The burden of proof in a labor dispute regarding the wages paid by the employer to the employee

First. You can apply for the "principle of reversal of evidence" in labor arbitration, and ask the arbitrator to request the collection of evidence in the hands of the employer. Reason: Ministry of Labor and Social Affairs No. 12, 2005.

Labor and Social Security Departments (Bureaus) of all provinces, autonomous regions and municipalities directly under the Central Government:

Recently, some localities have reported that some employers do not sign labor contracts when recruiting workers, and when labor disputes arise, it is difficult to determine the labor relationship between the two parties, making it difficult to safeguard the legitimate rights and interests of employees, which has an adverse impact on the harmony and stability of labor relations. In order to standardize the employment behavior of employers, protect the legitimate rights and interests of workers, and promote social stability, the following notice is hereby given on matters related to the establishment of labor relations between employers and workers:

1. The employment relationship shall be established if the employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances:

1) The employer and the worker meet the entity qualifications prescribed by laws and regulations;

2) The labor rules and regulations formulated by the employer in accordance with the law shall apply to the workers, and the workers shall be subject to the labor management of the employer and engage in paid labor arranged by the employer;

3) The labor provided by the worker is an integral part of the employer's business.

2. If the employer has not signed a labor contract with the employee, the following documents may be referred to when determining the existence of an employment relationship between the two parties:

1) Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums;

2) "Work Permit", "Service Certificate" and other documents that can prove the identity of the worker issued by the employer;

3) Recruitment records such as the "registration form" and "registration form" filled in by the worker;

4) Attendance records;

5) Testimony of other workers, etc.

Among them, the employer shall bear the burden of proof for the relevant documents in items (1), (3) and (4).

3. If the employer recruits a worker in accordance with the circumstances specified in Article 1, the employer shall sign a supplementary labor contract with the employee, and the term of the labor contract shall be determined by both parties through consultation. If there is no agreement through negotiation, either party may propose to terminate the employment relationship, but for the employee who meets the conditions for signing an indefinite-term labor contract, if the employee proposes to conclude an indefinite-term labor contract, the employer shall conclude it.

If the employer proposes to terminate the labor relationship, it shall pay the employee one month's salary for each full year of service in the employer.

4. Where an employer such as a construction or mining enterprise contracts out a project (business) or management right to an organization or natural person that does not have the qualifications of an employing entity, the employer with the qualifications of an employing entity shall bear the responsibility for employing the laborers recruited by the organization or natural person.

5. If a dispute arises between the employee and the employer over the existence of an employment relationship, he or she may apply to the labor dispute arbitration commission with jurisdiction for arbitration.

It should be taken out by the employer, if you have a dispute because of the amount of wages, and it is unwilling to take out the account book, it can be considered that it has not paid you wages, so it is considered a salary arrears, so I don't think you need to worry about this.

Each factory should have a wage schedule for wages, and the worker must sign it when receiving the salary, and the employer should keep it and be responsible for the main certificate

Is there any evidence for the figures you're presenting? If there is another figure that the defendant has come up with, it should have been provided by the employer.

Pursuant to the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings

Article 6 In the case of a labor dispute, if a labor dispute arises due to the employer's decision to dismiss, dismiss, dismiss, terminate the labor contract, reduce the labor remuneration, calculate the number of years of service of the employee, etc., the employer shall bear the burden of proof. Therefore, the employer bears the burden of proof as to the question of "how much wages have been paid to the employee" in this case.

The employer shall provide evidence in accordance with the law.

Legal analysis: Generally speaking, the parties bear the burden of proof for the matters they claim, but in the case where the relevant evidence is in the possession of the other party, there is a time limit for the reversal of the burden of proof. In labor disputes, the parties have the responsibility to provide evidence for their own claims.

If the evidence related to the disputed matter is in the possession and management of the employer, the employer shall provide it.

Legal basis: Article 6 of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes In the event of a labor dispute, the parties have the responsibility to provide evidence for their own claims. If the evidence related to the disputed matter is in the possession and management of the employer, the employer shall provide it. If the employer does not provide it, it shall bear the adverse consequences.

Since labor disputes are quite different from ordinary civil disputes, although the basic principle of who asserts and who provides evidence is still followed in the process of handling labor disputes, the law stipulates that the employer, as the subject of one party, bears more and greater burden of proof under certain special circumstances, taking into account factors such as the ability of both parties to present evidence and the control of evidence. The details are as follows:

1. Evidence of the employer's mastery of management.

According to the Labor Dispute Mediation and Arbitration Law, if the evidence related to the disputed matter is in the possession and management of the employer, the employer shall provide it; If the employer does not provide it, it shall bear the adverse consequences. In addition, it is stipulated that the tribunal may designate a time limit for the employer to provide the above-mentioned evidence, and if the employer fails to provide such evidence within the specified time limit, it shall bear the adverse consequences. According to this provision, the employer bears the burden of proof for the evidence it has in its possession and management, such as attendance, salary payment, social insurance payment, etc.

