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Labor Dispute Mediation and Arbitration Law of the People's Republic of China
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 Labor Dispute Mediation and Arbitration Law of the People's Republic of China

 

The Labor Dispute Mediation and Arbitration Law of the People's Republic of China, which was adopted at the 31st meeting of the Standing Committee of the Tenth National People's Congress of the People's Republic of China on December 29, 2007, is hereby promulgated and shall be effective as of May 1, 2008.


Table of Contents
Chapter I General Provisions
Chapter II Mediation
Chapter III Arbitration
Section I Common Provisions
Section II Application and Acceptance
Section III Tribunal Hearing and Awarding
Chapter IV Supplementary Provisions


Chapter I   General Provisions

 

Article 1 To impartially and timely settle the labor disputes, protect the legal rights and interests of the parties, and promote the harmonious and stable labor relations, this Law has been formulated.

 

Article 2 This Law shall apply to the following labor disputes arising between an employer and an employee within the territories of the People's Republic of China:

(1). A dispute arising from the confirmation of a labor relationship;

(2). A dispute arising from the conclusion, performance, modification, rescission or termination of a labor contract;

(3). A dispute arising from the removal or layoff of an employee or the resignation or retirement of an employee;

(4). A dispute arising from the work hours, breaks, vacations, social insurance, benefits, training, or labor safety;

(5). A dispute arising from the labor remunerations, medical expenses for a work-related injury, economic indemnity, compensation, etc.; or

(6). Any other labor dispute as provided for by a law or administrative regulation.

 

Article 3 A labor dispute shall be settled on the basis of facts and on the principles of legality, fairness, timeliness and emphasis on mediation so as to protect the legal rights and interests of the parties according to law.

 

Article 4 Where a labor dispute arises, an employee may consult with his or her employer, or request the trade union or a third party to jointly consult with the employer, so as to reach a settlement agreement.

 

Article 5 Where a labor dispute arises, if a party does not desire a consultation, the parties fail to settle the dispute through consultation, or a party does not execute a reached settlement agreement, any party may apply to a medication organization for mediation; if a party does not desire a medication, the parties fail to settle the dispute through medication, or a party does not execute a reached medication agreement, any party may apply to a labor dispute arbitration commission for arbitration; and a party disagreeing to an arbitral award may bring an action in the people's court except as otherwise provided for by this Law.

 

Article 6 Where a labor dispute arises, a party shall be responsible for adducing evidence to back up its claims. Where the evidence related to the disputed matter is controlled by an employer, the employer shall provide it; and the employer who fails to provide the evidence shall bear the adverse consequences.

 

Article 7 Where a labor dispute involves more than ten employees and the employees have a same claim, they may recommend their representatives to participate in the mediation, arbitration, or litigation.

 

Article 8 In conjunction with the trade unions and enterprise representatives, the labor administrative authority of the people's government at or above the county level shall establish a tri-party labor mechanism for coordinating the labor relations, and jointly study and address major issues related to labor dispute.

 

Article 9 Where an employer, in violation of state provisions, delays paying or fails to pay in full the labor remunerations, or delays paying the medical expenses for a work-related injury, economic indemnity, or compensation, an employee may complain about it to the labor administrative authority and the labor administrative authority shall deal with it according to law.

 

Chapter II   Mediation

 

Article 10 Where a labor dispute arises, a party may apply to any of the following mediation organizations for mediation:

(1). Labor dispute mediation committee of an enterprise;

(2). Grassroots people's mediation organization legally established; and

(3). Organization with the labor dispute mediation function established in a township or neighborhood community.

 

A labor dispute mediation committee of an enterprise shall comprise the employee representatives and enterprise representatives. The employee representatives shall be members of the trade union or persons recommended by all employees, while the enterprise representatives shall be designated by the person in charge of the enterprise. The chairman of a labor dispute mediation committee of an enterprise shall be a member of the trade union or a person recommended by both parties.

 

Article 11 A mediator of a labor dispute mediation organization shall be an adult citizen who is fair, decent, connected with the people, and enthusiastic for the mediation work and has a certain level of knowledge of law, policy and culture.

