| Notice by the Ministry of Human Resources and Social Security and the Supreme People's Court of Jointly Issuing the First Group of Model Cases of Labor and Personnel Disputes | | 人力资源社会保障部、最高人民法院关于联合发布第一批劳动人事争议典型案例的通知 |
| (Letter No. 62 [2020] of the Ministry of Human Resources and Social Security) | | （人社部函〔2020〕62号） |
| The departments (bureaus) of human resources and social security and higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; and the Human Resources and Social Security Bureau of Xinjiang Production and Construction Corps and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region: | | 各省、自治区、直辖市人力资源社会保障厅(局)、高级人民法院，解放军军事法院，新疆生产建设兵团人力资源社会保障局、新疆维吾尔自治区高级人民法院生产建设兵团分院： |
| For the purposes of implementing the requirements raised in the Opinions on Strengthening the Building of a Mechanism of Connection between Arbitration and Litigation of Labor and Personnel Disputes and the Opinions on Issues concerning Properly Handling Labor Relations Involving the COVID-19 Outbreak (No. 17 [2020] of the Ministry of Human Resources and Social Security) jointly issued by the Ministry of Human Resources and Social Security and the Supreme People's Court including “strengthening connection between arbitration and trial and unifying case handling standards” and “carrying out analysis of similar cases and jointly selecting and issuing model cases,” further increasing guidance efforts to the handling of cases by the arbitration agencies and people's courts in all regions, effectively improving the quality and effect in the handling of cases of labor and personnel disputes, and sparing no effort to maintain harmonious labor and personnel relations and social stability, the first group of model cases of labor and personnel disputes is hereby issued for reference to the arbitration agencies and people's courts in all regions in their handling of cases. | | 为贯彻落实人力资源社会保障部、最高人民法院联合发布的《关于加强劳动人事争议仲裁与诉讼衔接机制建设的意见》(人社部发[2017]70号)、《关于妥善处置涉疫情劳动关系有关问题的意见》(人社部发[2020]17号)提出的“加强裁审衔接，统一案件处理标准”“开展类案分析，联合筛选并发布典型案例”等要求，进一步加大对各地仲裁机构、人民法院办案指导力度，切实提高劳动人事争议案件处理质效，全力维护劳动人事关系和谐与社会稳定，现发布第一批劳动人事争议典型案例，请各地仲裁机构、人民法院在办案中予以参照。 |
| Annex: Model Cases of Labor and Personnel Disputes (First Group) | | 附件：劳动人事争议典型案例(第一批) |
| Ministry of Human Resources and Social Security | | 人力资源社会保障部 |
| Supreme People's Court | | 最高人民法院 |
| July 10, 2020 | | 2020年7月10日 |
| Annex: | | 附件 |
| Model Cases of Labor and Personnel Disputes (First Group) | | 劳动人事争议典型案例(第一批) |
| Table of Contents | | 目 录 |
| I. Cases involving the COVID-19 Outbreak | | 一、涉疫情类 |
| Case No. 1 Whether an employer may suspend a labor contract on the ground that the COVID-19 outbreak is an event of force majeure | | 案例1．用人单位能否以新冠肺炎疫情属不可抗力为由中止劳动合同 |
| Case No. 2 How to determine an employee's refusal to normally provide work on the ground of being under medical observation at home during the COVID-19 outbreak | | 案例2．新冠肺炎疫情期间，劳动者以处于居家观察期为由拒绝提供正常劳动如何认定 |
| Case No. 3 How to pay the wage of an employee who was stranded in Hubei Province when his employer suspended business during the COVID-19 outbreak | | 案例3．新冠肺炎疫情期间，如何支付因工滞留湖北劳动者在企业停工停产期间的工资待遇 |
| Case No. 4 How to comprehend “a wage payment cycle” and correctly pay wages of an employee who fails to return to work on time | | 案例4．如何理解“一个工资支付周期”，正确发放未及时返岗劳动者工资待遇 |
| Case No. 5 Whether wage may be paid in accordance with the provisions on suspension of business where the business of an employer is partially suspended affected by the epidemic outbreak | | 案例5．受疫情影响，用人单位部分停工停产的，能否按照停工停产规定支付工资待遇 |
| Case No. 6 Whether an employer has the right to unilaterally arrange its employee to take the paid annual leave during the period of delayed work resumption affected by the epidemic outbreak | | 案例6．受疫情影响延迟复工复产期间，用人单位是否有权单方面安排劳动者休带薪年休假 |
| Case No. 7 How to handle “shared employment” where the lending employer fails to continue the performance of the contract | | 案例7．员工借出企业无法继续履行协议，“共享用工”如何处理 |
| II. Case involving Remuneration | | 二、劳动报酬类 |
| Case No. 8 How to rapidly resolve collective labor disputes over arrears of wage for migrant workers | | 案例8．如何快速处理拖欠农民工工资集体劳动争议 |
| Case No. 9 Whether wages paid during the training period are special training expenses | | 案例9．培训期间工资是否属于专项培训费用 |
| III. Cases involving Labor Contracts | | 三、劳动合同类 |
| Case No. 10 Whether the provision of a false diploma by an employee may result in invalidity of a labor contract | | 案例10．劳动者提供虚假学历证书是否导致劳动合同无效 |
| Case No. 11 Whether the employer should make double pay where, after an unfixed-term labor contract is deemed to have been signed, the employer still fails to conclude a labor contract with the employee | | 案例11．视为订立无固定期限劳动合同后用人单位仍未与劳动者签订劳动合同的是否应当支付第二倍工资 |
| Case No. 12 Whether it is necessary for an employee to assume the liability for breach of contract involving non-competition if an employer fails to pay the economic compensation for non-competition | | 案例12．用人单位未支付竞业限制经济补偿，劳动者是否需承担竞业限制违约责任 |
