A New Interpretation on Labor Disputes Trial Released Go back »
2013-03-25 | Nanjing
On January 18th, 2013, the Supreme People’s Court issued the Interpretation (IV) of the Supreme People’s Court of Several Issues on the Application of Law in the Trial of Labor Dispute Cases (“Interpretation”), which is effective from February 1st, 2013. The Interpretation mainly specifies several issues concerning the application of laws when labor disputes are brought to trial. The most important issues addressed by the Interpretation are explained hereinafter.
Relation between Labor Arbitration Committee and Court
Where the labor and personnel dispute arbitration committee refuses to accept a labor dispute case on the ground that it has no jurisdiction over the case, and a party to the case files a lawsuit in a people’s court, the people’s court shall handle the case:
i) Inform the concerned party to apply for arbitration with the Committee that previously refused to take up the case if it finds, upon examination, that the Committee actually has jurisdiction over the case; or
ii) Inform the concerned party to apply for arbitration with a competent labor dispute arbitration committee if it finds, upon examination, that the Committee indeed has no jurisdiction over the case.
Contract Amendment by Actual Execution
Where a labor contract is not modified in writing and any party claims invalidity of the modified labor contract on the ground that the contract is not modified in writing, the people’s court shall not support such a claim in case that:
i) The orally modified labor contract has been actually performed for over a month; and
ii) The provisions of the modified labor contract do not violate any law, administrative regulation, national policy, public order or good custom.
Non-Competition Agreements
Where the employer requests the rescission of a non-competition agreement during the non-competition period, such a request will be supported.
If the employee claims an additional three-month economic indemnity for non-competition from the employer during the rescission of the non-competition agreement, the claim will also be supported.
Trade Union in Termination of Labor Contracts
Where an employer that has established a labor union rescinds a labor contract but fails to notify the labor union in advance in accordance to the Labor Contract Law, the court will support the claim from the employee for compensation on the ground that the employer illegally rescinds the labor contract, unless the employer has undergone the required relevant procedures before the lawsuit is filed.
Compensation after Expiration of Business Terms
After the Labor Contract Law came into force, the employer shall pay economic compensation to the employees in case that a labor contract cannot continue to be performed because the employer no longer continues its business operation after its term of business operation expires.
Labor Relationship with Foreigners
In situations whereby a foreigner, stateless person or a Taiwan, Hong Kong or Macau resident signs a labor contract with an employer in Mainland China without obtaining the proper work permit, the relevant court shall not uphold requests from such employees to confirm the existence of a labor relation with the employer.
Labor relations may be confirmed if a foreign national holds both a Foreign Expert Certificate and a Work Permit for Foreign Experts, and has entered into employment relations with an employer within Mainland China.
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Source: ©2013 Picozzi & Morigi Law Firm