Employees' Compensation For Labor Remuneration Is Handled By The Labor Administrative Department First.

In January 28, 2010, Chen was employed in a food company in Beijing, earning 3000 yuan a month and leaving in June 30, 2011.

Chen argued that during the working hours, the unit required weekends and statutory holidays to work overtime, and a company did not pay overtime wages to them. A company owed its wages in May 2011 and June.

An arbitration application was submitted to the labor and personnel dispute arbitration commission, which required a company to pay wages in May 2011, June and 25% of the economic compensation; from January 28, 2010 to June 30, 2011, the two-day weekend overtime pay, statutory holiday overtime pay and 25% economic compensation.

The ruling supported Chen's arbitration request.

The company disagrees with the arbitral award and appealed to the court.

After hearing the court, the court decided that a company should pay wages for May 2011 and June and January 28, 2010 and December 31, 2010 for the two-day weekend and overtime pay for statutory holidays. According to the eighty-fifth provision of the People's Republic of China labor contract law, Chen asked a company to pay the economic compensation for the deferred wages and overtime wages, which should be advocated first to the relevant labor administrative departments, and this case is not dealt with.

In the labor dispute cases, the workers' requests often have 25% economic compensation for the recovery of labor remuneration, which is directly based on the third "economic compensation measures for illegal and dissolving labor contracts" issued by the Ministry of labor in 1994 (Ministry of labor No. [1994]481).

This is also the case. Chen also requested an extension of the economic compensation for wages and overtime pay.

But ultimately, the court did not support Chen's claim in accordance with the eighty-fifth provision of the labor contract law of the People's Republic of China.

The third article of the "economic compensation measures for illegal and dissolving labor contracts" and the eighty-fifth article of the labor contract law of the People's Republic of China stipulate different provisions on the employer's deduction or undue arrears of wages, and the refusal to pay overtime wages for workers. What provisions should we apply to arbitration and trial cases of remuneration for labor?

First of all, according to China's legislation law, administrative laws and regulations, local laws and regulations can only be applied when the law is not specified or unclear, and the effect of law is higher than administrative regulations, local laws and regulations.

The "economic compensation for illegal and dissolving labor contracts" is a normative document promulgated and implemented by the Ministry of labor. For the lower law, the labor contract law is promulgated by the National People's Congress and the upper law. When the conflict between the upper law and the inferior law occurs, the superior law is superior to the inferior one, and the labor contract law should take precedence over the economic compensation measures for breaking the law and relieving the labor contract.

Secondly, in May 2014, the Beijing Higher People's court and the Beijing labor dispute arbitration committee's summary of the Symposium on the application of law on labor dispute cases (two) (hereinafter referred to as "meeting minutes two") set a unified standard for the judiciary and the dispute parties on issues such as delinquency and embezzling the wages of laborers. It stipulates that "third financial compensation measures for violation and dissolution of labor contracts" issued by the Ministry of labour, [1994]481, and fourth stipulate that the economic compensation should be paid. The Arbitration Commission and the court shall clarify to the laborers that they should be dealt with by the labor administrative department in accordance with the eighty-fifth provision of the labor contract law, and the workers who insist on claiming economic compensation should reject their request.

To sum up, in regard to the economic compensation for recourse to labor remuneration, the conference minutes two did not appear even when the case occurred. However, according to the applicable principles of the law of the preceding legislature, the provisions of the labor contract law should be applied, and the employing units should pay part of their wages in the time limit prescribed by the labor administrative department. If they fail to pay the bill over time, they shall be ordered to pay compensation to the workers according to the standard of fifty percent or less of the amount payable by the employing unit.

In practice, there has been a lot of controversy over the application of the law of economic compensation for recourse to labor remuneration.

The introduction of the meeting minutes (two) has unified the standard of judgement in this area in Beijing.

In short, the worker's claim for compensation for labor remuneration shall be handled by the labor administrative department in accordance with the eighty-fifth provision of the labor contract law.

(the author is director of labor law department, Beijing strategy law firm)