People's Republic of China Labor Dispute Mediation and Arbitration Law
Table of Contents
Chapter I: General Provisions
Chapter II: Mediation
Chapter III: Arbitration
Section 1: Ordinary Provisions
Section 2: Application and Acceptance
Section 3: Hearings and rulings
Chapter IV: Supplementary Provisions
Chapter I: General Provisions
Article 1: [Legislative Purpose] This Law is enacted for the purpose of resolving labor disputes in a fair and timely manner, protecting the lawful rights and interests of the parties, and promoting harmonious and stable labor relations.
Article 2: [Scope of Application]This Law shall apply to the following labor disputes between employers and workers within the territory of People's Republic of China:
(1) Disputes arising from the confirmation of labor relations;
(2) Disputes arising from the conclusion, performance, modification, rescission or termination of labor contracts;
(3) Disputes arising from removal, dismissal, resignation, or resignation;
(4) Disputes arising from working hours, rest and vacation, social insurance, welfare, training, and labor protection;
(5) Disputes arising from labor compensation, medical expenses for work-related injuries, economic compensation or compensation, and so forth;
(6) Other labor disputes as provided for by laws and regulations.
Article 3 [Principles for the Settlement of Labor Disputes] The settlement of labor disputes shall be based on the facts, follow the principles of legality, fairness, timeliness, and emphasis on mediation, and protect the lawful rights and interests of the parties in accordance with the law.
Article 4 [Negotiation and Settlement of Parties to Labor Disputes] In the event of a labor dispute, the worker may negotiate with the employer, or may ask the labor union or a third party to jointly negotiate with the employer and reach a settlement agreement.
Article 5 [Basic Procedures for the Handling of Labor Disputes] In the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation; If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration; If a person is dissatisfied with an arbitral award, he or she may file a lawsuit in the people's court, except as otherwise provided by this Law.
Article 6 [Burden of Proof] In the event of a labor dispute, the parties have the responsibility to provide evidence for their own claims. If the evidence related to the disputed matter is in the possession and management of the employer, the employer shall provide it; If the employer does not provide it, it shall bear the adverse consequences.
Article 7 [Representative System for Labor Dispute Settlement] Where there are more than 10 workers in the event of a labor dispute and there is a joint request, representatives may be nominated to participate in mediation, arbitration or litigation activities.
Article 8 [Tripartite Mechanism for Coordinating Labor Relations for the Settlement of Labor Disputes] The labor administrative departments of the people's governments at or above the county level shall establish a tripartite mechanism for coordinating labor relations with representatives of trade unions and enterprises, to jointly study and resolve major issues in labor disputes.
Article 9 [Labor Inspection] Where an employer violates state regulations by defaulting on or failing to pay labor remuneration in full, or by defaulting on medical expenses, economic compensation or compensation for work-related injuries, the worker may file a complaint with the labor administrative department, which shall handle it in accordance with law.
Chapter II: Mediation
Article 10: [Mediation Organizations] In the event of a labor dispute, the parties may apply for mediation to the following mediation organizations:
(1) Enterprise Labor Dispute Mediation Committee;
(2) Basic-level people's mediation organizations established in accordance with law;
(3) Organizations established in townships and neighborhoods with labor dispute mediation functions.
The enterprise labor dispute mediation committee is composed of employee representatives and enterprise representatives. Employee representatives shall be appointed by members of the trade union or elected by all employees, and enterprise representatives shall be designated by the person in charge of the enterprise. The director of the enterprise labor dispute mediation committee shall be a member of the trade union or a person nominated by both parties.
Article 11 [Conditions for Serving as a Mediator] The mediators of labor dispute mediation organizations shall be adult citizens who are fair and upright, have contact with the masses, are enthusiastic about mediation, and have a certain level of legal knowledge, policy and education.
Article 12 [Application for Mediation] The parties may apply for labor dispute mediation in writing or orally. Where an oral application is made, the mediation organization shall record the applicant's basic information, the disputed matters for mediation, the reasons and the time for applying for mediation on the spot.
