Shaanxi Province Labor Dispute Mediation And Arbitration Methods

Original Language Title: 陕西省劳动人事争议调解仲裁办法

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                 Chapter I General provisions article just, timely processing of labor and personnel disputes, in accordance with the People's Republic of China Law on mediation and arbitration of labor disputes (hereinafter referred to as the law on mediation and arbitration), the People's Republic of China Law on civil servants (hereinafter referred to as the civil servants Act) and the Chinese people's Liberation Army civilian personnel and other relevant laws and regulations, combined with the facts of the province, these measures are formulated.

Second, following disputes within the administrative area of mediation and arbitration procedures apply:

(A) enterprise, and individual organization, and private non-enterprises, organization and workers Zhijian, and organ, and institutions, and social groups with established labor relationship of workers Zhijian, for confirmed labor relationship, made, and perform, and change, and lifted and terminated labor contract, work time, and rest vacation, and social security, and welfare, and training and labour protection, labor paid, and injury medical, and economic compensation or compensation gold, occurred of dispute;

(B) the implementation of the law on civil service organs and appointment of civil servants, in the light of the civil service law and management of (units) and disputes arising from the performance of the employment contract between the appointment of staff;

(C) institutions and staff for removal, dismissal, resignation, termination termination of personnel relations as well as the performance of the employment contract disputes;

(D) between community groups and staff due to removal, dismissal, resignation, separation, termination of personnel relations as well as the performance of the employment contract disputes;

(E) civilian personnel recruitment units and disputes arising from the performance of a contract between the civilian personnel;

(F) the provisions of laws and regulations by the labor dispute Arbitration Commission dealing with other disputes.

Article disputes over labor, personnel, and should be based on the fact that, following the principle of lawful, fair, timely, focused on mediation, protect the legitimate rights and interests of the parties. Article fourth provincial districts of the city and County (city, district) people's Government labor dispute arbitration commissions established by law, is responsible for labour, personnel disputes within the jurisdiction.

Labor dispute arbitration commissions shall independently exercise their right to arbitration. Labor dispute arbitration Committee is composed of representatives of civil service departments, representatives of relevant administrative departments such as human resources and social security administrative departments, military and civilian personnel working for competent authorities on behalf of the employing organization, representatives of trade unions, employers representatives and so on.

Members of the labor dispute Arbitration Commission shall be an odd number. Labor dispute Arbitration Commission set up offices, named for labor dispute arbitration, specific work of labor dispute Arbitration Commission.

Arbitrators and other specifications and equipped with the staff in accordance with State regulations.

Labor dispute arbitration commissions unit can send part-time arbitrators permanent labor dispute arbitration Institute, involved in dispute mediation and arbitration activities.

Article fifth labor dispute arbitration commissions shall perform the following duties:

(A) the appointment and dismissal of (and) professional arbitrators;

(B) the dispute cases;

(C) discuss major or difficult cases;

(D) the supervision of arbitration activities.

               Article sixth of human resources and social security administrative departments are responsible for guiding the administration of labor dispute mediation and arbitration work, organization and coordination across regions or major labor dispute process, responsible for management, training of arbitrators, mediators, and so on. Chapter II conciliation article seventh large and medium enterprise labour disputes Mediation Committee shall be established by law, staffed with full-time or part-time staff, provide the necessary office space, facilities and so on. Branch, branch, branch businesses, labour dispute mediation committees established in the branch as needed. Large and medium enterprise labor dispute mediation Commission guidance branch labour dispute mediation committees to carry out preventive mediation of labor disputes. Labour disputes Mediation Committee may be needed in the workshop, workshop, team to set up mediation. Small and micro enterprise labour disputes Mediation Committee may be established, can jointly elected by workers and businesses who conduct mediation.

Composition of labor dispute mediation Committee in accordance with the conciliation and Arbitration Act article tenth of the provisions of the second paragraph. Institution may establish, as necessary, of labor dispute mediation Committee, labor, personnel occurred in units responsible for mediating the dispute.

Labor dispute mediation Committee nominated by the institution staff representatives and designated personnel and so on. Director of labor dispute mediation Committee members by trade unions or employee representatives elected by the unit staff.

