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Interpretation of Labor Contract Law No. 30: Labor Remuneration

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Article 30 of the Labor Contract Law: The employer shall pay the labor remuneration in full and in time to the laborer in accordance with the labor contract and the state regulations.
If the employer defaults or fails to pay the labor remuneration in full, the laborer may apply to the local people's court for a payment order according to law, and the people's court shall issue a payment order according to law.

[The employer shall pay the labor remuneration in full and in time to the laborer in accordance with the labor contract and the state regulations. 】: Two keywords: “Timely” “Full”. Timely means paying at least once a month. Article 7 of the Interim Provisions on Wages Payment stipulates: “Wage shall be paid on the date agreed between the employer and the employee. In case of holidays or rest days, it shall be paid in advance on the most recent working day. The wage shall be paid at least once a month. Weekly, daily, and hourly wages can be paid on a weekly, daily, or hourly basis. "Wage is paid at least once a month, meaning that the pay period can be up to one month. In other words, last month's salary must be issued this month (must be sent before the last day of this month), can not be dragged to the next month (otherwise the payment cycle will become two months, illegal!).
In full , it means that the labor compensation should be sufficient.
The specific scope of "remuneration for labor" stipulates Article 53 of the "Opinions of the Ministry of Labor and Social Security on Implementing Certain Issues Concerning the Labor Law of the People's Republic of China": "Wage" in the Labor Law refers to the employer's The stipulations of the relevant regulations or labor contracts, the labor remuneration directly paid to the employees of the unit in the form of money, generally including timed wages, piece-rate wages, bonuses, allowances and subsidies, wages for extension of working hours, wages paid under special circumstances, etc. “Wage” is the main component of the labor income of the laborer . The following labor income of the laborer does not belong to the salary range : (1) The social insurance welfare expenses paid by the unit to the individual of the laborer, such as funeral and pension expenses and living allowances , family planning subsidies, etc.; (2) labor protection costs, such as the employer's work clothes, antidote, refreshing drinks, etc.; (3) various labor remuneration and other provisions not included in the total wages according to regulations Labor income, such as the invention award issued according to national regulations, the National Spark Award, the Natural Science Scholarship, Science and Technology Progress Award, Rationalization and Technology Improvement Award, China Skills Award, etc., as well as manuscript fees, lecture fees, translation fees, etc." ( Note: The concept of labor compensation in this law is equivalent to the concept of wages. . ) - I saw no, overtime pay (wage to extend working hours) is a statutory salary category, however, oh! In reality, there are a lot of overtime pay for overtime work. Moreover, laborers also advocate that overtime pay is also difficult, because Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (3) stipulates: "When a worker advocates overtime pay, he shall bear the existence of overtime work. The burden of proof.” This burden of proof undoubtedly increases the burden on the laborer. If the worker does not pay attention to retaining the evidence of overtime work, he or she must bear the adverse consequences of arbitration and failure of the lawsuit.
Full payment means: First, no lower than the minimum wage. Article 48 of the Labor Law stipulates: “The State implements a minimum wage guarantee system . The specific standards for minimum wages shall be prescribed by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government and reported to the State Council for the record. The wages paid by the employer shall not be lower than the local minimum. Wage standard. Second , no arbitrarily delinquent, deducted or discounted wages with other items. Article 50 of the Labor Law stipulates: "Wage shall be paid monthly to the employee himself in the form of money. The wages of the laborer shall not be deducted or unreasonably owed." If the
employer defaults or deducts wages, there will be certain punishments. : Article 3 of the "Measures for Economic Compensation for Violation and Termination of Labor Contracts" stipulates: "If the employer deducts or unreasonably defaults on the wages of the laborer, and refuses to pay the laborer to extend the working hour wages, the full amount shall be paid within the prescribed time limit. In addition to paying the wages of laborers, an economic compensation equivalent to 25 percent of the wages is required to be paid. "Article 85 of the Labor Contract Law stipulates: "If an employer has one of the following circumstances, The labor administrative department shall order labor payment, overtime pay or economic compensation within a time limit; if the labor remuneration is lower than the local minimum wage, the difference shall be paid; if it is not paid within the time limit, the employer shall be ordered to pay 50% or more of the amount payable. One hundred or less standards to pay compensation to workers : (1) failing to pay the labor remuneration of the laborer in full according to the labor contract or the state regulations; "It can be seen that the former is fined 25%, and the latter is fined 50%~100%. It is still very painful. However! In reality The law enforcement situation is not strict. From the case of the unpaid wages handled by the author, generally only employers who are in arrears of wages are required to pay wages, and there are very few fines in accordance with the above provisions.

