Advocate The Rationality Of Double Pay Compensation

Introduction of the case

Applicant: Li Moumou, male, Han nationality, now living in a certain district of Fuxin.

Respondent: Fuxin XX agriculture and Animal Husbandry Machinery Co., Ltd.

The applicant claimed that: in early 2011, the applicant entered a mechanic workshop of a farming and animal husbandry machinery company. After he entered the factory, he asked the applicant to sign a labor contract and pay various social insurance.

However, in the past 3 years, the applicants have been using various excuses to prevaricate, and in February 26, 2014, without any fault and without prior notice, the applicant terminates labor relations without any reason.

Therefore, the applicant requests Fuxin labor.

The arbitration court ruled that the respondent paid double wages and financial compensation for the labor contract not signed.

The applicant argued that the applicant applied to the applicant's office in 2011. After entering the factory, the applicant repeatedly asked the applicant to sign a labor contract and refused to sign a labor contract because of the applicant's personal reasons, so the respondent should not pay the applicant twice the salary.

After the applicant has taken part in the work, he is often late for work and leaves early for 15 days or more. The applicant is discharged from the employment according to the labor law according to the enterprise system.

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Focus of controversy

If the two parties have not signed a labor contract, is there any labor relationship between the two parties? Is the double wage and economic compensation claimed by the complainant conform to the law?

1. The economic compensation for the applicant's termination of labor relations is 6000 yuan, which is paid within 10 days after the award comes into effect.

Two. The applicant's request for payment by the respondent is not supported.

Case analysis

If a worker fails to sign a labor contract for personal reasons, can he request the unit to pay double wages?

The eighty-second provision of the labor contract law stipulates that the employer shall pay two times the monthly salary to the worker if he fails to conclude a written labor contract with the employee for more than one month after the day of his own employment.

In view of the understanding of this article, there is a view that as long as employers do not have the facts of signing labor contracts with workers, they should pay double wages to workers, regardless of the reasons for not signing labor contracts.

However, we should note that the purpose of the eighty-second item of the labor contract law is to urge the employer to conclude a contract with the laborer in time. If the employer wants to pay double wages, it must satisfy the following two conditions: first, it has not signed a written contract for more than a month since the date of employment; two, the reason for not signing a written contract should be attributed to the employer.

Specifically, in this case, the agriculture and Animal Husbandry Machinery Co., Ltd. has already informed Li that he signed a labor contract in accordance with the relevant provisions of the labor contract law, and the consequences of not signing a written labor contract were due to his personal reasons.

As far as the case is concerned, a series of evidence provided by the company with written contracts signed by other workers can be confirmed. The company has actively expressed the intention to sign a written contract with Li, and Lee has received the meaning. The company does not exist the subjective intent of not signing the contract, nor has it signed the contract. It has not evaded the legal liability and damages the legitimate rights and interests of Li.

Because the responsibility for not signing a written labor contract is in Lee, so the claim that it should pay double wages without signing the labor contract has not been supported by the labor and personnel arbitration court, and the labor and personnel arbitration court has only supported its claim for economic compensation.

It can be seen from this case that although there is a formal appearance of laborers without signing the labor contract after the fact labor relations have formed with the employing units, it does not mean that they can get the support of the arbitration department because they do not sign a written labor contract to pay double wages.

In practice, the arbitration department of labor and personnel disputes is in accordance with the relevant labor laws and regulations, starting from the legislative intent of labor laws, to make an arbitral award in line with the actual situation.

If the laborer, because of his own reasons, has not signed a labor contract with the employing unit and advocates double wages, if the employer can prove that he has done the active and active contract obligation afterwards, he will not be supported by the requirement that the employer request the employer to bear the double wage without signing the labor together.