I. Conditions for the Labor Arbitration Commission to accept labor arbitration
(1) To apply for arbitration, the following conditions shall be met:
1. belongs to the scope of accepting cases by labor and personnel dispute arbitration institutions;
2. There are clear arbitration claims and factual reasons;
3. The applicant is a natural person, legal person or other organization with a direct interest in the case, and there is a clear respondent;
It belongs to the jurisdiction of the Arbitration Commission.
(two) the scope of acceptance of the labor dispute arbitration commission.
According to the Law of People's Republic of China (PRC) on Mediation and Arbitration of Labor Disputes, this Law is applicable to the following labor disputes between employers and workers in People's Republic of China (PRC):
1. Disputes arising from the confirmation of labor relations;
2. Disputes arising from the conclusion, performance, alteration, dissolution and termination of labor contracts;
3. Disputes arising from delisting, dismissal, resignation and resignation;
4. Disputes arising from working hours, rest and vacation, social insurance, welfare, training and labor protection;
5. Disputes arising from labor remuneration, medical expenses for work-related injuries, economic compensation or compensation;
6. Other labor disputes stipulated by laws and regulations.
Second, the arbitration time limit for applying for labor arbitration
According to Article 27 of People's Republic of China (PRC) Labor Dispute Mediation and Arbitration Law, the limitation period for applying for labor dispute arbitration is one year. The limitation period for arbitration shall be counted from the date when the parties know or should know that their rights have been infringed.
The limitation of arbitration prescribed in the preceding paragraph shall be interrupted because one party claims the rights of the other party, or requests the relevant departments to provide rights relief, or the other party agrees to perform its obligations. The limitation of arbitration shall be recalculated from the time of interruption.
If the parties fail to apply for arbitration within the time limit stipulated in the first paragraph of this article due to force majeure or other legitimate reasons, the arbitration period shall be suspended. The limitation period of arbitration shall continue to be counted from the date when the reasons for suspension of limitation are eliminated.
If there is a dispute over the arrears of labor remuneration during the existence of labor relations, the employee's application for arbitration is not limited by the limitation period of arbitration stipulated in the first paragraph of this article; However, if the labor relationship is terminated, it shall be proposed within one year from the date of termination of the labor relationship.
As can be seen from the above provisions, the time limit for applying for labor arbitration is only one year, and the parties concerned should actively exercise their rights. Those who exceed the time limit for arbitration may not be protected by law.
Three. Jurisdiction (to which labor arbitration committee to apply)
According to the second paragraph of Article 21 of People's Republic of China (PRC) Labor Dispute Mediation and Arbitration Law, labor disputes shall be under the jurisdiction of the labor dispute arbitration committee in the place where the labor contract is performed or where the employer is located. Where both parties apply for arbitration to the labor dispute arbitration committee in the place where the labor contract is performed and the place where the employer is located, it shall be under the jurisdiction of the labor dispute arbitration committee in the place where the labor contract is performed. Therefore, if a labor dispute occurs, the applicant may apply to the labor dispute arbitration committee in the place where the labor contract is performed or where the employer is located for arbitration.
Four, apply for labor arbitration materials to be submitted
(a) the application for labor and personnel disputes
To apply for labor arbitration, the applicant must submit the original application to the labor and personnel dispute arbitration tribunal, and submit several copies of the application.
The application shall contain the following items:
1. The name, sex, age, occupation, work unit and domicile of the laborer, the name and domicile of the employer, and the name and position of the legal representative or principal responsible person;
2, the arbitration request and the facts and reasons on which it is based;
3, evidence and evidence sources, witness's name and domicile.
(2) identification documents
1. If a natural person applies for arbitration, it shall submit the original and photocopy of his/her ID card and the relevant registration materials of the applied enterprise. The registered data of local enterprises can be queried and printed in the "Dongguan Enterprise Credit Information Publicity System", and the registered data of enterprises outside the city (outside the province) can be queried and printed in the "National Enterprise Credit Information Publicity System".
2. If an enterprise applies for arbitration, it shall submit the original and photocopy of its business license, a photocopy of the applicant's ID card or other identification materials.
(3) Relevant evidential materials
Evidence related to the case, such as employment registration form, work card, labor contract, attendance record, payroll, factory discipline, factory regulations, etc.
Verb (abbreviation of verb) labor arbitration process and procedure
(1) filing stage.