 

Article 12 A party may apply for a labor dispute mediation in writing or verbally. For a verbal application, a mediation organization shall record, on the spot, the basic information on the applicant, disputed matters for which the party applies for mediation, the reasons for application for mediation, and the time of application for mediation.

 

Article 13 In labor dispute mediation, the statements of facts and reasons by both parties shall be fully heard and the parties shall be guided patiently by a mediator so as to help them reach an agreement.

 

Article 14 Where an agreement is reached through mediation, a mediation agreement paper shall be made.

 

A mediation agreement paper shall be signed or sealed by both parties, and take effect after the mediator signs it and the seal of the mediation organization is affixed thereon, which shall be binding upon both parties and executed by the parties.

 

Where a mediation agreement is not reached within 15 days after a labor dispute mediation organization receives a mediation application, a party may apply for arbitration according to law.

 

Article 15 Where after a mediation agreement is reached, one party fails to execute the mediation agreement within the period of time prescribed in the agreement, the other party may apply for arbitration according to law.

 

Article 16 Where a mediation agreement is reached on a matter of delayed payment of labor remunerations, medical expenses for a work-related injury, economic indemnity, or compensation, and the employer fails to execute it within the period of time prescribed in the agreement, the employee may apply to the people's court for a payment order based on the mediation agreement and the people's court shall issue a payment order according to law.

 

Chapter III   Arbitration

 

Section I   Common Provisions

 

Article 17 The labor dispute arbitration commissions shall be established on the principles of full planning, reasonable layout, and adaptation to the practical needs. The people's government of a province or autonomous region may decide to establish the arbitration commissions in cities and counties; the people's government of municipality directly under the Central Government may decide to establish them in districts and counties. One or more labor dispute arbitration commissions may also be established in a municipality directly under the Central Government or a city with districts. The labor dispute arbitration commissions shall not be established level by level according to administrative divisions.

 

Article 18 The labor administrative authority of the State Council shall make arbitration rules according to the relevant provisions of this Law. The labor administrative authorities of provinces, autonomous regions and municipalities directly under the Central Government shall guide the labor dispute arbitration work within their respective administrative regions.

 

Article 19 A labor dispute arbitration commission shall comprise the representatives of the labor administrative authority, representatives of trade unions and representatives of enterprises. The members of a labor dispute arbitration commission shall be in odd numbers.

A labor dispute arbitration commission shall perform the following functions:

(1). Retaining and dismissing full-time or part-time arbitrators;

(2). Accepting and hearing labor dispute cases;

(3). Discussing major or difficult labor dispute cases; and

(4). Overseeing arbitration activities.

 

A labor dispute arbitration commission shall set up a general office to be responsible for the daily work of the labor dispute arbitration commission.

 

Article 20 A labor dispute arbitration commission shall maintain a panel of arbitrators.

 

An arbitrator shall be fair and decent and satisfy any of the following requirements:

(1). Once serving as a judge;

(2). Engaging in legal research or teaching work with a professional title at or above the medium level;

(3). Having knowledge of law and engaging in human resource management or trade union or other professional work for five years; or

(4). Having practiced law as a lawyer for three years.

 

Article 21 A labor dispute arbitration commission shall be responsible for the labor disputes occurring within its jurisdiction.

 

A labor dispute arbitration commission at the place of performance of a labor contract or at the place of residence of an employer shall have jurisdiction of a labor dispute. Where the two parties respectively apply to the labor dispute arbitration commissions at the place of performance of a labor contract and at the place of residence of an employer for arbitration, the labor dispute arbitration commission at the place of performance of a labor contract shall have jurisdiction.

 

Article 22 An employee and an employer, between which a labor dispute arises, shall be the two parties in a labor dispute arbitration case.

 

Where a dispute arises between a labor dispatch entity or employer and an employee, the labor dispatch entity and employer shall be the joint party.

