Recently, the author has received inquiries from many friends about what to do as a worker if the employer forces employees to resign in disguise by suspending social security, suspending work and production, and reducing wages in order not to pay compensation. How to protect your rights? Is it arbitration or litigation? How to apply? The following author will explain how to apply for labor arbitration for beginners who are defending their rights for the first time!

According to Article 79 of the Labor Law, the parties to a labor dispute need to apply for labor arbitration before filing a labor lawsuit. Accordingly, when encountering labor disputes, you cannot directly file a lawsuit with the court, but must first apply for labor arbitration.

01 How to determine the arbitration jurisdiction

According to the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, labor disputes are subject to 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 employer is located, the labor dispute arbitration commission at the place where the labor contract is performed shall have jurisdiction.

02 Scope of labor arbitration

After determining the jurisdiction to apply for labor arbitration, it depends on whether the dispute is a labor arbitration situation. According to the provisions of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, the circumstances of labor disputes are as follows:

(1) Disputes arising from the confirmation of labor relations;

(2) Disputes arising from the conclusion, performance, modification, termination and termination of labor contracts;

(3) Disputes arising from expulsion, dismissal, resignation, or resignation;

(4) Disputes arising from working hours, rest and vacation, social insurance, benefits, training, and labor protection;

(5) Disputes arising from labor remuneration, work-related injury medical expenses, economic compensation, or compensation;

(6) Other labor disputes stipulated by laws and regulations.

03 Time requirements for applying for labor arbitration

According to Articles 27 and 28 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, the parties to the labor dispute shall apply in writing to the competent Labor and Personnel Dispute Arbitration Commission for arbitration within one year from the date on which they know or should have known that their rights have been infringed, and submit copies according to the number of respondents. If the law has special provisions on the limitation period for applying for labor arbitration, the special provisions shall be calculated.

If a dispute arises due to arrears of labor remuneration during the existence of the labor relationship, the employee's application for arbitration is not subject to the aforementioned limitation period. However, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship.

04 How to apply for labor arbitration

After clarifying that your situation falls within the scope of labor disputes, you should submit relevant materials for applying for arbitration to the arbitration commission where the labor contract is performed or where the employer is located. The materials to be submitted by workers applying for labor arbitration are as follows:

☑ Request for arbitration (detailed statement of reasons and requirements for the complaint)

The number of copies of the arbitration application is generally provided according to the number of respondents +1. For example, 1 respondent should submit 2 arbitration applications according to 1+1; 2 respondents should submit three arbitration applications according to 2+1.

The arbitration application shall specify the following matters:

1. The name, gender, date of birth, ID number, domicile, correspondence address and contact number of the worker (applicant); The name, domicile, correspondence address, contact number, and the name and position of the legal representative or principal responsible person of the employer (respondent);
2. the arbitration request and the facts and reasons on which it is based;
3. Evidence and sources of evidence, names and residences of witnesses.

☑ Applicant's identity certificate and photocopy

☑ If there is an entrusted agent, submit a "Power of Attorney" indicating the entrusted matters, and submit a copy of the entrusted agent's ID card certificate or qualification certificate.

☑ Respondent's registration information (can be queried and printed by logging in to the National Enterprise Credit Information Publicity System)

☑ Confirmation of service of information by the parties

☑ Documents proving the existence of labor relations between the applicant and the respondent, such as labor contracts, temporary residence permits, work permits, manufacturers, work cards, salary lists (slips), employment registration forms, deposit receipts, penalty certificates, and notices or certificates of dismissal, dismissal, dismissal, termination (or termination) of labor relations.

The applicant should try to provide the above labor relationship certificates, if none of them can be provided, the labor relationship cannot be confirmed, which may lead to the case being rejected.

☑ The Evidence List is in duplicate

☑ In addition to the above materials, collective labor disputes (more than 10 people) should also submit the following materials:

1. "Employee Election Representative Letter" (in duplicate, signed by the employee himself and stamped), 3 or 5 employee representatives are selected;
2. "Arbitration Request Schedule" (in duplicate, signed by the employee and stamped).

☑ If the applicant is injured at work, the certificate of work-related injury issued by the administrative department of social insurance and the conclusion of the disability level appraisal made by the Labor Ability Appraisal Committee shall be provided. If the applicant has an occupational disease, he or she shall provide a work-related injury certificate and an occupational disease diagnosis certificate or occupational disease diagnosis certificate issued by the occupational disease appraisal agency.

☑ If the party dies in work or not due to work, the public security organ where all the immediate family members of the party are registered or the neighborhood committee or village committee where the party is located shall provide a certificate of kinship, and be notarized by the notary authority.

☑ Other relevant materials that should be submitted.

05 How to apply for labor arbitration

To apply for labor arbitration, you need to submit a written arbitration application and evidentiary materials, and after preparing the above materials, you should file a case with the arbitration commission with jurisdiction. (Some areas can file a case online)

Note: Applying for arbitration is free and there is no fee.

06 Whether to appoint a lawyer

If a lawyer is appointed as an agent, a power of attorney shall be issued, which shall specify the matters and authority of the entrustment.

07 How long does it take to make an award after applying for arbitration?

Within five days from the date of receipt of the arbitration application, the Labor Dispute Arbitration Commission will accept the case and notify the applicant if it finds that the conditions for acceptance are met. If it is deemed that the conditions for acceptance are not met, the applicant will be notified in writing of the rejection and explain the reasons.

The arbitral tribunal shall conclude the labor dispute case within 45 days from the date on which the labor dispute arbitration commission accepts the arbitration application. If the case is complex and requires an extension, it may be extended with the approval of the chairman of the labor dispute arbitration commission and notified the parties in writing, but the extension period shall not exceed 15 days. If the arbitral award is not rendered within the time limit, the parties may file a lawsuit with the people's court regarding the labor dispute.

08 What should I do if I am not satisfied with the arbitral award?

If the parties are not satisfied with the labor arbitration result, they may file a lawsuit with the people's court within 15 days from the date of receipt of the arbitral award. If the prosecution is not prosecuted after the expiration of the period, the award shall take legal effect.

Special reminder: For final rulings (disputes over labor remuneration, work-related injury medical expenses, economic compensation or compensation, not exceeding the amount of the local monthly minimum wage standard for 12 months; Disputes over the implementation of national labor standards in terms of working hours, rest and vacation, social insurance, etc.):

• If the employee is dissatisfied, he or she may file a lawsuit with the people's court within 15 days from the date of receipt of the arbitral award.
• If the employer is not satisfied, it may apply to the Intermediate People's Court where the Labor Dispute Arbitration Commission is located within 30 days from the date of receipt of the arbitral award.