Questions about labor arbitration, some questions about labor arbitration?

In the definition of minimum wage in the Minimum Wage Regulations, there are "four exclusions" of "separate payment", and there is also a concise explanation, which is called "the actual monthly labor remuneration shall not be less than the monthly minimum wage". Then we can summarize the three basic conditions for the composition of the minimum wage as follows:

First, the minimum wage should be measured in "months". That is to say, the so-called monthly minimum wage is calculated on a monthly basis, and must not be understood as the average monthly minimum wage every year, let alone divided by 12.

Of course, there is also the issue of the minimum wage, which we have already mentioned. Although some units have a monthly salary system, if an employee only works 15 days a month and takes personal leave for other working hours, and their local minimum wage is 580 yuan, then obviously his own minimum wage cannot be 580 yuan, but must be converted according to the standard, if this unit implements a 40-hour working hour system per week, first calculate that the standard working hours for one month are hours, and the converted hourly is yuan, then the minimum wage of this employee this month is yuan.

Second, it is necessary to identify the items that make up the wage, and then determine which elements should be listed and which should be excluded when used as the minimum wage. This condition is relatively important and complex, and there are many elements of the current wage structure, and we should strictly distinguish between items that do not belong to the minimum wage when analyzing these contents.

Third, the minimum wage must be calculated in monetary terms. China's Labor Law has long emphasized that the form of wages is "money". Some units will issue unsalable products produced by themselves for a while, and some debt-repaying commodities for the next time, and then convert them according to the market value to offset wages.

In kind, it cannot be counted as wages, and certainly not as minimum wages. Therefore, no matter how much food and supplies are distributed by the unit for various reasons this month, the cash salary paid is lower than the local minimum wage standard, which is a violation.

Lawyer Tips. Transportation and food allowances cannot be counted in the normal wage, and if the wages of the workers are paid below the local minimum wage standard, economic compensation shall be paid, and compensation may also be paid.

Legal basis. Labor Code

Article 48: "The State shall implement a minimum wage guarantee system. The specific standards of the minimum wage shall be prescribed by the people of the provinces, autonomous regions and municipalities directly under the Central Government, and shall be reported for the record. The wages paid by the employer to the employee shall not be lower than the local minimum wage. ”

Minimum Wage Regulations

The "minimum wage" in Article 48 of the Labor Law refers to the minimum labor remuneration paid by the employer on the premise that the employee has fulfilled his or her normal labor obligations within the statutory working hours. The minimum wage does not include wages and remuneration for extended working hours, housing and food subsidies paid by employers in monetary terms, allowances for special working environments and working conditions such as middle shifts, night shifts, high temperatures, low temperatures, underground, toxic and harmful, and social insurance benefits stipulated by national laws, regulations and rules."

1. If you have a conclusive basis to show that the company owes you overtime pay and the wages do not meet the minimum wage requirements issued by the local labor department, you should be compensated for the difference;

2. With regard to the 25% compensation, if it is in the nature of compensation, the arbitration institution may consider that you did not raise any objection when you received your salary for many months, so it can be regarded as an act that both parties are unaware of, and the other party is not deliberately at fault. But you should make up the difference.

3. If the arbitration can apply for reconsideration, it is recommended that you first strive for the difference in compensation for this part of the salary and overtime pay.

1. The statute of limitations for the recovery of overtime pay is one year, and the labor arbitration tribunal will not support it for more than one year.

2. If your salary is lower than the local minimum wage, you must indeed submit it in writing or appeal to the labor department.

First of all, after the occurrence of a labor dispute, workers can choose to go through the judicial process to claim their labor rights and interests, and now China implements a system of one adjudication and two trials, that is, after labor arbitration first, if you are not satisfied, you can sue, and if you are not satisfied, you can appeal. Then the final verdict is made. Labor arbitration litigation is a systematic project, divided into entities and procedures, the entity refers to the evidence and arbitration ideas of both parties and their own requirements and legal basis, etc., procedures such as case filing, jurisdiction, time limit for proof, etc In addition, labor disputes basically belong to the scope of civil litigation, and the adoption is who asserts who bears the evidence, that is to say, what issues you claim, you yourself take evidence to prove, and if you can't do so, you will bear the adverse consequences.

The law only stipulates that the company shall provide evidence for a few special points, that is, the burden of proof is reversed. At the same time, by the way, the law gives arbitrators or judges the right to investigate whether they can go to the company to investigate, but there is no obligation to stipulate it. According to the characteristics of labor disputes in the category of civil litigation, it is mainly the parties themselves to provide evidence, and only on the premise that the parties' own identities cannot obtain evidence, they can apply to arbitrators or judges to collect evidence, which is limited to a small scope, such as evidence stored in public security organs, confidentiality organs and other places.

In other cases, arbitrators or judges will not investigate and collect evidence. This is not the same as criminal proceedings. In the past, the statute of limitations for arbitration was 60 days, in order to be afraid of the statute of limitations, hurry up and file the case first, now it is 1 year, you have enough time to collect evidence, design arbitration ideas, and then screen evidence, so that you can take the initiative in arbitration.

Don't be too busy filing a case first. The filing of a case is only a procedure initiated by labor arbitration, and the filing of a case does not mean that the arbitral tribunal can help you solve the problem, and the arbitral tribunal is a neutral adjudication body that hears the case according to the arguments and evidence submitted by both parties. They generally do not take the initiative to investigate legal facts other than the evidence submitted.

