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China Labor Law- Settlement of Labor Disputes part 2: Labor Arbitration

Time:2014-03-13 Hit:199


  China Labor Law- Settlement of Labor Disputes Part 2: Labor Arbitration  


A labor dispute shall be subject to the jurisdiction of the labor dispute arbitration commission at the place where the labor contract is performed or the place where the employer is located. The labor arbitration committee under the labor administration is set up at the county level. There shall be an odd number of personnel on the labor arbitration committee. The responsible person from the labor administration chairs it. However, for a simple arbitration case, one arbitrator may trial the case. The arbitration process is free of charge since the implementing of the Labor Contract Law and Law on Mediation and Arbitration of Labor Disputes in 2008. The local government shall finance the arbitration body and its daily operation.


 The labor arbitration committee implements a system of arbitrators and arbitration tribunals for handling labor disputes. The labor arbitration committee may hire personnel of the labor administration or of other relevant government departments, trade unionists, experts, scholars with at least 5 years of professional experience and lawyers with at least three years of licensed practice as full or part-time arbitrators. The arbitration tribunal normally consists of three arbitrators, and one arbitrator may deal with simple disputes.


 A party is required to apply in writing to the labor arbitration committee for arbitration within 60 days from the date of the occurrence of the labor dispute. However, the Labor Contract Law stipulates that the time limit for application for arbitration in labor disputes is one year, calculated from the date when the parties to the dispute know or should have known the infringement of their rights. The labor arbitration committee shall normally make an arbitration award within 45 days of acceptance of an application for arbitration. Fifteen days for an extension as a maximum may be granted by the head of the labor arbitration committee in accordance with the Law on Mediation and Arbitration of Labor Disputes of 2007.


 During the process of arbitration, mediation is conducted first. If an agreement can be reached voluntarily after mediation, the labor arbitration tribunal will prepare a mediation statement based on the contents of the agreement. The mediation statement made by the labor arbitration tribunal shall be effective as of the date of delivery and is enforceable in the courts according to Article 31of the 1993 Regulations on the Settlement of Labor Dispute in Enterprises.


 If no agreement is reached or the party changes its mind before the mediation statement has been delivered, the labor arbitration tribunal shall make an arbitration award on time. The arbitration award can either confirm or overrule an administrative decision made by an employer and provide him with arbitration suggestions regarding that administrative decision. To those disputes involved in economic compensation, the arbitration award may modify a previous administrative measure imposed on an employee based on the enterprise's internal rule. The arbitration award shall have a legal binding force if the case is not brought before the court within 15 days. When one party files a suit within the lawful period nor complies with the arbitration award, the other party may apply to the people's court for enforcement of the award.


 The enforcement of an arbitration award or mediation statement will be subject to examination and verification by the courts. In accordance with China Civil Procedure Law, the court may refuse the recognition of an arbitration award on the ground that the matter of arbitration exceeds the scope of the jurisdiction of the arbitration tribunal, the composition of the arbitration tribunal or the arbitrate proceedings violate the legal procedure, or because of insufficient evidence and incorrect application of the law. If the court notifies to the parties its decision not to enforce an arbitration award or an effective mediation statement, the court shall also notify the parties that the labor dispute may be brought before the court for court trail.

Author: Shanghai Lawyer



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