| Case No. 13 Whether the flexible working hour system implemented based on the verbal stipulation of an employer and its employee is valid | | 案例13．用人单位与劳动者自行约定实行不定时工作制是否有效 |
| Case No. 14 How an employer exercises the right to hire employees on its own initiative and adjusts the position and workplace of an employee | | 案例14．用人单位如何行使用工自主权合法调整劳动者的工作岗位和地点 |
| IV. Other Cases | | 四、其他类 |
| Case No. 15 Whether the original employer may rescind the employment contract with a scientific research personnel of a public institution where he was dismissed in the duration when he left office to start up business | | 案例15．事业单位科研人员离岗创业期间受开除处分的，原单位能否与其解除聘用合同 |
| I. Cases involving the COVID-19 Outbreak | | 一、涉疫情类 |
| Case No. 1 Whether an employer may suspend a labor contract on the ground that the COVID-19 outbreak is an event of force majeure | | 案例1．用人单位能否以新冠肺炎疫情属不可抗力为由中止劳动合同 |
| Basic Facts | | 基本案情 |
| Zhang was an employee of a logistics company and the labor contract concluded by and between him and the logistics company stipulated that Zhang engaged in trans-provincial transport of goods with the monthly pay of CNY5,000; and the logistics company paid Zhang the monthly pay at the end of each month. Affected by the epidemic outbreak, the logistics company suspended business from February 3, 2020 according to the epidemic prevention measures taken by the local people's government. At the end of February, Zhang discovered that the logistics company did not pay him the wage for February and he inquired the human resources department of the company, which replied that “since the epidemic outbreak is an event of force majeure, the labor contract concluded by and between you and the company is hereby suspended. The company suspends business in February. It is unnecessary for you to go to work and the company has no obligation of paying you the wage.” Zhang did not understand the practice of the company. At the beginning of March, he filed an application for arbitration with the Labor and Personnel Dispute Arbitration Committee (hereinafter referred to as the “Arbitration Committee”) through the Internet. | | 张某为某物流公司员工，双方签订的劳动合同约定其从事跨省货品运送工作，月工资为5000元；物流公司于每月月底发放张某当月工资。受疫情影响，物流公司按照所在地区人民政府施行的防疫措施，自2020年2月3日起停工。2月底，张某发现公司未发工资，便询问公司人力资源部门，人力资源部门答复：“因疫情属不可抗力，公司与你的劳动合同中止，2月停工你无需上班，公司也没有支付工资的义务。”张某对此不理解，于3月初，通过互联网向劳动人事争议仲裁委员会(以下简称仲裁委员会)申请仲裁。 |
| Claim of Applicant | | 申请人请求 |
| The logistics company should pay the wage of CNY5,000 for February 2020. | | 裁决物流公司支付2020年2月工资5000元。 |
| Handling Results | | 处理结果 |
| The Arbitration Committee entered an arbitral award that the logistics company should pay Zhang the wage of CNY5,000 for February 2020. The logistics company refused to accept the arbitral award and appealed. The judgment entered by the court of first instance was consistent with the arbitral award, the logistics company did not appeal, and the judgment of first instance took effect. | | 仲裁委员会裁决物流公司支付张某2020年2月工资5000元。物流公司不服仲裁裁决起诉，一审法院判决与仲裁裁决一致，物流公司未上诉，一审判决生效。 |
| Case Analysis | | 案例分析 |
| The issue of the case is whether the logistics company can refuse to pay Zhang the wage on the ground of an event of force majeure. | | 本案的争议焦点是物流公司能否以不可抗力为由拒绝支付张某工资。 |
| The COVID-19 outbreak is a public health emergency and an event of force majeure that cannot be predicted, avoided, and overcome. Force majeure is a statutory exemption in the Civil Law. Article 117 of the Contract Law of the People's Republic of China provides that “A party who is unable to perform a contract due to an event of force majeure is exempted from liability in part or in whole in light of the impact of the event of force majeure, except otherwise provided by law.” Article 94 thereof provides that “The parties to a contract may rescind the contract under any of the following circumstances: (1) It is rendered impossible to achieve the purpose of contract due to an event of force majeure....” Article 2 of the Guiding Opinions of the Supreme People's Court on Several Issues concerning Properly Handling Civil Cases involving the COVID-19 Outbreak (I) provides that “In hearing civil cases involving the COVID-19 outbreak, the people's courts shall correctly apply the specific provisions on force majeure and strictly control the application conditions.” Article (I) of the Opinions of the Ministry of Human Resources and Social Security, the Supreme People's Court, and Five Other Departments on Issues concerning Properly Handling Labor Relations Involving the COVID-19 Outbreak (No. 17 [2020] of the Ministry of Human Resources and Social Security) provides that “Where, affected by the epidemic outbreak, the original labor contract fails to be performed, it is not allowed to temporarily stop the performance of the labor contract. After reaching a consensus upon negotiation between the employer and the employee, the original labor contract may be modified according to the law.” As a consequence, the force majeure clause may apply to the parties to a civil contract affected by the epidemic outbreak according to the law. However, such clause does not apply to the parties to a labor contract and the parties may not thereby suspend the performance of the labor contract. | | 本次新冠肺炎疫情是突发公共卫生事件，属于不能预见、不能避免且不能克服的不可抗力。不可抗力是民法的一个法定免责条款。《中华人民共和国合同法》第一百一十七条规定：“因不可抗力不能履行合同的，根据不可抗力的影响，部分或者全部免除责任，但法律另有规定的除外。”第九十四条规定：“有下列情形之一的，当事人可以解除合同：(一)因不可抗力致使不能实现合同目的……”最高人民法院《关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见(一)》第二条规定：“人民法院审理涉疫情民事案件，要准确适用不可抗力的具体规定，严格把握适用条件。”人力资源社会保障部、最高人民法院等七部门《关于妥善处置涉疫情劳动关系有关问题的意见》(人社部发[2020]17号)第(一)条规定：“受疫情影响导致原劳动合同确实无法履行的，不得采取暂时停止履行劳动合同的做法，企业和劳动者协商一致，可依法变更劳动合同。”因此，受疫情影响的民事合同主体可依法适用不可抗力条款，但劳动合同主体则不适用并不得因此中止履行劳动合同。 |
