Can Employees Claim Economic Compensation If They Are Unwilling To Renew Their Labor Contracts?

In July 1, 2012, Lin entered A company to engage in security work, and the two sides signed a written labor contract for a period of 2 years.

The contract period is from July 1, 2012 to June 30, 2014, and the wage is 1500 yuan per month.

A comprehensive calculation man hour system was adopted, and the company paid five risks and one gold for its employees.

After the contract is about to expire, A will inform Lin that it will renew the 2 year labor contract according to the conditions stipulated in the original labor contract.

Because Lin had found a more suitable job, he refused the offer to renew the labor contract with his ill health.

Subsequently, Lin failed to negotiate with the company on the issue of economic compensation, and filed a labor arbitration with the local labor and personnel dispute arbitration committee in August 2014, demanding payment by the company.

3000 yuan.

According to the trial, the Arbitration Commission considers that

"Article forty-sixth provides that, unless the employer maintains or improves the conditions stipulated in the labor contract, the labor contract shall be renewed.

If it does not agree with the renewal of the contract, the employer shall pay the economic compensation to the laborer in accordance with the first provision of the forty-fourth and first provisions of this law.

In accordance with the above provisions, the employer shall be obliged to pay the laborer the economic compensation after the labor contract is no longer signed after the expiration of the labor contract.

If the employer has evidence to prove that the employer maintains or improves the conditions stipulated in the labor contract to renew the labor contract, and the worker does not agree to renew the contract, it does not need to pay the economic compensation to the laborer.

The Arbitration Commission rejected Lin's arbitration request in accordance with the law.

Related links:

Tsai Mou is a retired member of a state-owned enterprise, and the salary after retirement is 1200 yuan per month.

In June 2014, CAI was hired by a property company and the two sides did not sign a labor contract.

Because of the nature of the work, Cai often works overtime, but the company only pays 1050 yuan a month.

By October, Cai learned that the local minimum wage standard was 1260 yuan, so he found the leader of the property company, demanded that the minimum wage standard and overtime pay be paid according to law, and the property company refused because the two sides were not labor relations but on the grounds of labor employment.

Since then, CAI has applied for arbitration to the local labor dispute arbitration committee, requiring the property company to pay labor remuneration and overtime pay according to the minimum wage standard.

In arbitration, the property company argued that Tsai had labor relations with the original unit. Therefore, the relationship between the company and Tsai was not labor relations, but labor relations, and should not be carried out in accordance with the relevant provisions of the labor contract.

After the trial, the Arbitration Commission concluded that Tsai and the property company had formed labor relations. The property company should implement the minimum wage standard of 1260 yuan, make up the difference and pay overtime to CAI.

According to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in labor dispute cases (three), the eighth provision states: "enterprises who have not paid salaries, those who do not reach the statutory retirement age, those who are laid off or who are laid off, and those who have long been released from business, and who are in charge of production and long holidays, have filed a lawsuit with the people's court according to law because of disputes arising from employment with new employers, and the people's court shall deal with them according to labor relations."

Accordingly, the "laid off" and "internal retreating" workers who have retained their labor relations with the original employers, who have paid labor and receive management in another unit, are deemed to have established labor relations with the new units and enjoy the relevant treatment according to the provisions of the labor law.

In this case, CAI has stepped back into the work of the property company. Although he has not signed a written labor contract, he has accepted the company's management, complying with his arrangements and observing his rules and regulations. Obviously, a factual labor relationship has been formed and the labor law should be applied.

According to the forty-eighth provision of the labor law, the State implements the minimum wage guarantee system, and the wage paid by the employing unit is not lower than the local minimum wage standard.

The twelfth provision of the minimum wage stipulated by the Ministry of labor and social security in 2003 also stipulates that the wages paid by the employing units to the workers (excluding overtime wages, allowances and welfare benefits) must not be lower than the local minimum labor standards when the workers provide normal labor.

Accordingly, the property company should pay labor remuneration to Tsai according to the local minimum wage standard and make up for the previous difference.

In addition, according to the forty-fourth provision of the labor law, workers should be arranged to extend their working hours, pay wages of not less than 150% of their wages, arrange for workers to work on statutory holidays, and pay wages of not less than 300% of their wages.

Therefore, the property company should pay overtime payment to CAI.

In addition, CAI can also raise the demand for double pay.

Since the two sides have established labor relations, the property company has not entered into written labor contracts with Tsai. According to the eighty-second article of the labor contract law, "the employer has to pay 2 times the monthly wage for the workers who have not worked with the laborers for more than 1 months for more than 1 months from the date of their own employment." Cai has the right to claim double wages.