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China Labor Law- Settlement of Labor Disputes part 1

Time:2014-03-13 Hit:190


China Labor Law- Settlement of Labor Disputes part 1


  If a labor dispute occurs between an employer unit and a worker, the parties concerned may, in accordance with the law, apply for conciliation or arbitration, file a suit in the People's Court or settle the dispute through consultation.

  In 2007, the Standing Committee of the NPC promulgates the Law of People's Republic of China on Mediation and Arbitration of Labor Disputes, which became effective on 1 May 2008. The law applies to the settlement of labor disputes between employing units and laborers within the territory of the People's Republic of China. According to the law, the following labor relationship shall be subject to the law:

1. Disputes arising from the confirmation of the labor relations

2. Disputes arising from the conclusion, performance, variation, rescission or termination of a labor contract

3. Disputes arising from the dismissal, resignation and leaving

4. Disputes arising from the working hours, rest period and leave, social insurance, welfare, training, and labor protection

5. Dispute arising from the labor remuneration, work injury medical expenses, economic compensation or damages, etc

Labor contractual disputes are described as disputes arising from the performance of the labor contract. Disputes arising from the performance of the labor contract were interpreted by the former Ministry of Labor as being disputes in implementation, modification, revocation, and termination of the labor contract.


Mediation and Arbitration:


Mediation:

  Voluntary consultations between the parties themselves, mediation and arbitration are alternative means of solving labor disputes outside the courts. It is up to the parties to choose directly to settle disputes either through arbitration or mediation. If the parties cheese to solve their labor disputes by mediation with their enterprise's labor disputes mediation committee, the committee must conclude the mediation within 30 days after the application for mediation has been accepted by the committee. If the dispute is not settled within that period, the mediation will be deemed to have failed.

  However, the parties are still able to apply to an arbitration committee for arbitration. In accordance with the 1993 Organization and Working Rules of the Enterprises' Labor Disputes Mediation Committee, the mediation committee consists of representatives for the workers, the enterprise's trade union. The enterprise's trade union representative chairs the committee. The number of representatives for the enterprise must not exceed one-third of the total number of members of the mediation committee.

  In mediating labor disputes, the mediation committee shall follow the principle of voluntary participation of the two parties. If an agreement is reached upon mediation, a written mediation agreement shall be signed by the two parties and the chairman of the mediation committee and stamped by the mediation committee. The mediation agreement shall be implemented by the parties. If the mediation has failed, a written mediation opinion shall record the situation mediation committee. If no mediation agreement is reached within 15 days upon the receipt of the mediation application, either party may submit the dispute for arbitration. The mediation agreement on matters relating to monetary or compensatory payment is enforceable by the court directly in accordance with the Law on Mediation and Arbitration of Labor Disputes of 2007.


Author: Shanghai Lawyer


shanghai attorney