| In the present case, the logistics company claimed that the COVID-19 outbreak was an event of force majeure. The suspension of the labor contract concluded by and between both parties lacked legal basis and the arbitration committee did not admit its contension. The logistics company suspended business on February 3, 2020 and Zhang did not provide work in February. In accordance with the provisions of Article 2 of the Notice by the General Office of the Ministry of Human Resources and Social Security of Properly Handling Labor Relations during the Prevention and Control of the COVID-19 Outbreak provides that “Where an employer suspends business during a wage payment cycle, the employer shall pay wages to its employees according to the standards set forth in the labor contract. Where the suspension continues for a period longer than a wage payment cycle, for those employees who provide work as normal, the wages paid by the employer shall not be less than the standard for local minimum wages.” The arbitration committee entered an arbitral award that the logistics company should pay Zhang the wage of CNY5,000 for February 2020 according to the contractual stipulations. The judgment entered by the people's court of first instance was consistent with the arbitral award. | | 本案中，物流公司主张疫情属不可抗力，双方劳动合同因此中止缺乏法律依据，仲裁委员会不予采信。物流公司自2020年 2月3日停工，张某2月未提供劳动。根据人力资源社会保障部办公厅《关于妥善处理新型冠状病毒感染的肺炎疫情防控期间劳动关系问题的通知》(人社厅明电[2020]5号)第二条规定：“企业停工停产在一个工资支付周期内的，企业应按劳动合同规定的标准支付职工工资。超过一个工资支付周期的，若职工提供了正常劳动，企业支付给职工的工资不得低于当地最低工资标准。”仲裁委员会裁决物流公司按照劳动合同约定，支付张某 2020年2月工资5000元。一审人民法院判决结果与仲裁裁决一致。 |
| Significance | | 典型意义 |
| The clause of exemption due to an event of force majeure is not introduced to the Labor Law mainly because labor relation is an unequal relationship in subordination and it differs from the relationship between two equal parties in civil relations. If an employer is exempted due to an event of force majeure, it will directly affect the employees' right of subsistence. The remunerations are economic sources of employees for subsistence. Even though there is an event of force majeure, the said rights and interests of employees should still be safeguarded. The employer should also prudently differentiate the conditions and legal consequences for applying force majeure in civil relations and labor relations, so as to avoid erroneous application and infringement on the rights and interests of employees, and assume the consequences of violation of law arising therefrom. | | 劳动法未引入不可抗力免责条款，主要原因是劳动关系是一种从属性的不对等关系，不同于民事关系是两个平等主体之间的关系。如果用人单位因不可抗力而免责，则会直接影响劳动者生存权。劳动报酬是劳动者赖以生存的经济来源，即使出现不可抗力，劳动者的该项权益仍需予以维护，用人单位也应谨慎区分民事关系与劳动关系适用不可抗力的条件、法律后果，避免适用错误，侵害劳动者权益，并因此承担违法后果。 |
| Case No. 2 How to determine an employee's refusal to provide work as normal on the ground of being under medical observation at home during the COVID-19 outbreak | | 案例2．新冠肺炎疫情期间，劳动者以处于居家观察期为由拒绝提供正常劳动如何认定 |
| Basic Facts | | 基本案情 |
| On April 2, 2019, Zhang and a commercial company concluded a labor contract with the term of two years and both parties agreed that the monthly wage was CNY10,000. During the spring festival in 2020, Zhang returned to his parents' in another province to take a vacation. On February 3 of the same year, Zhang said that there were close contacts of confirmed cases in the residential community where his parents lived and he was under medical observation at home for 14 days according to the requirements of the property management company of the residential community and he refused to go back to work. After 14 days, Zhang said that the residential community where the house he rented was located in the city of his employer prohibited tenants from entering and he still failed to return to work on schedule. On March 16, 2020, Zhang returned to work and upon negotiation with Zhang, the commercial company paid Zhang the living expenses from March 3 to 6, 2020, which exceeded a wage payment cycle. Zhang deemed that the conduct of the commercial company was illegal and he filed an application for arbitration with the Arbitration Committee. | | 2019年4月2日，张某与某商业公司签订了两年期劳动合同，双方约定月工资为10000元。张某2020年春节期间返回外省父母家休假。同年2月3日，张某称其父母所在小区出现新冠肺炎确诊患者密切接触者，故按小区物业公司要求居家观察14天，拒绝返回公司上班。14天后，张某表示因其在公司所在城市租住的小区禁止租户入住，仍不能按期返岗。2020年3月16日，张某返回公司上班，商业公司经与张某协商后向张某支付了 2020年3月3日至3月16日期间超过一个工资支付周期的生活费。张某认为该行为违法，遂向劳动人事争议仲裁委员会(以下简称仲裁委员会)申请仲裁。 |
