Are labor dispute arbitrators judicial personnel?

no, the labor dispute arbitration commission is not an administrative organ. The labor dispute arbitration committee is composed of labor administrative departments, representatives of trade unions at the same level, and representatives of employers. The chairman of the labor dispute arbitration committee shall be a representative of the labor administrative department. The labor dispute arbitration commission is a quasi-judicial national arbitration institution authorized by the state to be established according to law, which exercises the arbitration right on behalf of the state and is guaranteed by the state's compulsory force to implement its effective award, and the three parties jointly handle labor disputes.

At work, employees and employers can't avoid conflicts. When we have disputes with employers, how can we solve these disputes? Usually, in order to better solve the contradictions between the two parties, both parties are generally chosen to negotiate for settlement. If negotiation fails, they can apply for labor dispute arbitration.

1. Is the labor dispute arbitration commission an administrative organ?

The labor dispute arbitration commission is a quasi-judicial national arbitration institution authorized by the state to be established according to law, which exercises the arbitration power on behalf of the state and is enforced by the state to ensure the implementation of its effective award, and the three parties jointly handle labor disputes. Therefore, although there are representatives of the labor security department in the labor dispute arbitration commission, although its director is held by the representative of the labor security department, and its office is located in the labor security department, it can be said with certainty that the labor dispute arbitration commission is not an administrative organ.

in addition, it needs to be clear that the arbitration award of the labor dispute arbitration commission is not a specific administrative act. A specific administrative act refers to an act carried out by an administrative organ within the scope of its statutory functions and powers, which directly affects the rights and obligations of a specific person or thing. Although the award of the labor dispute arbitration commission is made for a specific person and a specific matter, and its influence on the rights and obligations of the parties can be affirmed, because the labor dispute arbitration commission is an arbitration institution rather than an administrative organ, its arbitration award cannot be considered as a specific administrative act.

II. What should the parties do if they refuse to accept the arbitration award of labor disputes

Article 49 of the Law on Mediation and Arbitration of Labor Disputes, the employer has evidence to prove that the arbitration award stipulated in Article 47 of this Law has one of the following circumstances, and may apply to the Intermediate People's Court where the labor dispute arbitration commission is located for cancellation of the award within 3 days from the date of receiving the arbitration award:

(1) The applicable laws and regulations are indeed wrong;

(2) the labor dispute arbitration commission has no jurisdiction;

(3) violating legal procedures;

(4) The evidence on which the award is based is forged;

(5) The other party conceals evidence that can affect matter of justice;

(6) The arbitrator has asked for bribes, engaged in malpractices for personal gain or perverted the law in arbitrating the case.

if the people's court has formed a collegial panel to examine and verify that the ruling falls under any of the circumstances specified in the preceding paragraph, it shall make a ruling to cancel it.

if the arbitration award is revoked by the people's court, the parties may bring a lawsuit to the people's court on the labor dispute within 15 days from the date of receiving the ruling.

Third, how to deal with being dismissed without a labor contract

If you are dismissed without a labor contract, you can apply for labor arbitration and demand to pay double wages and unpaid wages without a labor contract; The employer who has been illegally dismissed shall pay double indemnity according to the standard of economic compensation, and the economic compensation shall be paid to the employee according to the standard of one month's salary for each full year.

IV. How to protect rights when being dismissed without signing a labor contract

If the unit violates the law, the laborer can ask for double payment of economic compensation. The economic compensation shall be calculated according to the number of years the laborer has worked in this unit, and one month's salary shall be paid as economic compensation for each full year of work, one month's salary for more than half a year and less than one year, and half a month's salary for less than half a year. Based on the actual wages of the workers themselves. The unit that terminates the labor contract needs to give 3 days' notice in advance. If there is no notice in advance, it needs to pay another month's salary as a payment in lieu of notice. In judicial practice, usually only one of economic compensation and payment in lieu of notice will be supported, and you can choose by yourself. It's illegal not to sign a labor contract. You can ask your unit to pay double wages, up to 11 months. Evidence can prove labor relations, such as salary slips, punch records, tooling, work information, colleague testimony, etc. Suggestions can be settled through consultation with the company. If negotiation fails, an application can be made. The application for labor arbitration should be made at the labor arbitration committee in the place where the unit is registered, or a lawyer can be entrusted to arbitrate on its behalf. The time limit for labor arbitration is one year, counting from the date when the infringement is known or should be known. Those who refuse to accept the arbitration may also bring a suit in court.

