LCL 85; RLSS 26; Labor Inspection Orders to Pay

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The following provisions of the Labor Contract Law of the People’s Republic of China (LCL) and the Regulations on Labor Security Supervision (RLSS) both detail the powers of Labor Inspection to order employers to pay wages and penalties. Despite the appeal of these provisions, the problem is that Labor Inspection often refuses to take any action when they deem the requests in the complaint to be matters of controversy. (The issue with this line of reasoning should be obvious - aren’t, at least at some level, all matters about which Labor Inspection complaints are made matters of controversy? If there weren’t some disagreement who would file a complaint? But anyway …). When this happens Labor Inspection will often suggest you file a case with Labor Arbitration as arbitration is charged with deciding matters of controversy Thus it can be preferable to skip inspection and simply file with arbitration from the start.

(1) LCL - Labor Contract Law of the People’s Republic of China

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042501.htm 

中华人民共和国劳动合同法

http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/fl/201605/t20160509_239643.html

Article 85 - Payment and Penalty Orders from Labor Inspection

Where an employing unit commits one of the following acts, the administrative department of labor shall order it to pay the labor remuneration, give overtime pay or make other financial compensation within a time limit; if the labor remuneration is lower than the local minimum wage rate, it shall pay the difference. If it fails to make such payment at the expiration of the time limit, it shall be ordered to pay an additional compensation to the worker at a rate of not less than 50 percent but not more than 100 percent of the amount payable:

(1) failing to pay a worker his labor remuneration on time and in full as stipulated in the labor contract or as prescribed by the State;

(2) paying labor remuneration at a rate below the local minimum wage rate;

(3) arranging overtime work but giving no overtime pay; or

(4) failing to pay the worker financial compensation pursuant to the provisions of this Law when revoking or terminating a labor contract.

第八十五条　

用人单位有下列情形之一的，由劳动行政部门责令限期支付劳动报酬、加班费或者经济补偿；劳动报酬低于当地最低工资标准的，应当支付其差额部分；逾期不支付的，责令用人单位按应付金额百分之五十以上百分之一百以下的标准向劳动者加付赔偿金：

（一）未按照劳动合同的约定或者国家规定及时足额支付劳动者劳动报酬的；

（二）低于当地最低工资标准支付劳动者工资的；

（三）安排加班不支付加班费的；

（四）解除或者终止劳动合同，未依照本法规定向劳动者支付经济补偿的。

(2) Regulations on Labor Security Supervision 

劳动保障监察条例

http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/xzfg/201604/t20160412_237898.html 

Article 26

If an employer commits one of the following acts, the labor security administrative department shall order the employer to pay the wages and salaries of the workers within a time limit, or to pay the difference between the wages of the workers below the local minimum wage standard, or to pay the the economic compensation for the termination of the labor contract; Where payment is made later than ordered, the employer shall be ordered to pay compensation to the worker in accordance with the standard of 50% to 100% of the amount payable:

(1) Deductions or unpaid wages of workers without reason;

(2) The wages paid to workers are lower than the local minimum wage standards;

(3) Terminating the labor contract without giving the worker economic compensation according to law.

第二十六条

用人单位有下列行为之一的，由劳动保障行政部门分别责令限期支付劳动者的工资报酬、劳动者工资低于当地最低工资标准的差额或者解除劳动合同的经济补偿；逾期不支付的，责令用人单位按照应付金额50%以上１倍以下的标准计算，向劳动者加付赔偿金：

（一）克扣或者无故拖欠劳动者工资报酬的；　　

（二）支付劳动者的工资低于当地最低工资标准的；

（三）解除劳动合同未依法给予劳动者经济补偿的。

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