| Claim of Applicant | | 申请人请求 |
| The commercial company should pay the wage balance of CNY4,800 from March 3 to 16, 2020. | | 裁决商业公司支付2020年3月3日至3月16日期间工资差额4800元。 |
| Handling Results | | 处理结果 |
| The Arbitration Committee entered an arbitral award that Zhang's arbitration claim should be dismissed. | | 仲裁委员会裁决驳回张某的仲裁请求。 |
| Case Analysis | | 案例分析 |
| The issue of the case was how to determine Zhang's refusal to provide work as normal on the ground of being under medical observation at home during the COVID-19 outbreak. | | 本案的争议焦点是新冠肺炎疫情期间，张某以处于居家观察期为由拒绝提供正常劳动应如何认定。 |
| Article 39 of the Law of the People's Republic of China on the Prevention and Treatment of Infectious Diseases (hereinafter referred to as the “Law on the Prevention and Treatment of Infectious Diseases”) provides that “When finding an infectious diseases under Class A, the medical agency shall immediately take the following measures: (1) to isolate the patients and pathogen carriers for treatment, and to determine the period of isolation according to the results of medical examination; (2) to treat suspected patients individually in isolation at designated places until a definite diagnosis is made; and (3) to keep the person in close contact with the patients, pathogen carriers, or suspected patients in medical agencies under medical observation at designated places and to take other necessary preventive measures.” Article 41 thereof provides that “With respect to the places where there are cases of infectious diseases under Class A or to the persons in special areas within such places, the local people's governments at or above the county level where the above places are located may carry out isolation measures.... If such persons have their own employers, the employers with which they work, may not stop the payment of their wages during the period of isolation.” In accordance with Article 1 of the Notice by the General Office of the Ministry of Human Resources and Social Security of Properly Handling Labor Relations during the Prevention and Control of the COVID-19 Outbreak (No. 5 [2020] of the Ministry of Human Resources and Social Security) provides that “For employees who are patients or suspected patients infected with COVID-19 or their close contacts during the period of receiving treatment in isolation or the medical observation period and who are unable to normally provide work as a result of the quarantine measures or other emergency measures taken by the government, their employers shall pay remuneration to such employees during the periods.” The Opinions of the Ministry of Human Resources and Social Security, the Supreme People's Court, and Five Other Departments on Issues concerning Properly Handling Labor Relations Involving the COVID-19 Outbreak (No. 17 [2020] of the Ministry of Human Resources and Social Security) provides that “Where an employee does not fall under the circumstances of legal isolation, but he or she falls under the circumstances where the government takes such emergency measures as business suspension and blockade of epidemic area according to the law, the employer delays resumption of work or the employee fails to return to work as a result, the wages shall be paid under specific circumstances.... Third, where the employer has not resumed work or where the employer has resumed work, but the employee does not return to work and fails to normally provide work by other means, the employer shall negotiate with the employee by reference to the relevant provisions issued by the state on the payment of wages during the period of business suspension. If it is within a wage payment cycle, the wage shall be paid according to the standard as set forth in the labor contract; and if it exceeds a wage payment cycle, the employer shall pay the employee living expenses and the standards for living expenses shall be governed by relevant local provisions. The aforesaid clauses show that there are specific provisions on legal isolation circumstances for employees during the COVID-19 outbreak: First, a medical agency may provide confirmed cases of COVID-19, suspected patients, and close contacts with isolation treatment or medical observation. Second, the local people's government at or above the county level may take isolation measures in accordance with the legal provisions. In addition, where an employer pays an employee who fails to normally provide work by exceeding a wage payment cycle the living expenses, it shall conduct negotiation with the employee, but there are no provisions that living expenses may not be paid until they reach a consensus. | | 《中华人民共和国传染病防治法》(以下简称《传染病防治法》)第三十九条规定：“医疗机构发现甲类传染病时，应当及时采取下列措施：(一)对病人、病原携带者，予以隔离治疗，隔离期限根据医学检查结果确定； (二)对疑似病人，确诊前在指定场所单独隔离治疗； (三)对医疗机构内的病人、病原携带者、疑似病人的密切接触者，在指定场所进行医学观察和采取其他必要的预防措施。”第四十一条规定：“对已经发生甲类传染病病例的场所或者该场所内的特定区域的人员，所在地的县级以上地方人民政府可以实施隔离措施……被隔离人员有工作单位的，所在单位不得停止支付其隔离期间的工作报酬。”人力资源社会保障部办公厅《关于妥善处理新型冠状病毒感染的肺炎疫情防控期间劳动关系问题的通知》(人社厅明电[2020]5号)第一条规定：“对新型冠状病毒感染的肺炎患者、疑似病人、密切接触者在其隔离治疗期间或医学观察期间以及因政府实施隔离措施或采取其他紧急措施导致不能提供正常劳动的企业职工，企业应当支付职工在此期间的工作报酬。”人力资源社会保障部、最高人民法院等七部门《关于妥善处置涉疫情劳动关系有关问题的意见》(人社部发[2020]17号)规定：“对不属于被依法隔离情形但属于因政府依法采取停工停业、封锁疫区等紧急措施情形，导致企业延迟复工或劳动者不能返岗的，区分不同情况处理。……三是对企业未复工或者企业复工但劳动者未返岗且不能通过其他方式提供正常劳动的，企业参照国家关于停工停产期间工资支付相关规定与劳动者协商，在一个工资支付周期内的，按照劳动合同规定的标准支付工资；超过一个工资支付周期的，由企业发放生活费，生活费标准按地方有关规定执行。”从上述条款可知，关于新冠肺炎疫情期间劳动者依法隔离的情形有明确规定：一是医疗机构对确诊的新型冠状病毒感染的肺炎患者、疑似病人、密切接触者可予以隔离治疗或医学观察；二是所在地的县级以上地方人民政府，根据法律规定可采取隔离措施。此外，企业对超过一个工资支付周期不能提供正常劳动的职工发放生活费应与劳动者协商，但并未规定必须达成一致方可发放生活费。 |