Smaller institutions, based on the need for labor dispute mediation panel or the labor dispute mediator.

The township (town) people's Government, the subdistrict office responsible for labour, personnel disputes mediation organization, prevention and mediation within the jurisdiction of the labor, personnel disputes.

Mediator of labor dispute mediation organizations should have some knowledge of the law, impartial, masses and enthusiastic about the mediation work of the adult citizens.

Article eighth labor dispute mediation organizations mediation work, personnel disputes, should follow the principle of voluntariness, equality, legality.

After Nineth labor, personnel disputes arise, the parties may apply to the employer's labor dispute mediation committee mediation, Township (town) people, neighborhood offices established by the labor dispute mediation organizations, personnel dispute mediation function for mediation, mediation applications received since the labor dispute mediation organizations within 15th of the mediation agreement is reached, the parties concerned may apply for arbitration.

Mediation work, personnel disputes, should fully hear the parties on the statement of facts and reasons, patient counseling, and help them reach an agreement. A conciliation agreement, it shall make the mediation agreement. Mediation agreement signed or sealed by the parties, the mediator has signed and sealed by the mediation organizations after the entry into force, shall be binding on the parties, the Parties shall perform.

Party fails to perform within the period stipulated in the agreement of the conciliation agreement, may apply for arbitration.

               Article tenth mediators perform mediation duties, require production or work time, the unit should be supported and treated in accordance with normal attendance.

Chapter III arbitration

11th labor dispute Arbitration Commission shall appoint full-time and part-time arbitrators.

Arbitrators and records personnel to participate in the trial, should be unified to dress, wear the coat of arms of arbitration.

Part-time arbitrator for arbitration activities, the unit should be supported. 12th labor dispute Arbitration Commission to deal with labor Tribunal system is adopted, a personnel dispute cases.

Composition of the Arbitration Tribunal, authorized by the labor dispute Arbitration Commission or heads of offices specified. Simple labor, personnel dispute cases can consist of a single Arbitration 1 the arbitrators.

The following disputes shall consist of 3 arbitrators Arbitration Tribunal, be a Chief arbitrator:

(A) 10 or more collective labour dispute, personnel;

(B) has a major impact on the dispute;

(C) the labor dispute Arbitration Commission deems the Constitution of an arbitral tribunal handling other cases. 13th labour disputes by labour contract or the location of the employer of the labor dispute Arbitration Commission jurisdiction.

Parties to the labor contract is performed and the location of the employer of labor dispute arbitration Committee for arbitration, the labor contract is performed the labor dispute Arbitration Commission jurisdiction.

Personnel disputes in accordance with the personnel management permissions by disputed jurisdiction of the labor dispute Arbitration Commission.

Province labor dispute Arbitration Commission accepted the following labor and personnel dispute cases: (a) provincial government agencies, institutions and social groups of labor and personnel disputes, (ii) military labor, personnel disputes or above the Corps level units;

(C) access to legal employment eligibility of foreign and Hong Kong, Macao and Taiwan laborers labor, personnel disputes with employers. Besides province labor dispute arbitration Committee for arbitration cases, other labor dispute arbitration cases from the districts of cities and counties (cities, districts) of labor dispute Arbitration Commission accepted.

Districts of cities and counties (cities, districts) of labor dispute arbitration Committee accept the scope of the arbitration case determined by the municipal districts.

Article 14th, personnel after a dispute has arisen, 2 or 2 or more objections to the jurisdiction of the labor dispute arbitration Committee, which negotiated settlement through consultation, shall be submitted to the common level for labor dispute arbitration committee authority to exercise jurisdiction.  

15th after the labor dispute Arbitration Commission accepted the case, the location of the employer changes, jurisdiction no longer changes. 16th the limitation period for labor dispute arbitration 1. Validity of arbitration from the parties know or ought to know the date on which the right was infringed.

Interruption, suspension in accordance with the provisions of the law on mediation and arbitration of 27th article.

