trade union at the same level and the employing unit. The person in charge of the labor administrative department is the legal director of the labor dispute arbitration commission, and the labor dispute arbitration institution is located in the labor administrative department. " As a matter of fact, the labor dispute arbitration commission is an institution without legal person's capacity for civil conduct, and it is inevitable that the labor administrative department will handle cases exclusively. The so-called "tripartite mechanism" of the labor dispute arbitration commission has been shelved, and it is actually difficult to play the just role of tripartite checks and balances. The offices of many labor arbitration committees and the corresponding institutions of labor administrative departments are "one set of people and two brands", and administrative power plays a dominant role in arbitration institutions. If the government can be honest and self-disciplined, such an arbitration system can also be fair. But in fact, the ruling ideas of some local governments and their officials make it difficult for them to assume such a role. For the needs of local economic development, some local governments tend to favor employers and ignore the protection of workers' rights and interests in labor disputes. Some government departments think that the labor law, like other laws, can be settled through consultation with the employer and can be ignored as far as possible. Some government officials are entangled with local employers, turn a blind eye to violations of workers' rights and interests, deliberately favor and encourage employers, which greatly damages workers' rights and interests and leads workers in some places to take some extreme measures, such as strikes and demonstrations.

In 2000, when I was working in a chemical factory in Daxing District, Beijing, the labor contract signed with the factory stipulated that the monthly salary was 3,000 yuan, of which 2,000 yuan was salary and 1 1,000 yuan was attendance award. Those who attend for less than 26 days will not be rewarded. When I had a dispute with the factory because of mortgage risk and the factory decided to dismiss me, I applied to the labor dispute arbitration institution in Daxing District, Beijing for arbitration, demanding that the factory pay me overtime pay according to the total salary of 3,000 yuan, and give me economic compensation equivalent to 3,000 yuan a month's salary. However, the manufacturer thinks that 1 1,000 yuan is an attendance award, so overtime pay can only be calculated according to the monthly salary of 2,000 yuan, and it is not agreed to pay economic compensation. The arbitration institution adopted the manufacturer's opinion. Later, when I studied the labor law, I realized that the arbitration institution's ruling was wrong. "The monthly wage standard for calculating overtime wages should include hourly wages, piece-rate wages, bonuses and various subsidies", so the monthly wage standard of 3,000 yuan should be used as the base for calculating overtime wages. And if the factory dismisses me, it should pay me one month's salary (monthly standard salary) in accordance with the provisions of the Labor Law, that is, 3,000 yuan as economic compensation-the employer should pay the laborer one month's salary for one year, less than one year, and one year. Here, out of the idea of local protection, the arbitration institution does not protect the interests of migrant workers when the workers do not fully understand the law.

Third, it is difficult for workers to bear the burden of proof under the factual labor relationship.

Because workers are in a passive position in the employer, it is difficult to obtain relevant evidence when their interests are infringed, which makes them at a disadvantage in the appeal and difficult to win the case, especially when the employer has not signed a labor contract with the workers, it is even more difficult for the workers to obtain evidence.

When I joined a well-known door and window factory in Shunyi District, Beijing, because the employer did not sign a labor contract with me (not everyone I recruited at the same time), I verbally agreed that the internship period would be 3 months, and the internship report would be submitted at the due date. Three months later, I submitted my work-related internship report, and I haven't received any reply from my unit since then. A month later, I got my salary, or my internship salary, so I went to ask Liu, the deputy director in charge of personnel. Liu said, "Didn't the department manager talk to you?" I said, "No." Liu said, "I will ask her and give you an answer." Three days later, Liu came to me and said, "Well, after this assessment, I think your communication with relevant parties is not good enough, so the company decided to dismiss you." I am engaged in cost accounting, not sales, and communication skills should not be the main item of assessment, but the unit dismissed me for such reasons, without any economic compensation, and I have no evidence to apply for arbitration. Because the enterprise didn't sign a labor contract with me and didn't implement the punch card system, the attendance card was in the hands of the department manager, and it was filled out in his office after checking the post on time every day. Employees can't see the attendance record at all, and the payroll is only taken back by the finance department when employees sign it every month, so it is impossible for employees to obtain evidence. In this way, a dozen people who came to the factory with me were dismissed for different reasons in four months, and only one person was left when I left. At the same time, companies are recruiting and firing every month. This enterprise earns cheap labor in this way during the internship period.