This means that the employer should properly establish and improve the rules and regulations, and implement and enforce them; Relevant evidence must not only be present, but also complete, otherwise once a dispute occurs, it will bear the adverse consequences of not being able to provide evidence.

2. If the employer and the employee have not signed a labor contract, the employer shall bear the burden of proof for the following relevant documents to establish the labor relationship.

1) Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums;

2) Recruitment records such as the employer's recruitment registration form and registration form filled in by the worker;

3) Attendance records.

3. The employer shall bear the burden of proof for labor disputes arising from the employer's decision to dismiss, remove, dismiss, terminate the labor contract, reduce labor remuneration, calculate the employee's working years, etc.

According to the judicial interpretation of the Supreme People's Court, an employer shall provide evidence for its decisions on dismissal, dismissal, dismissal, termination of labor contract, reduction of labor remuneration, calculation of the employee's working years, etc., to prove that it complies with the relevant laws and regulations, otherwise it shall bear adverse consequences.

Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes

Article 4 In the event of a labor dispute, the worker may negotiate with the employer, or may ask the labor union or a third party to negotiate with the employer to reach a settlement agreement.

Article 5 In the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation; If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration; If a person is dissatisfied with an arbitral award, he or she may file a lawsuit in the people's court, except as otherwise provided by this Law.

Lawyer answersThe burden of proof shall be borne by the employer.

Lawyer analysisThe burden of proof shall be borne by the employer.

In civil litigation cases, if a party has evidence to prove that one party has evidence and refuses to provide it without justifiable reasons, if the other party asserts that the content of the evidence is unfavorable to the holder of the evidence, it may be presumed that the claim is established.

The burden of proof should be borne by the employer in a labor dispute over whether or not to pay wages.

If the employer cannot prove that it has paid the labor wages, it shall bear the adverse consequences.

Legal basisInterim Provisions on Payment of Wages".

The employer may entrust the bank to pay the wages on behalf of the employer.

The employer must record in writing the amount and time of payment of the worker's wages, the name and signature of the recipient, and keep it for at least two years for future reference.

When paying wages, the employer shall provide the employee with a list of his or her personal wages.

The parties have the burden of providing evidence to prove the facts on which their own arbitration claim is based, or on which the other party's arbitration claim is based. Due to the asymmetry between the parties in labor dispute arbitration, the burden of proof of the parties is determined in accordance with the principles of fairness and good faith. 1. In the event of a labor dispute arising from the dismissal, dismissal, or termination of the labor contract by the employer, or the employee's request to terminate the labor contract, the employer shall bear the burden of proof.

2. In the event of a labor dispute arising from the employer's payment of labor remuneration, refusal to pay social insurance premiums in accordance with the law, or calculation of the employee's working years, the employer shall bear the burden of proof. 3. In the event of a labor dispute due to the destruction of labor conditions provided by the employer, the employer shall bear the burden of proof. 4. In the event of a labor dispute arising from a labor contract, the party claiming that the labor contract relationship has been established and taken effect shall bear the burden of proof for the fact that the labor contract has been concluded and entered into force; The party claiming the modification, rescission or termination of the labor contract shall bear the burden of proof for the facts that caused the change in the labor contract relationship.

In the event of a dispute as to whether or not the labor contract is to be performed, the party with the obligation to perform shall bear the burden of proof. 5. In the event of a labor dispute arising from work-related injury benefits, the party making the arbitration claim shall bear the burden of proof. 6. If a labor dispute arises due to the death of an employee and the employee's family claims the treatment of the surviving family, the employee's family shall bear the burden of proof.

Proof of their relationship with the employee and their ability to appeal to the applicant. 7. In the event of a dispute over the recovery of training fees, the party making the arbitration claim shall bear the burden of proof.

Article 39 of the Labor Dispute Mediation and Arbitration Law provides that if the evidence provided by the parties is verified to be true, the arbitral tribunal shall take the evidence as the basis for determining the facts. If the employee is unable to provide evidence related to the arbitration claim that is in the possession and management of the employer, the arbitral tribunal may require the employer to provide such evidence within a specified time limit. If the employer fails to provide such information within the specified time limit, it shall bear the adverse consequences.