[If the employer defaults or fails to pay the labor remuneration in full, the laborer may apply to the local people's court for a payment order according to law, and the people's court shall issue a payment order according to law. 】: This paragraph is a payment of wages. The arrears payment order is actually the use of the supervision procedure in the civil lawsuit - the payment order procedure. Although the entity is subordinate to the labor law, the application procedure actually applies the payment procedure in the Civil Procedure Law. Provisions (specified in Articles 214 to 217 of the Civil Procedure Law).

This program is specifically:

If the employer defaults or fails to pay the labor remuneration in full, if the laborer and the employer have no other debt disputes , and the payment order can be delivered to the debtor , the laborer may apply for a payment order to the local people's court with jurisdiction. The laborer shall state in the application the amount of the wages requested and the facts and evidence on which it is based. After the laborer applies, the people's court shall notify the laborer whether to accept it within five days . After accepting the application, the people's court shall, after reviewing the facts and evidence provided by the creditor, make a clear and legal relationship with the creditor's rights and debts, and shall issue a payment order to the employer within 15 days from the date of acceptance ; if the application is not established, the ruling shall be rejected. The employer shall pay off the debt within 15 days from the date of receipt of the payment order , or file a written objection to the people's court. If the employer does not raise an objection during the period specified in the preceding paragraph and fails to perform the payment order , the employee may apply to the people's court for enforcement. After the people's court has received a written objection from the employer, after the examination, if the objection is established, it shall decide the end of the supervision and promotion procedure, and the payment order shall be invalidated by itself. After the payment order is invalidated, the laborer may separately seek relief procedures (people's mediation, labor supervision, labor arbitration, etc.).

however! In reality, the payment of wages is almost a dead end! Even the payment order system in the civil lawsuit or the system of wage arrears in the sense of labor law has all been cold and ruined. For example, when I wrote this information, I found that between June 2008 and June 2011, the grassroots people's court in Taizhou, Zhejiang Province basically did not use the arrears payment procedure. The author also specifically asked the classmates working in a district court in Hezhou, Guangxi, to accept a small number of payment orders, and the answer was that he had never seen it in the past two years. The reason is very simple. The payment order has a fatal flaw: the people's court does not conduct substantive examination of the written objection filed by the employer , and only conducts formal examination. This means that as long as the other party files a substantive written objection (for example, directly claiming no wages), the court does not examine whether the grounds are true or not, and immediately terminates the procedure and the payment order expires . - This stipulates in Article 221 of the Opinions of the Supreme People's Court on the Application of Certain Issues in the Civil Procedure Law of the People's Republic of China: "According to Article 192 of the Civil Procedure Law, the debtor filed a written objection during the statutory period. If the people's court does not need to examine whether the objection has a reason, it should directly decide the end of the supervision procedure. The debtor has no objection to the debt itself, but merely proposes that the lack of liquidity does not affect the validity of the payment order. The debtor's verbal objection is invalid."


Note: Although the Opinions of the Supreme People's Court on the Application of Certain Issues Concerning the Civil Procedure Law of the People's Republic of China was published on February 4, 2015 by the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China. [2015] No. 5 regulations were abolished, but the new regulations still have no change in the formal review of written objections to payment orders. According to Article 217 of the new Civil Procedure Law: "After the People's Court has received a written objection from the debtor, upon examination, if the objection is established, it shall decide the end of the supervision procedure, and the payment order shall be invalidated by itself. If the payment order is invalid, it shall be transferred to the lawsuit. Procedure, except that the party applying for the payment order does not agree to file a lawsuit." - How then is it considered "objection established"? Article 437 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China stipulates: " After a formal examination , if the written objection filed by the debtor has one of the following circumstances, it shall be found that the objection is established and the decision is terminated. Procedure, the payment order shall be invalidated by itself: (1) The circumstances of the application for inadmissibility specified in this Interpretation; (2) The ruling specified in this Interpretation rejects the application; (3) The provisions of this Interpretation shall determine the circumstances of the termination of the supervision procedure; 4. The People's Court has reasonable doubts as to whether it meets the conditions for issuing payment orders." - In addition, if the wage payment order is invalid, it can be transferred to the proceedings. There is still no legal provision because the labor dispute in China must be pre-arbitrated ( Article 79 of the Labor Law), labor disputes cannot be directly litigated without arbitration. Therefore, it is very likely that after the payment order is called back, the court will directly ask you to go to arbitration, and then go back to the far point. It is better to arbitrate directly from the beginning...