After leaving this unit, I applied to work in an accounting firm and a consulting company in Beijing. They also staged the above scene, and I was one of the many victims. When I left the consulting company, I didn't even get the most basic salary, because I resigned voluntarily, and the unit refused to settle my salary on the grounds that I had no money for the time being, and I still couldn't produce any evidence of my complaint.

It is very common for migrant workers like me who come to Beijing from other places to be infringed by enterprises and unable to obtain complaint evidence.

Due to the relative particularity of the parties in labor dispute cases, the labor legal relationship has the characteristics of subordination and dependence besides the equality of general civil law. A large number of labor disputes are caused by the unilateral behavior of employers as managers, and workers often cannot prove with valid evidence when their legitimate rights and interests are violated. For example, the rules and regulations formulated by the employer, attendance records, wage payment records and social insurance payment records are all in the hands of the employer, and it is impossible for workers to prove these evidences. If the employer does not sign a labor contract with the employee, the employee really has no evidence.

In view of the above problems, I suggest taking the following countermeasures:

First, intensify investigation and punishment, widely publicize laws, establish labor inspection institutions directly under the central government, and conduct regular inspections and random checks. The contents of the inspection shall include the enterprise's labor report, enterprise attendance sheet, salary payment sheet, labor contract, social insurance payment receipt and other related aspects. The inspection method can be combined with unannounced visits, enterprise self-inspection and labor inspection agency review. At the same time, a labor petition office is set up in the labor inspection agency, and workers can complain directly to the petition office. This will deter employers from easily crossing the forbidden zone of the law, and at the same time avoid the situation that local governments ignore the rights and interests of workers out of local protection ideas, which is more conducive to protecting the rights and interests of workers.

In reality, many workers are unwilling to take legal action with their employers, because even if they win the lawsuit with their employers, they will lose their jobs. Moreover, workers and employers lose not only a job, but also future employment opportunities. Because the employer knows that someone has filed a lawsuit with the employer, and is afraid that this person will bring trouble to the unit in the future, it will not be hired. There are also many employers who do not sign labor contracts with workers when recruiting, in order to prevent workers from leaving evidence. When a worker proposes to sign a labor contract, the employer refuses to hire or dismiss for various reasons. At present, due to the surplus labor force in China and the demand-side market, it is not easy for workers to find jobs, so they have to acquiesce in these unwritten rules and dare not ask for labor contracts when looking for jobs, let alone labor security. And some local governments just take an indifferent attitude towards all this. This undoubtedly encourages unfair labor practices of management to a certain extent, such as asking workers to work overtime but not paying overtime and not giving workers normal vacations. This not only further causes the surplus of labor force and intensifies the contradiction of oversupply in the labor market, but also leads to the uneven distribution of social wealth because employers can get more surplus value from it. Therefore, in order to truly protect the interests of workers, the central government must intensify its investigation and punishment.

At the same time, it is necessary to widely publicize and give full play to the propaganda role of the talent market. In reality, many workers simply don't know what their rights and interests are. They only know that there is this law in the labor law, and the specific content is not clear, let alone the relevant rules and regulations. The talent market is a place for workers to apply for jobs. It is urgent to let them know their rights and obligations when applying for jobs, so that they can better safeguard their rights and interests during and after employment.

At the same time, the government should subsidize some classes on labor laws and regulations, or take to the streets like the tax law, publicize the labor law to the broad masses of workers, make the labor law deeply rooted in the hearts of the people, and let every worker know his rights and obligations, which is not only conducive to protecting the rights and interests of workers, but also conducive to standardizing their behavior and mobilizing their enthusiasm.

In addition, we should widely publicize the labor law among social citizens, form social supervision, and urge employers to regulate their own behavior, so as to protect the rights and interests of workers.

Second, extend the limitation of arbitration and implement arbitration independence. In my opinion, the time limit for arbitration of labor disputes should be two years according to the civil law. For the continuous infringement of the employer, the last end point of the continuous infringement should be taken as the starting time of the limitation. For example, companies often ask employees to work longer than 8 hours, only one day off a week, and refuse to pay overtime. The starting time of limitation shall be the last extension of working hours or overtime hours before the dispute occurs. This is also in line with the provisions of the civil law on continuous infringement. In this way, workers can have enough time to know whether their rights and interests have been infringed and can better protect their legitimate rights and interests.