Duration of arrears of remuneration of labor relations disputes, a laborer applies for arbitration against the first paragraph of this article of the validity of arbitration shall limit; however, termination of the employment relationship, shall be made within 1 year from the date of the termination of the labour relationship. 17th labor dispute arbitration Committee upon receipt of the request for arbitration shall be made within the 5th's decision to accept or not to accept. Decided to reject the complaint and shall notify the parties in writing and state the reasons; decision of admissibility, and should the arbitration application, serve a copy on the respondent in the 5th and the formation of the arbitral tribunal.

The labor dispute Arbitration Commission shall not accept or fails to make a decision, the applicant may initiate proceedings in respect of the matters in dispute to the people's Court. Article 18th labour, personnel dispute the parties may authorize 1 or 2 agents to participate in arbitration activities.

Delegate to the labor dispute arbitration commission agent shall be submitted by the delegate signature or seal a power of Attorney, letters rogatory should clarify matters entrusted and the permissions.

Totally or partially incapacitated, the parties, by their legal agent to participate in arbitration, no legal representatives, appointed by the labor dispute Arbitration Commission for the agent. Article 19th applicant shall receive a copy of the arbitration application within 10th of the respondent.
Being the applicant failing to submit or not to submit an answer, do not affect arbitration proceedings.

20th parties to cases before the labor dispute Arbitration Commission jurisdictional objection, should be submitted in writing prior to the expiration of reply.

Labor dispute arbitration Committee after a review of the objection to jurisdiction raised by the parties, the objection is established, shall transfer the case to have jurisdiction over the labor dispute Arbitration Commission objections untenable, decided to dismiss. Article 21st labor dispute Arbitration Commission the Arbitration Tribunal shall notify the parties in writing before 5th hearing court date, location and other matters.

Parties requesting a postponement of the hearing, 3rd should be at Court in writing to apply for extension of labor dispute Arbitration Commission, whether to postpone the decision after review by the labor dispute Arbitration Commission.

The applicant receives written notice of the hearing, without any justified reason, refuses to appear or by the arbitral tribunal agreed halfway close, labor dispute Arbitration Commission may be regarded as the applicant withdrew an application for arbitration.

Is the applicant receives written notice of the hearing, without any justified reason, refuses to appear or by the arbitral tribunal agreed halfway close, you can award.

22nd arbitrators have one of the following should be avoided:

(A) is a party to the case or the parties or agents of close relatives;

(B) have a stake in the case;

(C) relations with the parties to the case, the agents have other, which may affect the impartiality of the award;

(D) privately met with the party, agent, or accept the parties or agents treat or gift;

(V) are likely to affect the impartiality of the award.

Party is entitled to an arbitrator recusal.

Labor dispute arbitration Committee for arbitration or a party applying for withdrawal without delay, make a decision and notify the proposed recusal of an arbitrator or the parties.

Article 23rd during the hearing, the arbitrator shall hear statements from the applicant and the applicant's reply to preside over the trial investigations, evidence and debate, consult the final opinion of the parties, and mediation. 24th the Arbitration Tribunal shall make a written record of the hearing. The parties and other participants in the arbitration that the records of their own statements there are omissions or errors, the right to apply for corrections.

Arbitral tribunal considers the application without reason or without necessary, can not be corrected, but the application shall be recorded. 25th labor dispute cases before the Arbitration Tribunal shall be carried out in special places, if necessary, set up ad hoc arbitration venue.

Place of arbitration shall be hung coat of arms of arbitration, post arbitral tribunal to discipline, with the necessary equipment for handling. Article 26th labor dispute the parties have a responsibility to provide evidence on his claims.

Evidence relating to the matter in dispute is the employer master management, employers should be provided; the employer does not provide, shall bear the negative consequences. Labor dispute the evidence on matters other than the parties to the dispute the administrative organs or administer public affairs management in institutions, the parties concerned may apply for labor dispute arbitration Committee to the relevant mainland authorities to gather evidence.

Labor dispute arbitration Committee to the relevant mainland authorities to gather evidence, the authorities concerned shall cooperate.

In arbitration, the 27th, the Tribunal specifically considered the issue of need identification, can be identified by parties agreed that identification of bodies, parties do not agree or cannot reach an agreement by the parties, identification of legitimate accreditation body specified by the arbitral tribunal.