Article 13: [Methods of Mediation] In mediating labor disputes, the parties shall be fully heard from their statements of facts and reasons, patiently counseled, and helped them reach an agreement.
Article 14: [Mediation Agreement]Where an agreement is reached through mediation, a mediation agreement shall be drafted.
The mediation agreement shall be signed or sealed by both parties, and shall take effect after being signed by the mediator and affixed with the seal of the mediation organization, and shall be binding on both parties and shall be performed by the parties.
If no mediation agreement is reached within 15 days from the date of receipt of the mediation application by the labor dispute mediation organization, the parties may apply for arbitration in accordance with law.
Article 15: [Application for Arbitration] After a mediation agreement is reached, if one party fails to perform the mediation agreement within the time limit specified in the agreement, the other party may apply for arbitration in accordance with law.
Article 16: [Payment Order]Where a mediation agreement is reached for the payment of arrears of labor remuneration, medical expenses for work-related injuries, economic compensation, or compensation, and the employer fails to perform within the time limit agreed in the agreement, the worker may apply to the people's court for a payment order in accordance with law with the mediation agreement. The people's court shall issue a payment order in accordance with law.
Chapter III: Arbitration
Section 1: Ordinary Provisions
Article 17 [Establishment of Labor Dispute Arbitration Commission] The labor dispute arbitration commission shall be established in accordance with the principles of overall planning, reasonable layout and adaptation to actual needs. The people's governments of provinces and autonomous regions may decide to establish them in cities and counties; The people's governments of municipalities directly under the Central Government may decide to establish them in districts and counties. Municipalities directly under the Central Government and cities divided into districts may also establish one or more labor dispute arbitration commissions. Labor dispute arbitration commissions are not established at different levels according to administrative divisions.
Article 18: [Formulating Arbitration Rules and Guiding Labor Dispute Arbitration] The labor administrative department of the State Council formulates arbitration rules in accordance with the relevant provisions of this Law. The labor administrative departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall guide the labor dispute arbitration work in their respective administrative regions.
Article 19 [Composition and Responsibilities of the Labor Dispute Arbitration Commission] The Labor Dispute Arbitration Commission shall be composed of representatives of the labor administrative department, the trade union and the enterprise. The composition of the labor dispute arbitration commission shall be an odd number.
The labor dispute arbitration commission shall perform the following duties in accordance with the law:
(1) to appoint or dismiss full-time or part-time arbitrators;
(2) Accept labor dispute cases;
(3) Discuss major or difficult labor dispute cases;
(4) Supervise arbitration activities.
The Labor Dispute Arbitration Commission has an office responsible for handling the daily work of the Labor Dispute Arbitration Commission.
Article 20 [Qualifications of Arbitrators] The labor dispute arbitration commission shall establish a roster of arbitrators.
The arbitrator shall be fair and upright and meet one of the following conditions:
(1) Those who have served as adjudicators;
(2) Those who are engaged in legal research or teaching work and have an intermediate title or above;
(3) Those who have legal knowledge and have been engaged in professional work such as human resources management or trade unions for at least five years;
(4) Lawyers have practiced law for three years.
Article 21 [Jurisdiction of Arbitration] The labor dispute arbitration commission shall be responsible for the jurisdiction of labor disputes occurring in the region.
Labor disputes shall be under the jurisdiction of the labor dispute arbitration commission at the place where the labor contract is performed or where the employer is located. If both parties apply for arbitration to the labor dispute arbitration commission at the place where the labor contract is performed and the place where the employer is located, the labor dispute arbitration commission at the place where the labor contract is performed shall have jurisdiction.
Article 22 [Parties to Arbitration Cases] The workers and employers involved in labor disputes shall be the parties to the labor dispute arbitration case.
In the event of a labor dispute between a labor dispatch unit or an employing unit and a worker, the labor dispatch unit and the employing unit shall be joint parties.
Article 23 [Third Party in Arbitration Cases] A third party who has an interest in the outcome of a labor dispute case may apply to participate in the arbitration or be notified by the labor dispute arbitration commission to participate in the arbitration activity.