 

Article 23 A third party that has an interest relationship with the results of handling of a labor dispute case may apply for participating in the arbitration activities or be notified by the labor dispute arbitration commission to participate in the arbitration activities.

 

Article 24 A party may appoint an attorney to participate in the arbitration activities. A party who appoints an attorney to participate in the arbitration activities shall submit to the labor dispute arbitration commission a Power of Attorney signed or sealed by the party, and the Power of Attorney shall expressly state the authorized matters and powers.

 

Article 25 The legal representative of an employee who has lost all or part of his or her capacity of conduct in civil law shall participate in the arbitration activities on behalf of the employee; and where such an employee does not have a legal representative, the labor dispute arbitration commission shall designate a representative for the employee. For a deceased employee, the close relative or attorney of the deceased employee shall participate in the arbitration activities.

 

Article 26 The labor dispute arbitration shall be conducted openly, except one that shall not be conducted openly as agreed on by the parties or involves a national secret, trade secret or personal privacy.

 

Section II   Application and Acceptance

 

Article 27 The time limitation period for application for arbitration of a labor dispute shall be one year. The time limitation period for arbitration shall be counted as of the date when a party knows or should know that its right has been violated.

 

The time limitation period prescribed in the preceding paragraph shall be discontinued upon one party's claiming a right against the other party or requesting a right's remedy to the relevant authority or the other party's agreeing to perform an obligation. The time limitation period shall be recounted from the time of the interruption.

 

Where for a force majeure or any other proper reason a party cannot apply for arbitration within the time limitation period for arbitration prescribed in the first paragraph hereof, the time limitation period for arbitration shall be suspended. The time limitation period for arbitration shall continue being counted at the date when the reason for suspension of the time limitation period disappears.

 

Where a dispute arises from the delayed payment of labor remunerations during the period of existence of a labor relationship, an employee's application for arbitration shall not be subject to the time limitation period for arbitration prescribed in the first paragraph hereof; but if a labor relationship is terminated, an employee shall apply for arbitration within one year as of the date of termination of the labor relationship.

 

Article 28 To apply for arbitration, an applicant shall submit a written application for arbitration and copies thereof as per the number of respondents.

The written application for arbitration shall expressly state the following matters:

(1). Name, gender, age, occupation, work unit and residence of an employee, name and residence of an employer, and names and titles of the legal representative or principal of an employer;

(2). Arbitral claims and supporting facts and reasons; and

(3). Evidence, sources of evidence, and names and residences of witnesses.

 

Where a party has difficulty in writing an application for arbitration, the party may apply for arbitration verbally, and a labor dispute arbitration commission shall record it in writing and notify the other party.

 

Article 29 Within five days as of receiving an application for arbitration, the labor dispute arbitration commission, if considering that the requirements for acceptance are satisfied, shall accept the application and notify the applicant; or if considering that the requirements for acceptance are not satisfied, shall notify in writing the applicant of the rejection of the application and explain the reasons. Where a labor dispute arbitration commission decides not to accept an application for arbitration or fails to make a decision before the prescribed time limit, an applicant may bring an action in the people's court for matters on the labor dispute.

 

Article 30 Within five days after accepting an application for arbitration, the labor dispute arbitration commission shall serve a copy of the written application for arbitration on a respondent.

 

Within ten days after receiving a copy of the written application for arbitration, a respondent shall submit a statement of defense to the labor dispute arbitration commission. Within five days after receiving the statement of defense, the labor dispute arbitration commission shall submit a copy of the statement of defense to the applicant. The failure of a respondent to submit a statement of defense shall not affect the conduct of arbitration procedures.

 

Section III   Tribunal Hearing and Awarding

 

Article 31 The arbitral tribunal system shall be adopted for a labor dispute arbitration commission to decide labor dispute cases. An arbitral tribunal shall comprise three arbitrators, including a chief arbitrator. A simple labor dispute case may be arbitrated by a sole arbitrator.

 

Article 32 A labor dispute arbitration commission shall notify in writing the parties of information on the composition of an arbitral tribunal within five days after the date of accepting an application for arbitration.

