Grassroots lawyers also have spring

Chapter 949 The brain hole is really big!
"We all know that labor dispute cases are adjudicated and tried twice, and labor arbitration must be preceded. Without labor arbitration, it is impossible to bring a lawsuit to the court. Of course, the court will not accept it. Even if it is accepted, it must be rejected in the end (except in special cases, For example, if the boss issues an IOU to the employee for wage arrears, and the two parties have no other disputes, the employee can directly go to the court to sue without going through labor arbitration).

It should be a basic legal common sense for court judges to apply labor arbitration statute of limitations when trying labor dispute cases, that is, labor arbitration cases must apply labor arbitration statute of limitations, not litigation statute of limitations.

As for the judge's point of view in this case, I can only say that the judge's brain is really not ordinary.

Specifically, the labor arbitration statute of limitations refers to the statutory period within which the parties to a labor dispute case request protection of their rights from a labor arbitration institution.If they fail to exercise their rights within the statutory time limit, they will lose the right to submit to labor arbitration to protect their legitimate rights and interests.

Article 20 of No. [-] of the "Labor Dispute Mediation and Arbitration Law" stipulates that the limitation period for labor disputes to apply for arbitration is one year.The limitation period for arbitration is calculated from the date on which the parties know or should know that their rights have been violated.That is to say, from the time of re-signing (or back-dating the labor contract), the laborer has already known that his rights have been violated, and the labor arbitration statute of limitations begins to count.

The statute of limitations refers to the system in which the right holder whose civil rights have been infringed does not exercise his rights within the statutory limitation period. When the limitation period expires, the people's court will no longer protect the right holder's rights.

The rights of the parties in ordinary civil cases should undoubtedly be restricted by the statute of limitations, that is, ordinary civil cases should apply the statute of limitations.

The statute of limitations for labor arbitration belongs to the provisions of special law, while the statute of limitations of litigation belongs to the provisions of general law. According to the basic principle of legal application that "special law is superior to general law", this case is a labor dispute case, and the statute of limitations for labor arbitration should be applied instead of general law. The statute of limitations for civil actions.Therefore, both the People's Court and the Labor Arbitration Commission should apply the one-year arbitration statute of limitations when trying labor dispute cases.

Secondly, regarding the starting time of double wages without a labor contract.

Article 80 of No. [-] of the "Labor Contract Law" stipulates that if the employer fails to sign a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly salary.

According to the above-mentioned regulations, the period of payment of double wages to laborers per month is less than one year after more than one month from the date of employment.

Only those who have established a labor relationship but have not signed a written labor contract can calculate the double salary, and there is a grace period of one month, that is to say, the double salary can not exceed 11 months at most.

Under the circumstances that the law clearly stipulates, the courts of the second instance in this case still firmly support the calculation of double wages for laborers who have not signed a labor contract from the day of employment rather than the day after the full month. Puzzling!

In other words, it's not legal!I don’t know if the courts in this area uniformly calculate in this way, at least from the case of Henan province handled by our law firm, it is the first time I have seen such a calculation. "Wang Chuan said.

"Lawyer Wang, let me interrupt. If the labor contract expires and is not renewed, but if you continue to stay, when will the double salary be calculated?" Sun Xing asked.

"This is a bit complicated, and the caliber of law enforcement in different places is not the same. Regarding the double salary after the labor contract has not been renewed, some places think that a grace period of one month should still be given, and the longest is eleven months; There should be no grace period, up to twelve months. It depends on the jurisdiction of the labor dispute case!" Wang Chuan said.

"Okay, I'm fine. Go on!" Sun Xing nodded.

"Again, regarding backdated or re-signed labor contracts, should the company pay double the wages.

If the company does not sign a written labor contract with the laborer at the beginning of employment, but signs a labor contract with the laborer after a few months or even longer, and the date of signing the labor contract is the day of signing, this method of signing It is "supplementary labor contract".

If the employee's signing date of the labor contract is the date of actual employment (that is, the day of employment), this kind of signing is a "backdated labor contract".

The main difference between "re-signed labor contract" and "backdated labor contract" is whether the date of payment of the signed labor contract is consistent with the actual employment date.

The actual date of employment in this case was January [-], [-], and the two parties signed a written labor contract on June [-], [-]. The labor contract period stated in the labor contract was from January [-], [-] From January [-], [-] to January [-], [-], the payment date is January [-], [-], which constitutes a "backdated labor contract"; if the payment date is June [-], [-], then It is "supplementary labor contract". "Wang Chuan said.

"Lawyer Wang, will backdating and re-signing affect the outcome of this case?" Situ Ting asked in confusion.

"Well, there is no difference in this case, but if it is within the statute of limitations of labor arbitration, it will be different.

In terms of effectiveness, if both parties sign a labor contract on a voluntary basis, as long as it does not violate the provisions of laws and regulations, whether it is an "backdated labor contract" or a "re-signed labor contract", it is valid.

However, within the labor arbitration statute of limitations, backdating will not involve double the wage difference, because the time of signature is on the date of actual employment, and it is deemed that the labor contract has been signed at the beginning of employment.It is no different from signing a normal labor contract.

Supplementary visas will involve the payment of double the salary difference.Because the date of signing the labor contract is not the date of actual employment, but the date of re-signing. There is still a blank period from the date of actual employment to the date of re-signing. During this blank period, no labor contract is signed. If you are still working Within the arbitration statute of limitations, the court will order the company to pay the employee twice the company’s difference during the blank period. " Wang Chuan explained.

"Understood!" Situ Ting nodded.

"Actually, as far as this case is concerned, there is no difference in essence whether it is an outdated contract or a supplementary contract. They should not be paid twice the salary on the date of signing the labor contract more than one month after the date of employment. Because it exceeds the labor arbitration aging.

However, in some areas such as this court in Henan Province, it is believed that "dated labor contracts" violate the provisions of the "Labor Contract Law" and cannot be exempted from double wages.

In my opinion, as long as there is no prohibitive provision in the law, the parties sign the labor contract on a voluntary basis, and it does not damage any legal rights of the laborer, the court should not interfere. "Wang Chuan said.

(End of this chapter)