| In the present case, Zhang was not a person in the three categories of persons subject to isolation treatment or medical observation, nor did the local people's government at or above the county level take isolation measures against personnel living in the residential community of close contacts of confirmed cases of COVID-19. Requiring Zhang to be under medical observation at home was a prevention measure taken by the property management company from the perspective of community management. Therefore, in accordance with the aforesaid provisions, Zhang did not fall under the circumstances where he failed to normally provide work for being under isolation treatment or medical observation or isolation measures taken by the government. At the meantime, before the payment of living expenses to Zhang, the commercial company conducted negotiation with him. For exceeding a wage payment cycle, the commercial company paid Zhang living expenses, which did not violate the relevant provisions. Therefore, the arbitration committee dismissed Zhang's arbitration claim according to the law. | | 本案中，张某不属于需隔离治疗或医学观察的三类人，其所在地区的县级以上地方人民政府亦未对新冠肺炎确诊病例密切接触者所在小区人员采取隔离措施，要求张某居家观察系物业公司从小区管理角度采取的防范措施。故依照上述规定，张某不属于因处于隔离治疗期或医学观察期以及因政府实施隔离措施而不能提供正常劳动的情形。同时，该商业公司在向张某发放生活费之前与其进行了协商，对超过一个工资支付周期的，商业公司支付张某生活费并不违反相关规定，故依法驳回张某的仲裁请求。 |
| Significance | | 典型意义 |
| In accordance with the provisions of the Law on Prevention and Treatment of Infectious Diseases, the National Health Commission has expressly included the COVID-19 in Category B infectious diseases under the said Law and the measures for prevention and control of Category A infectious diseases should be taken. During the epidemic outbreak, such measures taken by the local people's government at or above the county level according to the epidemic prevention and control needs as epidemic area blockade, traffic quarantine, production, operation, and class suspension as well as centralized isolation at designated places for close contacts are all within the legally authorized scope. While claiming their own rights and interests, the employees should strictly differentiate connotations of isolation treatment period, medical observation period, and period of medical observation at home in accordance with the relevant provisions, so as to avoid the occurrence of “abuse of rights.” | | 根据《传染病防治法》规定，国家卫生健康委已明确将此次新冠肺炎纳入该法规定管理的乙类传染病，并采取甲类传染病预防、控制措施。在疫情期间，县级以上地方人民政府根据疫情防控需要作出的疫区封锁、交通检疫、停工停业停课以及密切接触者集中定点隔离等措施，均在法律授权范围内。劳动者在主张自己权益时应严格依照相关规定，严格区分隔离治疗期、医学观察期和居家观察期的不同内涵，避免“权利滥用”问题的发生。 |
| Case No. 3 How to pay the wage of an employee who was stranded in Hubei Province when his employer suspended business during the COVID-19 outbreak | | 案例3．新冠肺炎疫情期间，如何支付因工滞留湖北劳动者在企业停工停产期间的工资待遇 |
| Basic Facts | | 基本案情 |
| Li was an engineer of a software company in a municipality directly under the Central Government. On January 20, 2020, at the customer's demand, the software company dispatched Li to Hubei Province for system maintenance and Li was unable to get back due to the epidemic outbreak. After the spring festival 2020, the software company suspended business for interrupted supply of raw materials and other reasons. The software company alleged that Li did not provide work during the period from March 14 to April 13, 2020. Therefore, it paid him the living expenses in accordance with the relevant provisions on business suspension. Zhang claimed that he was stranded in Hubei Province on business arranged by the software company and he should be paid the wage for normal work. Therefore, he filed an application for arbitration with the Arbitration Committee. | | 李某系某直辖市某软件公司工程师，2020年1月20日因客户需求，软件公司派李某赴湖北进行系统维护，后因疫情原因致其无法返回。2020年春节后，软件公司因原料供应中断等原因停工停产。该公司认为李某2020年3月14日至4月13日期间并未提供劳动，故根据停工停产有关规定向其支付了生活费。李某认为其是因公司安排出差滞留湖北，应按正常劳动支付工资，遂向劳动人事争议仲裁委员会(以下简称仲裁委员会) 申请仲裁。 |
| Claim of Applicant | | 申请人请求 |
| The software company should pay the wage balance during the period from March 14 to April 13, 2020 for normal work. | | 裁决软件公司按正常劳动支付2020年3月14日至4月13日期间工资差额。 |
| Handling Results | | 处理结果 |
| Upon mediation of the Arbitration Committee, the software company paid Li the wage balance during the period from March 14 to April 13, 2020. | | 经仲裁委员会调解，软件公司向李某支付了2020年3月14日至4月13日期间的工资待遇差额。 |
| Case Analysis | | 案例分析 |
| The issue of the case is how to pay wages to Li who was stranded in Hubei Province when the software company suspended business due to the COVID-19 outbreak. | | 本案的争议焦点是软件公司因新冠肺炎疫情停工停产期间，李某因工滞留湖北，其工资待遇如何支付。 |