 

Article 33 Under any of the following circumstances, an arbitrator shall recuse himself or herself, and a party shall have the right to apply for recusal verbally or in writing:

(1). Being a party in the case or a close relative of a party or attorney thereof;

(2). Having an interest relationship with the case;

(3). Having any other relationship with a party or attorney thereof in the case, which may affect the rendering of a fair award; or

(4). Meeting in private a party or attorney thereof, or accepting a treat or gift from a party or attorney thereof.

 

A labor dispute arbitration commission shall timely make a decision on an application for recusal and notify verbally or in writing the party of its decision.

 

Article 34 Where an arbitrator is under the circumstance of Article 33(4) of this Law, asks for or accepts bribes, practices favoritism for personal gain or renders an award by perverting the law, such an arbitrator shall bear the legal liability according to law. A labor dispute arbitration commission shall dismiss such an arbitrator.

 

Article 35 An arbitral tribunal shall notify both parties of the date and place of hearing at least five days before a hearing. For proper reasons, a party may request the postponement of a hearing at least three days before a hearing. Whether a hearing shall be postponed shall be decided by a labor dispute arbitration commission.

 

Article 36 Where after receiving a written notice an applicant refuses to participate in a hearing without proper reasons or withdraw in the midst of a hearing without the permit of the arbitral tribunal, the applicant shall be deemed as having dropped the application for arbitration.

 

Where after receiving a written notice a respondent refuses to participate in a hearing without proper reasons or withdraw in the midst of a hearing without the permit of the arbitral tribunal, an award may be rendered in the absence of the respondent.

 

Article 37 Where an arbitral tribunal considers that an authentication is necessary for a specialized matter, the arbitral tribunal may delegate the authentication of the specialized matter to an authentication agency as agreed on by the parties; or where the parties do not have or cannot reach an agreement on it, the authentication shall be conducted by an authentication agency designated by the arbitral tribunal.

 

At the request of a party or as required by an arbitral tribunal, an authentication agency shall send the authenticators to participate in the hearing. With the permit of the arbitral tribunal, the parties may question the authenticators.

 

Article 38 The parties shall have the right to cross-examination and debate in the process of arbitration. At the end of cross-examination or debate, the chief arbitrator or sole arbitrator shall hear the final statements of both parties.

 

Article 39 The arbitral tribunal shall invoke evidence that is adduced by the parties and has been found to be true as the basis for determining facts.

 

Where an employee cannot adduce any evidence that is related to an arbitral claim but controlled by an employer, an arbitral tribunal may require the employer to provide it within a specified period of time. An employer that fails to provide it within the specified period of time shall bear the adverse consequences.

 

Article 40 All arbitral tribunals shall maintain written records of hearings. A party or any other arbitration participant, considering that there is any omission or mistake in the record of its statements, shall have the right to apply for correction. If the record is not corrected, such an application for correction shall be recorded.

 

The written record shall be signed or sealed by the arbitrators, recorder, parties and other arbitration participants.

 

Article 41 After a party applies for arbitration of a labor dispute, the two parties may reach a settlement on their own. Where a settlement agreement is reached, the application for arbitration may be dropped.

 

Article 42 Before rendering an award, an arbitral tribunal shall conduct mediation first.

 

Where an agreement is reached through mediation, an arbitral tribunal shall make a mediation record.

 

A mediation record shall expressly state the arbitral claims and results of agreement by the parties. A mediation record shall be signed by the arbitrators, on which the seal of the labor dispute arbitration commission shall be affixed, and served on both parties. A mediation record shall take effect after being signed by both parties.

 

Where mediation fails or one party regrets before a mediation record is served, an arbitral tribunal shall timely render an award.

 

Article 43 The arbitral tribunal shall render an award for each labor dispute case within 45 days as of the date when an application for arbitration is accepted by a labor dispute arbitration commission. Where a case is complicated and requires an extension of the above prescribed period of time, with the approval of the chairman of a labor dispute arbitration commission, extension may be made and shall be notified in writing to the parties, but the period of extension shall not exceed 15 days. Where an arbitral tribunal fails to render an award before the above or extended period of time, a party may bring an action in the people's court for the labor dispute matters.