28th before the Arbitration Tribunal made the ruling, should mediate. A conciliation agreement, the arbitral tribunal shall be made of mediation. The conciliation statement shall clearly state the outcome of the arbitration request and agreement of the parties. Mediation shall be signed by the arbitrators, with the labor dispute Arbitration Commission, and served on both parties.

After mediation by both parties to sign, which has taken legal effect.

Written mediation no agreement or mediation to the parties before defaulting, the arbitral tribunal shall make a timely decision. Article 29th after the party applying for arbitration, of their own accord.

The parties reached a settlement agreement, may withdraw an application for arbitration, or request the arbitral tribunal according to law mediation settlement agreement. Article 30th arbitral tribunals adjudicate in labour and personnel dispute cases, the term application of the conciliation and Arbitration Act article 43rd.

Fails to make an arbitration award, the parties may, in respect of the labour, personnel matters in dispute to the people's court proceedings.

Parties by the arbitral tribunal fails to make decisions and initiate litigation to the people's Court of arbitration, labor dispute Arbitration Commission ruled that the case should be terminated proceedings parties fail to initiate proceedings in respect of the matters in dispute to the people's Court, and the parties agreed to arbitration, labor dispute arbitration committees can continue to process and award. 31st arbitral dispute cases, the arbitral award shall be made in accordance with the views of the majority of the arbitrators. A few different opinions of the arbitrators shall be entered into the record.

When the arbitral tribunal cannot form majority, the award shall be made in accordance with the opinion of the presiding arbitrator, the arbitrators take a different view of the award can be signed or not signed.

Article 32nd arbitral cases or cases that have major impact, can be submitted to labor dispute arbitration Committee for discussion. Article 33rd following the Tribunal ruling, it shall make the award.

The award shall set forth the claims, the facts of the dispute, his reasons for the verdict, ruling party relief right and decision date.

Decisions shall be signed by the arbitrators, with the labor dispute Arbitration Commission, and served on both parties.

Delivery of the award in accordance with the People's Republic of China implementation of the relevant provisions of the law of civil procedure. Article 34th on the conciliation and Arbitration Act labor dispute cases other than article 47th refuses to accept the arbitration award, from the date of receiving the award in the 15th to a people's Court.

Fails to bring, the award shall come into legal effect.

Party not satisfied with the final award, in accordance with the law on mediation and arbitration of 48th, 49th article for relief.

35th arbitrator shall not have the following behavior:

(A) practise favoritism, favour one of the parties;

(B) abuse of authority, violations of the legitimate rights and interests of the parties;

(C) the use of Office to seek personal benefits for themselves or others;

(D) withhold evidence or falsify evidence;

(E) who met with the parties or agents, the parties or agents treat or gift;

(Vi) intentionally delaying handling, neglect their duties;

(G) unauthorized disclose disposition of cases;

(VIII) agents for the arbitration case while in Office;

(IX) other illegal activities.

               36th record personnel should be objective and documented case of trial, shall not intentionally altered trial record, cases dealing with matters which should be kept confidential in the process may not be disclosed to the parties.

37th fourth chapter legal liability of arbitrators article 35th of the present measures, depending on the seriousness of the labor dispute arbitration Committee, give criticism, dismissal and other treatment; arbitrators units in accordance with relevant regulations of the State in which the offender constitutes a crime, criminal responsibility shall be investigated according to law.

               The 38th record breaches the provisions of article 36th, 37th article dealing with reference to these measures.

Fifth chapter supplementary articles article 39th labor dispute arbitration free of charge.

Labor dispute arbitration Committee for arbitration protection in accordance with the provisions of the law on mediation and arbitration of 53rd article, specific issues by human resources and social security administrative departments of the province provincial financial departments separately. 40th article of the rules take effect on September 1, 2015. Issued by the people's Government of Shaanxi Province, August 28, 1995 of the implementation measures for the handling of labor disputes in Shaanxi Province (provincial 21st), September 13, 2004 issued by the Shaanxi Provincial people's Government of the interim measures for settling personnel dispute in Shaanxi Province (provincial people's Government, the 103th) repealed simultaneously.