Rules for Handling Arbitration Cases on Labor and Personnel Disputes (2017)

Rules for Handling Arbitration Cases on Labor and Personnel Disputes (2017) Order of the Ministry of Human Resources and Social Security (No. 33) The Rules for Handling Arbitration Cases on Labor and Personnel Disputes , as deliberated and adopted at the 123rd executive meeting of the Ministry of Human Resources and Social Security on April 24, 2017, are hereby issued, and shall come into force on July 1, 2017. Minister: Yin Weimin May 8, 2017 Rules for Handling Arbitration Cases on Labor and Personnel Disputes Chapter I General Provisions Article 1 For the purposes of handling labor and personnel disputes (hereinafter referred to as “disputes”) in an impartial and timely manner and standardizing the procedures for handling arbitration cases, these Rules are developed in accordance with the Law of the People's Republic of China on the Mediation and Arbitration of Labor Disputes (hereinafter referred to as the “ Mediation and Arbitration Law ”), the Civil Servant Law of the People's Republic of China (hereinafter referred to as the “ Civil Servant Law ”), the Regulation on the Personnel Management of Public Institutions , the Regulation on Nonmilitary Personnel of the People's Liberation Army of China , other relevant laws and regulations, and the relevant provisions of the State Council. Article 2 These Rules shall apply to the arbitration of the following disputes: (1) Disputes arising from the confirmation of a labor relation, the conclusion, performance, modification, rescission or termination of a labor contract, or in connection with working hours, rest and leave, social insurance, benefits, training, labor protection, labor remuneration, medical expenses for work-related injuries, economic compensation, or indemnity, among others, between an organization such as an enterprise, individual economic organization, and privately-owned non-enterprise entity and laborer or between a government authority, public entity, or social group and a laborer who has established a labor relation with it. (2) Disputes arising from the performance of an employment contract between a government authority subject to the Civil Servant Law and a civil servant employed by it or between a government authority (entity) administered by reference to the Civil Servant Law and a staff member employed by it. (3) Disputes arising from the termination of personnel relation or the performance of an employment contract between a public entity and the employee who has established the personnel relation with the entity. (4) Disputes arising from the termination of the personnel relation or the performance of an employment contract between a social group and the employee who has established the personnel relation with the group. (5) Disputes arising from the performance of an employment contract between an entity employing civilian staff members of the military and the staff member employed by it under the contract. (6) Other disputes that shall be handled by the arbitration commission for labor and personnel disputes (hereinafter referred to as the “arbitration commission”) as prescribed by any law or regulation. Article 3 The arbitration commission shall handle dispute cases under the principles of legality and impartiality, mediation first and rendering an award in a timely manner. Article 4 The arbitration commission shall set up a concrete division as its administrative office, which is named as the court of arbitration for labor and personnel disputes (hereinafter referred to as the “arbitration court”). Article 5 For a dispute involving ten or more laborers who file a common request or labor disputes arising from the performance of a collective contract, the arbitration commission shall docket it and hear it in priority. Chapter II General Provisions Article 6 Where an employer involved in a dispute is unable to assume the relevant liability because it has not obtained the business license, its business license has been revoked, it continues its business operation after the expiration of its business license, it is ordered to close down or is administratively dissolved, or it is dissolved or closes its business, the employer and its investor, sponsor or its governing body shall be deemed as a co-party. Article 7 Where a dispute arises between a laborer and an individual contractor and an arbitration application is filed with the arbitration commission in accordance with the law, the contract-issuing organization and the individual contractor shall be the co-parties. Article 8 The place where a labor contract is performed shall be the actual workplace of the laborer, and the place where the employer is located shall be the place where it is registered or its main administrative office is located. If the employer has not been registered, the place where its investor or sponsor or the governing body is located shall be the place where the employer is located. Where both parties apply for arbitration respectively to the arbitration commission at the place where the labor contract is performed and to the arbitration commission at the place where the employer is located, the arbitration commission at the place where the labor contract is performed shall have jurisdiction over the case. If the labor contract is performed in several places, the arbitration commission that first accepts the application shall have jurisdiction over the case. If the place where the labor contract is performed is unclear, the arbitration commission at the place where the employer is located shall have jurisdiction over the case. After a case is accepted, the change of the place where the labor contract is performed or the place where the employer is located shall not affect the jurisdiction of the arbitration commission having jurisdiction over the dispute. Article 9 Where an arbitration commission finds that any case accepted by it is not within its jurisdiction, it shall transfer the case to the arbitration commission having jurisdiction over the case, and notify the parties in writing. Any arbitration commission to which the aforesaid case is transferred shall accept the case in accordance with the law. If the arbitration commission to which the case is transferred deems that the transferred case is not within its jurisdiction in accordance with the relevant provisions or no agreement is reached after consultation between arbitration commissions with respect to a jurisdiction dispute fails, the matters shall be reported to the competent department of the common arbitration commission at the next higher level to designate jurisdiction. Article 10 Any party who plans to raise an objection to jurisdiction shall file an objection in writing before the expiration of the period of defense. The arbitration commission shall examine the objection to jurisdiction raised by the party. It shall transfer the case to the arbitration commission having jurisdiction if the objection is tenable and notify the parties in writing, otherwise, it shall make a written decision to deny the objection. Where the party fails to raise an objection within the prescribed period, the