In many places, such as the Beijing Haidian District Labor Dispute Arbitration Commission, Tongzhou District Labor Dispute Arbitration Commission, Dongcheng District Labor Dispute Arbitration Commission, etc., only need the worker to provide a written labor arbitration and a copy of the ID card. There are also some disadvantages to not being fully prepared to file a case, for example, many labor dispute arbitration commissions in Beijing are implementing the issue of the time limit for presenting evidence, such as the Beijing Haidian District Labor Dispute Arbitration Commission, the Tongzhou District Labor Dispute Arbitration Commission, etc., that is to say, once you are not fully prepared, according to the law, after the time limit for presenting evidence, the parties cannot submit new evidence, and the adverse consequences caused by the parties themselves shall be borne by themselves.

The first thing to do is to determine what kind of work you do in your company and what kind of company your company is. In some cases, for example, if you are engaged in a job that completes a certain task, it is not suitable to sign an indefinite employment contract.

Secondly, it depends on how long the company has not signed a contract with you.

If the labor contract is signed after one month from the date of employment, 11 months shall be counted from the next month, and the monthly double salary shall be calculated. After one year, it will be deemed that the company has signed an indefinite employment contract for you. This contract cannot be terminated unless it is provided for by law.

Whether or not to apply for arbitration from now on will not affect your rights.

Of course, it depends on what kind of employment contract the company signs with you.

If the contract itself is okay, it will not affect your rights, and you can now ask the company to sign an indefinite employment contract for you.

Article 85 of the Labor Contract Law stipulates that if an employer falls under any of the following circumstances, the labor administrative department shall order it to pay labor remuneration, overtime pay or economic compensation within a time limitIf the labor remuneration is lower than the local minimum wage, the employer shall be ordered to pay additional compensation to the employee according to the standard of 50% to 100% of the amount payable

1) Failure to pay the labor remuneration of the worker in full and in a timely manner in accordance with the provisions of the labor contract or the provisions of the state;

2) Paying wages to workers lower than the local minimum wage standard;

3) Arrange overtime without paying overtime pay;

4) Dissolving or terminating a labor contract without paying economic compensation to the worker in accordance with these Regulations.

To give you a **, you can find a lawyer by region, by specialty.

In November 2009, his friend filed an arbitration with the Labor Bureau because the company had not insured him for two years. The Labor Bureau only granted ** in November 2010. The process is as follows:

1. After the end of the month, the Labor Bureau issued an arbitration award to my friend, who was satisfied with the arbitration result, but the company did not make any statement

2. When the friend consulted the Labor Bureau about whether it could be based on the arbitration result, the Labor Bureau said that it did not know the company's opinion, and they only provided the arbitration result

3. The friend was ready to file a lawsuit with the court, but the labor bureau said that the company might have filed a lawsuit, but it was still unknown whether the company had any objections to the arbitration result.

My questions are as follows:

1. After the arbitration result of the Labor Bureau comes out, if an individual or enterprise has any objection to the arbitration result, should the arbitration department be notified, or should the arbitration department notify the individual or enterprise that the other party does not agree with the arbitration result?If this is done indefinitely (2 months after the date of the result), is it detrimental to the individual (e.g. beyond certain judicial time limits)?

2. If the arbitration time of the Labor Bureau exceeds the arbitration application time for nearly one year, is it a violation or administrative inaction of the Labor Bureau?

3. If my friend files a lawsuit with the court, can I consider bringing the labor bureau to the court together?

4. Is there a statute of limitations for the enforcement of arbitration results?

5. If a lawsuit is filed, can the claim exceed the claim made at the time of arbitration?

Go to a local law firm and find a qualified lawyer to help you fight the lawsuit, and you can win the lawsuit.

In this case, apply for arbitration and wait for the outcome.

First of all, he had a conflict with his colleagues in the company, and then asked someone to beat him, which was suspected of seriously violating labor discipline.

Article 25 of the Labor Law stipulates that if an employee "seriously violates labor discipline or the rules and regulations of the employer", the employer may unilaterally terminate the labor contract.

Article 35 of the Labor Contract Law stipulates that if an employee "seriously violates the rules and regulations of the employer", the employer may terminate the labor contract.

Therefore, the company may be able to support the dismissal of you if it finds out.

Secondly, according to Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, the employer bears the burden of proof in the event of a labor dispute arising from the employer's decision to dismiss, dismiss, dismiss, terminate the labor contract, reduce the labor remuneration, calculate the employee's working years, etc.

In other words, the company should first provide evidence to prove the existence of relevant rules and regulations, in which "beating company cadres" is a serious violation of labor discipline, and the system has been voted on and informed to you.

Otherwise, the company can't fire you.

Thirdly, since you have initiated arbitration, it is sufficient to make a claim based on the relevant facts, and the specific request may include:

1. Request for payment of outstanding wages;

2. Request for payment of double wages for unsigned labor contracts;

3. Request for payment of severance for illegal termination of labor contract;

4. Request for payment of one month's salary in lieu of notice;

5. Request for supplementary payment of social security fees.

Even if the company's reasons for dismissal are ultimately established, the above claims 1, 2, and 5 should be upheld in accordance with the law.

About five months of basic salary, plus three years of social security.