1. After preparing the above materials, the applicant shall apply to the competent labor dispute arbitration commission for filing a case. After receiving the arbitration materials, the labor dispute arbitration commission shall, within five days from the date of receiving the application for arbitration, accept the case if it meets the acceptance conditions and notify the applicant; If it does not meet the acceptance conditions, it shall notify the applicant in writing that it will not be accepted and explain the reasons. If the labor dispute arbitration commission refuses to accept or fails to make a decision within the time limit, the applicant may bring a lawsuit to the people's court on the labor dispute.
2. Filing method: In addition to on-site filing, more and more places have also launched online filing applications.
A. file a case on the spot. Of course, bring the materials to the labor dispute arbitration commission to submit the materials for the record.
B. Online filing: In order to achieve the goal of "more data running, less people running errands", many local labor and personnel dispute arbitration committees have established online labor arbitration filing platforms, and applicants can apply for filing online through the platform. Online filing for consultation with local labor arbitration commission or local lawyer.
(2) Respondent stage.
1. After accepting the arbitration application, the labor dispute arbitration commission will send a copy of the arbitration application to the respondent within five days.
2. After receiving a copy of the application for arbitration, the respondent shall submit a statement of defense to the labor dispute arbitration committee within ten days, and submit evidence within the time limit for adducing evidence. After receiving the respondent's defense and evidence, the labor dispute arbitration commission shall serve the respondent with a copy of the defense and evidence within a specified time. The failure of the respondent to submit the written defense shall not affect the arbitration proceedings.
(3) the trial stage.
1. The arbitration tribunal will notify both parties of the date and place of the hearing in writing five days before the hearing. If the parties have justified reasons, they may request an extension of the hearing three days before the hearing. The extension or not shall be decided by the labor dispute arbitration commission.
2. After receiving the notice of the hearing, the applicant refuses to appear in court without justifiable reasons or withdraws from court without the consent of the arbitration tribunal, which may be regarded as withdrawing the arbitration application. If the respondent has been notified in writing and refuses to appear in court without justifiable reasons or withdraws from the court without the consent of the arbitration tribunal, it may make an award by default.
3. The parties have the right to cross-examine and debate in the arbitration process. After the cross-examination and debate, the presiding arbitrator or the sole arbitrator shall consult the final opinions of the parties.
4. If the evidence provided by the parties is verified, the arbitration tribunal shall take it as the basis for ascertaining the facts. If the laborer is unable to provide the evidence related to the arbitration request controlled and managed by the employer, the arbitration tribunal may require the employer to provide it within a specified time limit. If the employer fails to provide it within the prescribed time limit, it shall bear the adverse consequences.
5. The arbitration tribunal will record the hearing. If the parties and other arbitration participants think that there are omissions or errors in the records of their statements, they have the right to apply for correction. If no correction is made, the application shall be recorded.
6. After the parties apply for labor dispute arbitration, they can settle by themselves. If a settlement agreement is reached, the arbitration application may be withdrawn. Before the conciliation statement is served, if the conciliation fails or one party reneges, the arbitration tribunal shall make an award in time.
(4) the adjudication stage.
1. If mediation fails, the arbitration tribunal shall make an award according to law. For general cases, the arbitration tribunal will close the case within 45 days from the date of handling the acceptance procedures. If the case is complicated and needs to be postponed according to the complexity of the case, the arbitration tribunal may decide to extend it appropriately, but the extension period shall not exceed 15 days. During the trial, if there is a legal suspension, it will not be included in the closing time.
2. The award shall specify the arbitration claim, the disputed facts, 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.
(5) delivery stage.
1. After making the arbitration award, the arbitration tribunal shall serve the award on both parties, and both parties shall sign the receipt.
2. Remember, if the parties are not satisfied with the arbitration award, they must bring a lawsuit to the people's court within 15 days after receiving the arbitration award. If no prosecution is initiated within the time limit, it shall be deemed as recognition of the arbitral award, which has legal effect. Except for the final award, the company may not bring a lawsuit against the final award, and can only apply to the intermediate people's court for cancellation within 30 days from the day after receiving the arbitration award.
(6) execution
1. If both parties fail to bring a lawsuit to the court within the prescribed time limit, the arbitral award will become legally effective, and both parties shall perform their respective obligations according to the result of the arbitral award.
2. If one party refuses to perform, the other party may apply to the court for execution. Remember, the time limit for applying to the court for enforcement is two years.
6. Is there a charge for applying for labor arbitration?
According to Article 53 of People's Republic of China (PRC) Labor Dispute Mediation and Arbitration Law, there is no charge for labor dispute arbitration. The funds of the labor dispute arbitration commission shall be guaranteed by the finance.