V. How to prove labor relations without signing a labor contract after working for 7 years

(1) Vouchers or records of wage payment (payroll roster for employees) and records of paying various social insurance premiums;

(2) identification certificates such as "work permit" and "service certificate" issued by the employer to the workers;

(3) Employment records such as "Registration Form" and "Registration Form" filled out by the employee;

(4) attendance records;

(5) Testimonies of other workers, etc.

VI. What materials should be prepared to apply for labor arbitration when being dismissed illegally

(1) Application for Arbitration. The applicant shall truthfully and accurately fill out the Application for Arbitration in triplicate, two of which shall be submitted to the Arbitration Commission by the applicant himself or his entrusted agent, and one shall be kept by the applicant;

(2) identification. If the applicant is a laborer, submit the original and photocopy of his/her identity certificate; if the applicant is an employer, submit the duplicate and photocopy of his/her business license, the identity certificate of his/her legal representative, the identity certificate of the entrusted agent, the power of attorney, etc.

(3) relevant materials that can prove the existence of labor relationship with the respondent, such as labor contract (employment contract or agreement), notice of dissolution or termination of contract, payroll (clause), social insurance payment certificate and other materials and copies;

(4) evidence of illegal dismissal.

In fact, as long as a labor relationship is established, no matter how long I have worked in the employer, the employee has the right to apply for labor arbitration after being dismissed illegally. However, when applying for labor arbitration, if the employee cannot prove that there is a factual labor relationship with the employer, the arbitration institution will not accept the request of the party concerned.

Legal basis

Law on Mediation and Arbitration of Labor Disputes

Article 2 This Law shall apply to the following labor disputes between employers and laborers in the People's Republic of China:

(1) Disputes arising from the confirmation of labor relations;

(2) disputes arising from the conclusion, performance, alteration, dissolution and termination of labor contracts;

(3) Disputes arising from delisting, dismissal, resignation and resignation;

(4) Disputes arising from working hours, rest and vacation, social insurance, welfare, training and labor protection;

(5) Disputes arising from labor remuneration, medical expenses for work-related injuries, economic compensation or compensation;

(6) Other labor disputes as stipulated by laws and regulations.

article 17 the labor dispute arbitration Committee shall be established in accordance with the principles of overall planning, rational layout and adaptation to actual needs. The people's governments of provinces and autonomous regions may decide to set up in cities and counties; The people's government of a municipality directly under the Central Government may decide to establish it in a district or county. Municipalities directly under the central government and cities divided into districts may also set up one or more labor dispute arbitration committees. The labor dispute arbitration commission shall not be established at different levels according to administrative divisions.

article 18 formulating arbitration rules and guiding the arbitration of labor disputes. the labor administrative department of the State Council shall formulate arbitration rules in accordance with the relevant provisions of this law. The labor administrative departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall guide the arbitration of labor disputes in their respective administrative areas.

article 19 composition and responsibilities of the labor dispute arbitration Committee the labor dispute arbitration Committee is composed of representatives from the labor administrative department, trade unions and enterprises. The members of the labor dispute arbitration committee shall be singular.

the labor dispute arbitration commission shall perform the following duties according to law:

(1) to appoint or dismiss full-time or part-time arbitrators;

(2) accepting labor dispute cases;

(3) discussing major or difficult labor dispute cases;

(4) supervise the arbitration activities.

the labor dispute arbitration commission has an office, which is responsible for the daily work of the labor dispute arbitration commission.