| The Opinions of the Ministry of Human Resources and Social Security, the Supreme People's Court, and Five Other Departments on Issues concerning Properly Handling Labor Relations Involving the COVID-19 Outbreak (No. 17 [2020], Ministry of Human Resources and Social Security) provides that “Where an employee does not fall under the circumstances of legal isolation, but he or she falls under the circumstances where the government takes such emergency measures as business suspension and blockade of epidemic area according to the law, the employer delays resumption of work or the employee fails to return to work as a result, the wages shall be paid under specific circumstances.... Third, where the employer has not resumed work or where the employer has resumed work, but the employee does not return to work and fails to normally provide work by other means, the employer shall negotiate with the employee by reference to the relevant provisions issued by the state on the payment of wages during the period of business suspension....” In the present case, although Li did not return to work and could not provide normal work by other means, since he was stranded in Hubei Province on business arranged by the employer for completing the work arranged by the employer, he should be deemed to have provided work as normal. Therefore, Li should be paid the wage for providing normal work in the duration exceeding a wage payment cycle. | | 人力资源社会保障部、最高人民法院等七部门《关于妥善处置涉疫情劳动关系有关问题的意见》(人社部发[2020]17号)规定：“对不属于被依法隔离情形但属于因政府依法采取停工停业、封锁疫区等紧急措施情形，导致企业延迟复工或劳动者不能返岗的，区分不同情况处理。……三是对企业未复工或者企业复工但劳动者未返岗且不能通过其他方式提供正常劳动的，企业参照国家关于停工停产期间工资支付相关规定与劳动者协商……”本案中，李某虽未返岗且不能通过其他方式提供正常劳动，但其系因用人单位安排出差而滞留湖北，其滞留行为是为完成用人单位所安排的工作内容导致，应视为提供了正常劳动，故李某在超过一个工资支付周期期间应按正常劳动领取工资。 |
| Significance | | 典型意义 |
| Under the special circumstances of the COVID-19 outbreak, employers should be guided in jointly sharing responsibilities and overcoming challenges with their employees. In the meantime, such characteristics of labor relations as personal subordination and dependence should be taken into consideration. In other words, an employee should provide work on the premise of agreements made by the employer. Where the employee is unable to normally provide work since he or she is stranded for job-related reasons, the “justification” of inability to provide work should be taken into full account and it should be differentiated from the circumstance where the employee fails to provide normal work while he or she is capable of doing so. | | 在新冠肺炎疫情这一特殊情形下，在引导用人单位与劳动者共担责任、共渡难关的同时，还要考虑劳动关系的人身从属性、依附性特点，也即劳动者的劳动以用人单位安排为前提，如因工作原因导致滞留进而无法提供正常劳动的，要充分考虑无法提供劳动的“正当性”，并与劳动者能够提供正常劳动而未提供正常劳动的情形相区分。 |
| Case No. 4 How to comprehend “a wage payment cycle” and correctly pay wages of an employee who fails to return to work on time | | 案例4．如何理解“一个工资支付周期”，正确发放未及时返岗劳动者工资待遇 |
| Basic Facts | | 基本案情 |
| Ding worked with a machinery company. It was stipulated in the labor contract concluded between them that the monthly wage of Ding was CNY6,000 and the machinery company paid the wage from the tenth day of the previous month to the ninth day of the current month on the fifteenth day of each month. Before the spring festival 2020, Ding returned to his hometown in another province for celebration. During the extended spring festival, the people's government at the place where the machinery company is located issued a notice that resumption of work was delayed to February 9. At the end of February, the machinery company resumed business, but Ding failed to return to work or provide telework. The machinery company issued an online notice that positions of employees failing to return to work would be reserved and their wages would be paid by reference to the relevant provisions issued by the state on business suspension. Ding replied that “(The notice has been) received and I appreciate the company's understanding.” The software company paid Ding the wage from January 10 to February 9 as normal. However, on March 15, Ding only received a wage of CNY1,540 for February. The HR manager explained that due to business suspension of the company, the first wage payment cycle has been ended after February 9. In accordance with the relevant provisions of the state and the province, the company paid employees failing to return to work living expenses from February 10. Ding claimed that the labor relations should be rescinded on the ground that the company failed to pay him the wage in full amount in a timely manner and he filed an application for arbitration with the Arbitration Committee. | | 丁某就职于某机械公司，劳动合同约定其月工资为6000元；机械公司于每月15日发放上月10日至本月9日的工资。2020年春节前，丁某返回外省家乡过节。春节延长假期间，机械公司所属地区人民政府发布通知，延迟复工时间至2月9日。2月底，机械公司复工复产，而丁某未能返岗或远程办公。机械公司线上发布通知，告知未返岗职工保留职位，将参照国家有关停工停产规定发放工资。丁某回复：“收到，谢谢公司理解。”机械公司正常发放了丁某1月10日至2月9日工资。但3月15日，丁某仅收到2月工资1540元。人事经理解释，因公司停工，2月9日停工后的第一个工资支付周期已经结束，根据国家及所属省有关规定，自2月10日起对未返岗职工发放生活费。丁某以公司未及时足额支付工资为由提出了解除劳动关系，并向劳动人事争议仲裁委员会(以下简称仲裁委员会)申请仲裁。 |
