Enterprises Do Not Sign Labor Contracts And Pay Two Times Their Wages At Their Own Risk.

In January 2013, Ding went to a sales company to do after-sale service, but the company did not sign a written labor contract with Ding.

In July 2014, due to changes in operating conditions, the company was closed down and some employees gradually left the company.

In early August, Ding also left the company.

Ding asked the company to pay its wages in July, and submitted an arbitration application to the local labor and personnel dispute arbitration committee, which required the company to pay labor remuneration and two times wages totaling 18223 yuan.

The Arbitration Commission heard that

"Article thirtieth provides that the employer shall pay the workers in full and in time in accordance with the stipulations of the labor contract and the state regulations.

The eighty-second clause and the first paragraph stipulate that the employer shall pay two times the monthly salary to the laborer if he fails to conclude a written labor contract with the employee for more than one month after the date of his own employment.

Labor contract is the most direct evidence for determining the rights and obligations of laborers and employers.

And determine the most effective and clear basis for fault attribution.

If the employer fails to sign a labor contract with the laborers, if the labor dispute occurs on both sides, the Arbitration Commission will use the referee method presumed to establish a fact to support one party's related claims.

Specifically, in the case, the sales company did not sign a labor contract with Ding after its application for Ding Mou, and the Arbitration Commission made the presumption result advocated by Ding Ding according to law, which is also a kind of behavior that sales companies do not comply with labor laws and regulations.

。

Finally, the Arbitration Commission, in the case of mediation failure, decided to pay 1800 yuan and two times the salary of 15998 yuan by the sales company.

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After resigning from a company, Wang asked the company to pay overtime during weekends and holidays.

In the course of the court hearing, the company, as the defendant, put forward "who advocates the proof" and asked Wang to submit relevant evidence for his overtime work.

However, Wang can only submit salary slips and witness testimony of his colleagues, proving that he has indeed worked overtime, such as attendance records and other evidence in the hands of the company, but the company is not willing to provide.

From a realistic perspective, there are many difficulties in giving workers evidence of overtime.

In many units, there is no written evidence in the form of oral notification for overtime work. Whether overtime is often reflected in wages, punch card records, work records, etc., however, these evidence is kept in the hands of employers, and laborers can not get them.

Therefore, although the principle of distribution of burden of proof in civil procedure law is "who advocates who gives evidence", the seventh provision of the Supreme People's Court on the evidence of civil litigation stipulates that when the law does not specify the provisions, and in accordance with the provisions and other judicial interpretations, the burden of proof can not be determined, the people's court can determine the burden of proof based on the principle of fairness and honesty and credibility, and the ability of the parties to give evidence.

This means that in the allocation of the burden of proof in overtime, the employer should generally take the evidence of the specific working hours of the employees, and the employer should bear the burden of proof for the relevant facts.

However, it is obvious that it is unreasonable for employers to bear the fact that the burden of proof is against them.

At the same time, many workers advocate overtime for a long time. If they require the employer to provide corresponding evidence, it will be too unfavorable for the employer.

Therefore, in the judicial interpretation of labor disputes, the Supreme People's court has clearly stipulated the issue of the burden of proof for overtime work: "workers who claim overtime pay should bear the burden of proof on the fact of overtime.

However, the workers have evidence to prove that the employer is in possession of the evidence of overtime facts, and the employer does not provide the employer with adverse consequences.

Labourers are in a disadvantaged position in labor dispute cases. Taking into account the practical difficulties of workers' burden of proof, the burden of proof can not be overly strict on workers' evidence, and the burden of proof can be lightened appropriately. As long as the workers' basic evidence, such as attendance sheet, overtime notice, wage slip, handover record and witness testimony, can be proved to be overtime, it can be regarded as the burden of proof.