Article 24 [Entrustment of Representation] The parties may entrust an agent to participate in arbitration activities. If a person is entrusted to participate in arbitration activities, a power of attorney signed or sealed by the client shall be submitted to the labor dispute arbitration commission, and the power of attorney shall clearly state the matters and authority of the entrustment.
Article 25 [Legally-Designated Agents and Designated Agents] Laborers who have lost or partially lost their capacity for civil conduct shall have their legally-designated representatives participate in arbitration activities on their behalf; If there is no legal agent, the labor dispute arbitration commission shall appoint an agent for him. In the event of the death of a worker, his close relatives or agents shall participate in the arbitration.
Article 26 [Disclosure of Arbitration] Labor dispute arbitration shall be conducted publicly, except where the parties agree not to conduct it publicly, or where state secrets, commercial secrets, and personal privacy are involved.
Section 2: Application and Acceptance
Article 27 [Limitation for Arbitration] The limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date on which the parties knew or should have known that their rights had been infringed.
The statute of limitations for arbitration provided for in the preceding paragraph shall be interrupted when one of the parties claims rights against the other party, or requests rights and remedies from the relevant authorities, or the other party agrees to perform its obligations. From the time of interruption, the arbitration limitation period is recalculated.
Where the parties are unable to apply for arbitration within the limitation period provided for in paragraph 1 of this Article due to force majeure or other legitimate reasons, the limitation period for arbitration shall be suspended. The limitation period for arbitration shall continue to run from the date on which the reasons for the suspension are removed.
If a dispute arises due to arrears of labor remuneration during the existence of the labor relationship, the employee's application for arbitration shall not be subject to the limitation period for arbitration as provided for in the first paragraph of this Article; However, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship.
Article 28 [Application for Arbitration] The claimant shall submit a written application for arbitration and submit copies according to the number of respondents.
The statement of claim for arbitration shall contain the following particulars:
(1) The name, gender, age, occupation, work unit and domicile of the worker, the name and domicile of the employer, and the name and position of the legal representative or principal responsible person;
(2) the claim for arbitration and the facts and reasons on which it is based;
(3) Evidence and sources of evidence, names and residences of witnesses.
If it is really difficult to write an arbitration application, it may apply orally, and the labor dispute arbitration commission shall record it in the record and inform the other party.
Article 29 [Acceptance and Inadmissibility of Arbitration Applications] Within five days from the date of receipt of the arbitration application, if the labor dispute arbitration commission finds that it meets the conditions for acceptance, it shall accept it and notify the applicant; Where it is found that the requirements for acceptance are not met, the applicant shall be notified in writing not to accept the application and the reasons shall be explained. If the labor dispute arbitration commission does not accept the case or fails to make a decision within the time limit, the applicant may file a lawsuit with the people's court on the labor dispute matter.
Article 30 [Service of Application for Arbitration and Provision of Statement of Defence] After accepting the application for arbitration, the labor dispute arbitration commission shall deliver a copy of the application for arbitration to the respondent within five days.
After receiving a copy of the arbitration application, the respondent shall submit a statement of defence to the labor dispute arbitration commission within 10 days. After receiving the statement of defense, the labor dispute arbitration commission shall send a copy of the statement of defense to the applicant within five days. If the respondent fails to submit a statement of defence, it shall not affect the conduct of the arbitration proceedings.
Section 3: Hearings and rulings
Article 31 [Composition of the Arbitral Tribunal] The labor dispute arbitration commission shall adjudicate labor dispute cases under the arbitral tribunal system. The arbitral tribunal shall consist of three arbitrators, with a presiding arbitrator. Simple labor dispute cases can be arbitrated by a single arbitrator.
Article 32 [Written Notification of the Composition of the Arbitral Tribunal] The Labor Dispute Arbitration Commission shall notify the parties in writing of the composition of the Arbitral Tribunal within five days from the date of acceptance of the application for arbitration.
Article 33 [Challenge of Arbitrators] An arbitrator shall be challenged under any of the following circumstances, and the parties shall also have the right to submit an application for challenge orally or in writing:
(1) They are a close relative of a party to the case or a party or agent;
(2) They have an interest in the case;
(3) They have other relationships with the parties or agents in the case that might impact the fairness of the ruling;
(4) Meeting with parties or agents without permission, or accepting hospitality or gifts from parties or agents.