 

When rendering an award in a labor dispute case, the arbitral tribunal may first render an award on the part of facts that have been ascertained.

 

Article 44 For a case of recovery of the labor remunerations, medical expenses for a work-related injury, economic indemnity, or compensation, upon an application of a party, an arbitral tribunal may render an award of prior execution, and transfer the case to the people's court for execution.

 

The following requirements shall be satisfied for an arbitral tribunal to render an award of prior execution:

(1). The relationships of rights and obligations between the parties are clear; and

(2) Without prior execution, the living of an applicant will be seriously affected.

 

An employee applying for prior execution may not provide a security.

 

Article 45 An arbitral award shall be rendered according to the majority opinions of the arbitrators, and the dissenting opinion of a minority arbitrator shall be recorded in writing. Where an arbitral tribunal fails to form the opinions of a majority, the arbitral award shall be rendered according to the opinion of the chief arbitrator.

 

Article 46 An arbitral award shall expressly state the arbitral claims, disputed facts, reasons for rendering an award, result of rendering an award and date of rendering an award. An arbitral award shall be signed by the arbitrators, on which the seal of the labor dispute arbitration commission shall be affixed. An arbitrator with a dissenting opinion on the award may or may not sign the award.

 

Article 47 Except as otherwise provided for by this Law, an arbitral award on any of the following labor disputes shall be final, and an arbitral award shall take effect at the date of rendering of the award:

(1). A dispute over the recovery of labor remunerations, medical expenses for a work-related injury, economic indemnity, or compensation, in an amount not exceeding the 12-month local monthly minimum wage level; and

(2). A dispute over the working hours, breaks and vacations, social insurance, etc., arising from the execution of state labor standards.

 

Article 48 An employee, who disagrees to an arbitral award as provided for in Article 47 of this Law, may bring an action in the people's court within 15 days after receiving an arbitral award.

 

Article 49 An employer, who has evidence to prove that an arbitral award as provided for in Article 47 of this Law is rendered under any of the following circumstances, may apply for revocation of the arbitral award to the intermediate people's court at the place of residence of the labor dispute arbitration commission within 30 days after receiving the arbitral award:

(1). An arbitral award is wrong in the application of a law or administrative regulation;

(2). The labor dispute arbitration commission has no jurisdiction;

(3). The legal procedure is violated;

(4). The evidence used to render the arbitral award is forged;

(5). The other party has concealed evidence that is enough to affect the rendering of a fair award; and

(6). An arbitrator in arbitrating the case asks for or accepts bribes, practices favoritism for personal gain or renders an award by perverting law.

 

After a formed collegiate bench has examined and verified that an arbitral award is under any of the circumstances in the preceding paragraph, the people's court shall rule to revoke the arbitral award.

 

Where the people's court rules to revoke an arbitral award, a party may bring an action in the people's court for the labor dispute matters within 15 days after receiving a ruling paper.

 

Article 50 A party, who disagrees to an arbitral award in any labor dispute case other than one as provided for in Article 47 of this Law, may bring an action in the people's court within 15 days after receiving an arbitral award; and where an action is not brought upon the expiration of the above prescribed period of time, an arbitral award shall take effect.

 

Article 51 A party shall execute an effective mediation record or arbitral award according to the prescribed period of time. Where one party fails to execute the same before the prescribed period of time, the other party may apply for execution to the people's court according to the relevant provisions of the Civil Procedure Law. The people's court accepting the application shall execute the same according to law.

 

Chapter IV   Supplementary Provisions

 

Article 52 This Law shall apply to a labor dispute arising between a public institution that adopts an employment system and a staffer thereof, except as otherwise provided for by a law or administrative regulation or the provisions of the State Council.

 

Article 53 No any fees shall be charged for the labor dispute arbitration. The funds of a labor dispute arbitration commission shall be secured by the finance authority.

 

Article 54 This Law shall be effective as of May 1, 2008.

 
 
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