arbitration proceedings shall continue without interruption. Article 11 A party who plans to apply for withdrawal shall file the application before the hearing of the case commences and state the reasons. If the reason for withdrawal is known after the hearing of the case commences, the application may be filed before the conclusion of court debate. Where a party files a withdrawal application after the conclusion of court debate, the arbitration proceedings shall proceed without interruption. The arbitration commission shall, within three days after a withdrawal application is filed, make a decision either orally or in writing. The decision made orally shall be included in the written records. Article 12 The chairman of an arbitration commission or the person in charge of the arbitration court entrusted by the chairman of the arbitration commission shall decide whether an arbitrator or a clerk shall withdraw. The withdrawal of the chairman of the arbitration commission as an arbitrator in a case shall be decided by the arbitration commission. Before the decision on the withdrawal is made, the person for whom a withdrawal application is filed shall suspend the participation in the handling of the case, unless it is necessary to take emergency measures for the handling of the case. Article 13 A party shall be responsible for presenting evidence for the claim thereof. If any evidence relating to the dispute is obtained and controlled by the employer, the employer shall provide it; and if the employer fails to do so, it shall assume the adverse consequences. Article 14 Where there is no specific provision in any law and it is impossible to determine the burden of proof according to Article 13 of these Rules, the arbitration tribunal may, under the principles of fairness and good faith, determine the burden of proof by taking into comprehensive consideration such factors as the party's ability to present evidence. Article 15 Any party who bears the burden of proof shall present the relevant evidence within a period specified by the arbitration commission. If it is indeed difficult for the party to present evidence within the said period, it may apply to the arbitral tribunal for the extension of the period and the arbitral tribunal will extend the period in an appropriate manner based on the party's application. If the party fails to present evidence within the prescribed period, the arbitration commission shall order it to state the reason. If the party refuses to give any reason or the reason is not justified, the arbitration commission may reject the evidence according to different circumstances, or admit the evidence but admonish the party. Article 16 Where a party is unable to collect evidence by itself due to any objective reason, the arbitration commission may, upon the application of such a party, collect the evidence by reference to the relevant provisions of the Civil Procedure Law. If the arbitration commission deems it necessary, it may also decide to collect evidence by reference to the relevant provisions of the Civil Procedure Law. Article 17 Where an arbitration commission conducts investigation and collects evidence in accordance with the law, the relevant entities and individuals shall provide assistance and cooperation. When an arbitration commission conducts investigation and collects evidence, at least two staff members shall be present and show their work certificates and the letter of introduction issued by the arbitration commission to the target of investigation. Article 18 The relevant provisions of rules of evidence in civil procedures may apply, mutatis mutandis, to the matters involved in the handling of disputes such as the form of evidence, the presentation of evidence, the exchange of evidence, the cross-examination of evidence, and the identification of evidence, if such matters are not provided in these Rules. Article 19 Arbitration periods include statutory periods and periods designated by arbitration commissions. The provisions of the Civil Procedure Law on the calculation of arbitration periods may apply, mutatis mutandis, to the calculation of arbitration periods by arbitration commissions, if they are not provided in these Rules. Article 20 The arbitration document served by an arbitration commission must have a proof of service, and the person to be served shall record the date of receipt on and affix the signature or seal thereof to the proof of service. The date of receipt affixed to the proof of service by the person to be served shall be the date of service. Where it is impossible to serve the arbitration document due to the enterprise's business suspension or any other reason and ten or more laborers are involved, or the person to be served refuses to sign for the receipt of the arbitration document and thus the arbitration document is placed or pasted at the domicile of the person to be served, which is recorded by means of pictures, videos or other methods, the arbitration document shall be deemed to have been served three days after the date when the arbitration document is placed or pasted. This circumstance is not subject to the restriction of paragraph 1 of this Article. The provisions of the Civil Procedure Law on the modes of service shall apply, mutatis mutandis, to the methods of serving of arbitration documents, if they are not provided in these Rules. Article 21 After a case is closed, an arbitration commission shall archive all materials formed in the handling process. Article 22 Arbitration case files are categorized into principal files and supplementary files for bookbinding purposes. The principal files include the arbitration application, notice of acceptance (non-acceptance), defense, identification materials of the parties and other parties who participate in the arbitration proceedings, power of attorney, evidence collected upon investigation, written records of inspections, evidentiary materials provided by the parties, materials on entrusted identification, notice of court session, written records of hearing sessions, notice of adjournment, application for withdrawing the arbitration, mediation statement, arbitral award, written decision, case transfer letter, and proof of service, among others. The supplementary files include the approval form for docketing the case, approval form for postponing the hearing, approval form for suspending the hearing, investigation outlines, written records of file review, meeting minutes, discussion records, and approval form for closing the case, among others. Article 23 Arbitration commissions shall establish a system for consulting case files and shall allow the parties and their agents to consult or reproduce principal case files. Article 24 Files for cases closed by way of arbitral award shall be preserved for no less than ten years and files for cases closed by way of mediation or any other means shall be preserved for no less than five years, unless otherwise provided by the state. Case files, after the expiration of their preservation period, shall be handled in accordance with the provisions of the state on archives management. Article 25 Where any state secret ......