| Claim of Applicant | | 申请人请求 |
| The machinery company should pay the wage balance of CNY4,460 during the period from February 10 to March 9 and the economic compensation of CNY6,000 for rescission of the labor contract. | | 裁决机械公司支付2月10日至3月9日的工资差额4460元和解除劳动合同的经济补偿6000元。 |
| Handling Results | | 处理结果 |
| Upon mediation, the machinery company paid Ding the wage balance of CNY3,227.8 during the period from February 10 the March 9, 2020 in court. Ding withdrew his application for arbitration. | | 经调解，机械公司当庭支付丁某2020年2月10日至3月9日的工资待遇差额3227．8元。丁某撤回仲裁申请。 |
| Case Analysis | | 案例分析 |
| The issue of the case is how to comprehend “a wage payment cycle.” | | 本案的争议焦点是如何理解“一个工资支付周期”。 |
| Both Article 12 of the Interim Regulation on Payment of Wages (No. 489 [1994], Ministry of Labor) and the Notice by the Ministry of Human Resources and Social Security of Properly Handling Labor Relations during the Prevention and Control of the COVID-19 Outbreak (No. 5 [2020], Ministry of Human Resources and Social Security) involve “a wage payment cycle.” It should be a buffer period in nature mainly for the purpose of reflecting risk sharing and protection of basic rights and interests of employees during the epidemic outbreak. The said period can conform to the connotation of the relevant provisions only if it is comprehended as a length of time. If “exceeding a wage payment cycle” is comprehended as “spanning the deadline of the current payment cycle,” it will easily cause different wage payment responsibilities for employers suspending business at the same time due to different starting time of wage payment cycles. | | 《工资支付暂行规定》(劳部发[1994]489号)第十二条及人力资源社会保障部《关于妥善处理新型冠状病毒感染的肺炎疫情防控期间劳动关系问题的通知》(人社厅明电[2020]5号)均涉及“一个工资支付周期”，该周期的性质应属缓冲期，主要目的是体现风险共担和疫情期间对劳动者基本权益的保护，只有理解为一个时间长度，才符合相关规定的内涵。如果将“超过一个工资支付周期”理解为“跨越当前支付周期截止时间点”，则易引发用人单位停工时间相同，却仅因工资支付周期起算时间不同，而承担不同工资支付责任的问题。 |
| In the present case, the machinery company implemented a system of payment of wages on a monthly basis and the wage payment cycle was a month. The machinery company did not resume work due to the epidemic outbreak and the period of business suspension was calculated from the subsequent day of the end of the extended spring festival 2020, namely, February 3. After the machinery company resumed work at the end of February, Ding failed to return to work. Upon negotiation by both parties, the wage of Ding during the period when he did not return to work should be paid by reference to the standards for business suspension and the wages during the period when he did not return to work and the period of the machinery company's suspension of business should be continuously calculated. Therefore, the period from February 3 to March 2, 2020 was the first wage payment cycle after Ding did not return to work and the period from March 3 to 9, 2020 exceeded a wage payment cycle. Ding's wage during the period from February 10 to March 9 should be calculated in segments. After the amount of wage that has been paid by the machinery company was deducted, the machinery company should pay the wage balance of CNY3,227.8 (CNY6,000 / 21.75 days x 16 days + CNY1,540 / 21.75 days x 5 days - CNY1,540). After both parties were explained the connotation of “a wage payment cycle,” the machinery company paid Ding the wage balance of CNY3,227.8 in court and upon negotiation between both parties, the machinery company consented to Ding's return to work in the company and Ding withdrew his application for arbitration. | | 本案中，机械公司实行按月支付工资的制度，工资支付周期为一个月。机械公司因疫情原因未复工，停工停产期间从2020年春节延长假期结束的次日 (2月3日)起计算，2月底机械公司复工后丁某未返岗，经双方协商，丁某未返岗期间工资待遇参照停工停产标准支付，未返岗期间与机械公司停工期间应连续计算。因此，2020年2月3日至3月2日为丁某未返岗的第一个工资支付周期，2020年3月3日至3月9日则超过一个工资支付周期。故对于丁某2月10日至3月9日期间的工资待遇，应采取分段核算的方法，扣减机械公司已支付金额后，机械公司应支付工资待遇差额3227．8元(6000元÷21. 75天×16天+1540元÷ 21．75天×5天-1540元)。经向双方释明“一个工资支付周期”的内涵，机械公司当庭支付丁某3227．8元工资待遇差额，双方协商同意丁某回公司继续工作，丁某也撤回了仲裁申请。 |
| Significance | | 典型意义 |
| During the COVID-19 outbreak, some enterprises suspended business and employees had difficulties in returning to work in a timely manner. The accurate comprehension and application of “a wage payment cycle” is conducive to the implementation of the standards for payment of wages during the epidemic outbreak and safeguarding the basic rights and interests of employees during the epidemic outbreak, but is conducive to urging employers to assume necessary social responsibilities and realizing risk sharing and overcoming challenges by both parties to labor relations. It should be noted that the relevant departments should always adhere to the flexible dispute resolution idea of giving priority to negotiation and mediation, give full play to such advantages of the aforesaid idea that the parties take the lead, the social costs are low, and the procedural efficiency is high, and strive for optimal social effects and legal effects of dispute resolution. | | 新冠肺炎疫情期间，企业出现停工停产，劳动者也存在不能及时返岗的困难。准确理解和适用“一个工资支付周期”，有利于疫情期间工资待遇支付标准的贯彻执行，在保障劳动者疫情期间基本权益的同时，也有利于促使用人单位承担起必要的社会责任，实现劳动关系双方共担风险、共渡难关。需要注意的是，有关部门应始终坚持协商和调解优先的柔性争议处理思路，发挥其当事人主导、社会成本低、程序效率高的优势，力争争议处理的最佳社会效果和法律效果。 |