The labor dispute arbitration commission shall make a decision on the application for recusal in a timely manner and notify the parties orally or in writing.
Article 34 [Legal Responsibility of Arbitrators] Arbitrators shall bear legal responsibility in accordance with law if they have any of the circumstances provided for in Item 4 of Article 33 of this Law, or if they have solicited or accepted bribes, twisted the law for personal gain, or arbitrarily made awards. The labor dispute arbitration commission shall dismiss him/her.
Article 35 [Notice of Hearing and Postponement of Hearing] The Arbitral Tribunal shall notify both parties in writing of the date and place of the hearing five days before the hearing. Where the parties have a legitimate reason, they may request an extension of the trial three days before the trial begins. Whether to extend the extension shall be decided by the Labor Dispute Arbitration Commission.
Article 36 [Deemed Withdrawal of Arbitral Award and Default Award] If the claimant receives a written notice and refuses to appear at the hearing without justifiable reasons or withdraws from the hearing without the consent of the arbitral tribunal, it may be deemed to have withdrawn the application for arbitration.
If the respondent refuses to appear at the hearing without justifiable reasons or withdraws from the hearing without the consent of the arbitral tribunal after receiving a written notice, it may make an award in absentia.
Article 37 [Appraisal] If the Arbitral Tribunal finds that an appraisal is necessary for a specialized issue, it may submit the appraisal to an appraisal agency agreed upon by the parties. If the parties have not reached an agreement or cannot reach an agreement, the appraisal shall be conducted by an appraisal agency appointed by the arbitral tribunal.
At the request of the parties or the request of the arbitral tribunal, the appraisal institution shall send an appraiser to participate in the hearing. With the permission of the arbitral tribunal, the parties may ask questions to the appraiser.
Article 38 [Cross-examination, Debate, and Presentation of Final Opinions] The parties have the right to cross-examine and debate evidence during the arbitration process. At the conclusion of cross-examination and debate, the presiding arbitrator or the sole arbitrator shall seek the final opinions of the parties.
Article 39 [Evidence and Burden of Proof] If the evidence provided by the parties is found to be true, the arbitral tribunal shall use it as the basis for determining the facts.
If the employee is unable to provide evidence related to the arbitration claim that is in the possession and management of the employer, the arbitral tribunal may require the employer to provide such evidence within a specified time limit. If the employer fails to provide it within the specified time limit, it shall bear the adverse consequences.
Article 40 [Transcript of Arbitral Hearing] The Arbitral Tribunal shall record the proceedings in the record. If the parties and other arbitration participants believe that there are omissions or errors in the records of their statements, they have the right to apply for supplementation and correction. If it is not corrected, the application shall be recorded.
The transcript shall be signed or sealed by the arbitrators, recorders, parties and other arbitration participants.
Article 41: [Self-Settlement by the Parties] After the parties apply for arbitration of a labor dispute, they may settle on their own. If a settlement agreement is reached, the application for arbitration may be withdrawn.
Article 42 [Mediation by the Arbitral Tribunal] The Arbitral Tribunal shall conduct mediation before making an award.
If an agreement is reached through mediation, the arbitral tribunal shall prepare a mediation statement.
The conciliation statement shall state the request for arbitration and the outcome of the agreement between the parties. The mediation statement shall be signed by the arbitrator, stamped with the seal of the labor dispute arbitration commission, and served on both parties. The mediation statement shall take legal effect after being signed and received by both parties.
If the mediation fails or one of the parties repents before the mediation statement is served, the arbitral tribunal shall make an award in a timely manner.
Article 43 [Time Limit for Arbitration Hearing and Advance Award] The arbitral tribunal's decision on a labor dispute case shall be concluded within 45 days from the date on which the labor dispute arbitration commission accepts the arbitration application. If the case is complicated and requires an extension, it may be extended with the approval of the chairman of the labor dispute arbitration commission and the parties may be notified in writing, but the extension period shall not exceed 15 days. If the arbitral award is not made within the time limit, the parties may file a lawsuit with the people's court on the labor dispute.
