Judicial Determination Of Double Wage Difference Calculation

After the implementation of the Labor Contract Law in 2008,in the case that the employer did not sign a written labor contract with the laborer,the laborer was given the right to claim double wages,so that the protection of the legitimate rights and interests of the laborer reached a new height.However,in the judicial practice,with the continuous improvement of the workers’ rights awareness,more and more laborers have claimed to the employer that they have not signed a written labor contract for double wage compensation.Through the statistics of the relevant judicial documents on “double pay compensation in the absence of a written labor contract”,it is found that the number of such cases is increasing year by year and the standards of judicial judgment are different.In order to effectively protect the legitimate rights and interests of workers and maintain harmonious and stable labor relations,the court should unify the judicial standards for calculating the double wage difference.At present,there are two major problems in the calculation of double wage difference in the field of judicial practice,which need to be solved,that is,the starting and calculating base of the double-wage wage arbitration.The calculation of the double-wage difference arbitration statute involves two core disputes: First,how to define the nature of the double wage difference? This directly determines the legal application of the doubling of the double wage differential arbitration.In most of the provinces,the view is that the nature of the double wage difference applies the general arbitration statute for punitive damages.Only Hainan Province believes that the nature of the double wage difference is the special statute of limitations for labor compensation.Second,how to understand “know or Should you know?" This directly affects the objective fact finding of the double-wage arbitration statute.There are great differences in this judicial practice.Some people think that when a worker has been in employment for one month,he knows or should know that his or her legitimate rights and interests have been infringed.At this time,it should be regarded as the objective fact of the statute of limitations.In this view,in recent years,more and more workers have claimed that the double wage difference is not supported by the court because it exceeds the statute of limitations.The root cause lies in the employee’s unequal position with the employer during his or her employment.Objectively,there is no condition for claiming rights.Therefore,most courts have identified the objective facts of the double-wage difference arbitration by legal interpretation and specific cases,so as to maximize the protection of workers’ claims.In the current practice,there are three viewpoints on the objective facts of the statistic of the double-wage difference arbitration,which are the date of commencement of the illegal act,the date of termination of the illegal act and the expiration of the performance period.Under the above three viewpoints,the specific criteria for the starting point of arbitration statutes are the next day of entry for one month,the next day of entry for one month,the next day of entry for one year,the date of termination of labor relations,and self-imposed Zhang.From the date of the right.The author believes that in the case of laborers refusing to sign labor contracts,the statute of limitations should be counted from the next day of the month after the entry of the employee.In the case that the employer does not sign a labor contract with the laborer,the time limit for arbitration shall be counted from the date of termination of the labor relationship.The core dispute point involved in the calculation of the double wage difference is how to understand the meaning of “salary”.There are three differences in this practice: first,narrow wages and general wages,narrow wages refer to employers and workers.The agreed fixed salary and the general salary includes all income including wage income;second,pre-tax wages and after-tax wages;third,whether non-recurring income such as overtime pay,subsidies,allowances and bonuses should be included.Calculate the base? The corresponding double wage difference calculation base has four types: fixed salary,average salary,real wage,and wages.The author believes that,in principle,the deserved salary is used as the calculation base of the double wage difference.In the special circumstances such as no-pay or leave of absence,it is more reasonable to use the fixed salary as the calculation base of the double wage difference.