We should emphasize the complete independence and legal responsibility of arbitration institutions and establish independent labor dispute arbitration institutions with reference to the practices of economic arbitration institutions. The arbitration procedure and the litigation procedure are independent and do not interfere with each other. That is to say, the so-called "optional adjudication" means that the parties can choose labor arbitration or court trial, but they can only choose one of them. The so-called "respective final" means that arbitration and trial are closed within this system, rather than arbitration first and then trial. The people's court may, in accordance with the relevant provisions of the Arbitration Law of People's Republic of China (PRC), exercise the right to revoke the arbitral award and the right to order not to execute it. This not only ensures the exercise of the parties' right to appeal, but also ensures the fairness of the arbitration award, which improves the authority of labor arbitration and the efficiency of handling cases.

Different countries in the world have different labor dispute handling systems, but almost all countries' labor dispute arbitration institutions are independent of government administrative agencies, that is, they are not interfered by the government, which is also in line with the concept of judicial independence.

It is reported that the Guangdong Provincial Department of Labor and Social Security said that Guangdong plans to set up a labor arbitration institution relatively independent of the administrative and judicial organs to handle labor dispute cases. This will bring a spring breeze to the reform of the labor dispute handling system.

Three, the implementation of the principle of inversion of burden of proof

On the burden of proof, if the general principle of "whoever advocates gives evidence" is fully implemented in labor trial cases, it will not meet the requirements of labor law as a social law and emphasizing the protection of workers' rights and interests. I believe that in the trial of labor dispute cases, the burden of proof should be reasonably distributed according to the legislative spirit of labor law and the principle of fairness in civil procedure law, the nature of labor dispute, the control of evidence by the parties, the strength of evidence collection ability and other factors. For example, if the employer dismisses unqualified employees and employees who violate discipline and defaults on wages and benefits, whether it constitutes a work-related injury, due to the limitation of workers' ability to provide evidence, the inverted burden of proof system should be implemented.

Four, modify the existing laws, the introduction of labor procedure law as soon as possible.

In order to extend the limitation of action, implement the independence of arbitration and reverse the burden of proof, we must first amend the current labor law to provide legal basis for it.

On the basis of existing laws, we should increase the punishment for employers and introduce some practical punishment measures to make them operable.

At present, there is no special labor procedure law in China, and the trial of labor dispute cases is carried out in accordance with the procedures of civil procedure law and the relevant procedures of labor law. However, due to the particularity of labor relations, labor dispute cases are not ordinary civil litigation cases after all, and the provisions of civil litigation procedures are not applicable to labor dispute cases in many places. The labor litigation law should be promulgated as soon as possible to solve the problems existing in the actual labor dispute litigation procedure.

The author introduces Liaoning University, accountant, certified public accountant and corporate legal adviser.

Notes and references

1. Zuo Xiangqi, Law Press, Labor Law Operation Practice of Employers.

2. Maintenance of labor rights and interests and handling of labor disputes Shi Yan Xinhua Publishing House

3 Lao Quan on Chang Kai China Labor and Social Security Publishing House

4. The legal mechanism of labor relations adjustment Dong Shanghai Jiaotong University Press

5. Historical Exploration of Labor Law Economic Science Press

6. The content and realization of the right to work China Legal Publishing House Wu

7. Several Important Theories of China Labor Law Xia Jizhi China Labor and Social Security Publishing House

8. On the Legislation of Unfair Labor Behavior

1. Discussion on the current labor dispute handling system in China China Court Network Zhu Yan

2. On the limitation of arbitration of labor dispute cases, Liao Chaoping of China Court Network.

3. On several procedural issues of labor dispute cases

4. On the protection of workers' rights under the new situation.

5. Zhao Zhenyuan on the handling of labor disputes in Shenzhen Labor Network

6. Discussion papers on two issues in the trial of labor dispute cases, Tang, run-up network

7. The Labor Law protects the rights of workers.

8. The legal definition of the termination of labor relations Paper Run-up Network Zhang Xiliang

9. The independence of arbitration is imperative and legal protection is indispensable. Zhang Xiliang, run-up network

10. On the protection of workers' rights under factual labor relations.

1 1. On the reform of labor dispute handling system in China, run-up network Qin Xudong

12. Reflections on the trial of labor dispute cases.