When the arbitral tribunal decides a labor dispute case, a part of the facts is already clear and it may make a preliminary decision on that part.
Article 44 [Advance Enforcement] The Arbitral Tribunal may, upon the application of the parties, make an award for advance enforcement and transfer it to the people's court for enforcement in cases of recovery of labor remuneration, work-related injury medical expenses, economic compensation or compensation.
If the arbitral tribunal makes an award for enforcement in advance, the following conditions shall be met:
(1) The relationship between the rights and obligations of the parties is clear;
(2) Failure to enforce in advance will seriously affect the applicant's life.
If a worker applies for prior enforcement, he or she may not provide a guarantee.
Article 45 [Making an Award] The award shall be made in accordance with the opinions of the majority of the arbitrators, and the dissenting opinions of the minority arbitrators shall be recorded in the record. If the arbitral tribunal is unable to form a majority opinion, the award shall be made in accordance with the opinion of the presiding arbitrator.
Article 46 [Written Award] The written award shall state the request for arbitration, the facts in dispute, the reasons for the award, the result of the award 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. Arbitrators who disagree with the award may or may not sign.
Article 47 [Final Award] Except as otherwise provided in this Law, the arbitral award for the following labor disputes shall be final and shall take legal effect from the date of its issuance:
(1) Disputes over the recovery of labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, which does not exceed the amount of the local monthly minimum wage standard for 12 months;
(2) Disputes arising from the implementation of national labor standards in terms of working hours, rest and vacation, social insurance, etc.
Article 48: [Litigation by Laborers] Where a laborer is dissatisfied with an arbitral award provided for in Article 47 of this Law, he may file a lawsuit with the people's court within 15 days from the date of receipt of the arbitral award.
Article 49 [Application by Employer for Revocation of Final Award] If the employer has evidence to prove that the arbitral award provided for in Article 47 of this Law falls under any of the following circumstances, it may apply to the Intermediate People's Court at the place where the labor dispute arbitration commission is located to revoke the award within 30 days from the date of receipt of the arbitral award:
(1) There is truly an error in the application of laws or regulations;
(2) The labor dispute arbitration commission has no jurisdiction;
(3) Violating legally-prescribed procedures;
(4) the evidence on which the award is based is forged;
(5) The opposing party has concealed evidence sufficient to affect the fairness of the ruling;
(6) The arbitrator has solicited or accepted bribes, twisted the law for personal gain, or arbitrarily arbitrarily adjudicated the case during the arbitration of the case.
Where the people's court forms a collegial panel to review and verify that the ruling has any of the circumstances provided for in the preceding paragraph, it shall rule to revoke it.
If the arbitral award is revoked by the people's court, the parties may file a lawsuit with the people's court within 15 days from the date of receipt of the ruling.
Article 50 [Filing a Lawsuit Against an Arbitral Award] If a party is dissatisfied with an arbitral award in a labor dispute case other than that provided for in Article 47 of this Law, it may file a lawsuit with the people's court within 15 days from the date of receipt of the arbitral award; Where no prosecution is made at the expiration of the time limit, the ruling takes legal effect.
Article 51: [Enforcement of Effective Mediation Documents and Rulings] The parties shall perform on legally effective mediation documents or rulings in accordance with 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 enforcement in accordance with the relevant provisions of the Civil Procedure Law. The people's court accepting the application shall enforce it in accordance with law.
Chapter IV: Supplementary Provisions
Article 52: [Handling of Labor Disputes in Public Institutions] Where a staff member of a public institution that implements the employment system has a labor dispute with that unit, it shall be enforced in accordance with this Law; Where laws, administrative regulations, or the State Council provide otherwise, follow those provisions.
Article 53 [No Fees for Arbitration] There are no fees for arbitration of labor disputes. The funds of the labor dispute arbitration commission shall be guaranteed by the treasury.
Article 54: [Effective Date of this Law]This Law shall take effect on May 1, 2008.
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