The Special Provisions on Labor Protection of Female Employees stipulates that the employer shall not reduce the salary of female employees or terminate their labor contracts because of pregnancy, childbirth and breastfeeding, thus legally ensuring that maternity leave for women is paid vacation.
Wages during maternity leave are paid as follows:
1. If you do not participate in maternity insurance, the maternity leave salary shall be paid by the employer according to the standard of the salary before maternity leave.
2. If you have participated in maternity insurance, you can enjoy maternity allowance during maternity leave. This is your maternity leave salary, which will be paid by the maternity insurance fund. Maternity allowance is higher than my original salary standard of the employer shall not be deducted; The difference between the maternity allowance and my original salary standard shall be made up by the employer.
The maternity allowance that employees should enjoy is calculated and paid according to the average monthly salary of employees in the previous year divided by 30 and multiplied by the prescribed number of vacation days. That is, maternity allowance = (the average monthly salary of employees in the previous year) ÷30× the number of days off.
If it is a sales position, the sales commission is generally not included in the salary standard before maternity leave.
The salary before maternity leave should include the salary for normal attendance, that is, all wages except overtime.
Performance pay is generally included in the pre-pregnancy wage standard to calculate maternity allowance.
Guangzhou Intermediate People's Court of Guangdong Province (202 1) Guangdong 0 1 Minzhong No.8809 civil judgment.
The focus of the dispute in this case is: Does maternity leave pay include performance pay? The court held that maternity leave salary is the average salary of workers before maternity leave, and performance salary is a part of workers' salary income. Guangli Company claims that the calculation of maternity leave salary should not include performance salary.
Generally, the sales commission will not be included in the maternity allowance calculated by the salary standard before maternity leave.
Shanghai No.2 Intermediate People's Court (202 1) No.6033 Shanghai Zhongmin No.02 Civil Judgment.
The focus of the dispute in this case is whether Du Mou's sales commission is included in his "salary before maternity leave". The court held that although the sales commission is an important part of Du's labor remuneration, its calculation and payment are different from other wages with labor as the consideration. The sales commission is based on Du Mou's labor achievements, and there is great uncertainty, which is not the salary that Du Mou can expect to perform his basic attendance obligations. Therefore, the sales commission should not be included in the salary standard before Du Mou's maternity leave to calculate the maternity allowance.
To sum up, it is Bian Xiao's answer to the question "Is there a chance to win the maternity leave wage arbitration?" I hope it can help you.
Legal basis:
People's Republic of China (PRC) labor dispute mediation and arbitration law
Article 45 An award shall be made in accordance with the opinions of the majority of arbitrators, and the different opinions of a few arbitrators shall be recorded in the record. When the arbitration tribunal cannot form a majority opinion, the award shall be made in accordance with the opinion of the presiding arbitrator.
Article 46 An award shall clearly state the arbitration claim, the facts of the dispute, the reasons for the award, the award result and the date of the award. The award shall be signed by the arbitrator and stamped with the seal of the Labor Dispute Arbitration Commission. The arbitrator who disagrees with the award may or may not sign.
Article 47 The arbitration award of the following labor disputes is final and takes legal effect as of the date of making it, except as otherwise provided by this Law:
(a) labor remuneration, medical expenses for work-related injuries, economic compensation or the amount of compensation not exceeding the local minimum monthly wage 12 months;
(two) disputes arising from the implementation of national labor standards in terms of working hours, rest and vacation, social insurance, etc.
Article 48 A laborer who refuses to accept the arbitration award stipulated in Article 47 of this Law may bring a lawsuit in a people's court within 15 days from the date of receiving the arbitration award.
Article 49 If the employer has evidence to prove that the arbitration award stipulated in Article 47 of this Law has any of the following circumstances, it may, within 30 days from the date of receiving the arbitration award, apply to the Intermediate People's Court where the labor dispute arbitration commission is located for cancellation of the award:
(a) the application of laws and regulations is indeed wrong;
(two) the labor dispute arbitration commission has no jurisdiction;
(3) Violating legal procedures;
(4) The evidence on which the award is based is forged;
(5) The other party has concealed enough evidence to affect judicial justice;
(6) An arbitrator, in arbitrating a case, commits bribery, engages in malpractices for personal gain or perverts the law.
The people's court shall form a collegial panel to examine and verify, and if it considers that the ruling is under any of the circumstances specified in the preceding paragraph, it shall make a ruling to revoke it.
If the arbitral award is revoked by the people's court, the parties may bring a lawsuit to the people's court within 15 days from the date of receiving the award.
Article 50 If a party refuses to accept the arbitration award of other labor dispute cases other than those stipulated in Article 47 of this Law, he may bring a lawsuit to the people's court within 15 days from the date of receiving the arbitration award; If no prosecution is brought at the expiration of the time limit, the ruling will take legal effect.
Article 51 The parties shall perform a legally effective conciliation statement or award within the prescribed time limit. If one party fails to perform within the time limit, the other party may apply to the people's court for execution in accordance with the relevant provisions of the Civil Procedure Law. The people's court that accepts the application shall execute it according to law.