| Case No. 5 Whether wage may be paid in accordance with the provisions on business suspension where the business of an employer is partially suspended affected by the epidemic outbreak | | 案例5．受疫情影响，用人单位部分停工停产的，能否按照停工停产规定支付工资待遇 |
| Basic Facts | | 基本案情 |
| Zhang is an employee of the customer club of a motor company and the business of the company covers auto parts production, automobile assembly, and vehicle sales. The labor contract concluded by both parties stipulated that the monthly pay of Zhang was CNY8,000 and the motor company paid the wage from the fourth day of the previous month to the third day of the current month on the tenth day of each month. After February 3, the departments of auto parts production, automobile assembly, and vehicle sales in the motor company successively resumed work. However, according to the requirements for prevention and control of the COVID-19 outbreak, the customer club was temporarily closed, resulting in the customer club's failure to synchronously resume business. A dozen of employees in the customer club including Zhang suspended work. On March 10, the motor company paid Zhang the wage of February according to the stipulations of the labor contract and on April 10, it paid Zhang the wage of March according to the standards for living expenses. Zhang claimed that the motor company maliciously reduced his wage on the ground of business suspension and he thus filed an application for arbitration with the Arbitration Committee. | | 张某为某汽车公司客户俱乐部员工，该公司业务涉及汽车零部件生产、汽车组装和车辆销售等工作。双方签订的劳动合同约定张某月工资为8000元，汽车公司每月10日发放上月4日至本月3日工资。2月3日以后，汽车公司零部件生产、汽车组装、车辆销售部门陆续复工，但因新冠肺炎疫情防控要求客户俱乐部暂时无法对外开放，导致客户俱乐部未能同步复工复产，张某所在客户俱乐部中的10余名劳动者均处于停工状态。3月10日汽车公司按照劳动合同约定支付了张某2月工资，4月10日按照生活费标准支付了张某3月工资待遇。张某认为汽车公司恶意以停工为由降低其工资待遇，遂向劳动人事争议仲裁委员会(以下简称仲裁委员会)申请仲裁。 |
| Claim of Applicant | | 申请人请求 |
| The motor company should pay the wage balance of CNY6,460 for the period from March 4 to April 3. | | 裁决汽车公司支付3月4日至4月3日工资差额6460元。 |
| Handling Results | | 处理结果 |
| The Arbitration Committee entered an arbitral award that Zhang's arbitration claim should be dismissed. | | 仲裁委员会裁决驳回张某的仲裁请求。 |
| Case Analysis | | 案例分析 |
| The issue of the case is whether Zhang can be paid the wage in accordance with the provisions on business suspension where the motor company partially suspended business affected by the epidemic outbreak. | | 本案的争议焦点是受疫情影响，汽车公司部分停工停产，能否按照停工停产规定支付张某工资待遇。 |
| The Notice by the Ministry of Human Resources and Social Security of Properly Handling Labor Relations during the Prevention and Control of the COVID-19 Outbreak (No. 5 [2020], Ministry of Human Resources and Social Security) provides that “Where an employer suspends business in a wage payment cycle, the employer shall pay wages to its employees according to the standards set forth in the labor contract. Where the suspension continues for longer than a wage payment cycle, for those employees who provide work as normal, the wages paid by the employer shall not be less than the standard for local minimum wages. For those employees who are unable to provide work as normal, the employer shall pay for living expenses, and the standards for living expenses shall be governed by the measures of the province, autonomous region or municipality directly under the Central Government.” The aforesaid policy was prepared by reference to Article 12 of the Interim Regulation on Payment of Wages (No. 489 [1994], Ministry of Labor), namely, “where an employer suspends business not for reasons of employees during a wage payment cycle, the employer shall pay wages to its employees according to the standards set forth in the labor contract. Where the suspension continues for longer than a wage payment cycle, for those employees who provide work as normal, the remunerations paid by the employer shall not be less than the standard for local minimum wages; and for those employees who fail to provide work as normal, the relevant provisions of the state shall apply in the handling.” It shows that the aforesaid provisions only separately specify circumstances where an employee can normally provide work or fails to normally provide work during the period of the employer's business suspension, but the application conditions are not limited to complete business suspension of the employer. In the present case, although the department of auto parts production and other departments of the motor company have resumed work, due to relative independence in the work of all departments, the conditions for resumption of work on which such departments depended were different. The claim of Zhang that the motor company maliciously reduced his wage on the ground that the customer club suspended operation lacked factual basis. | | 人力资源社会保障部《关于妥善处理新型冠状病毒感染的肺炎疫情防控期间劳动关系问题的通知》(人社厅明电[2020]5号，以下简称5号文件)规定：“企业停工停产在一个工资支付周期内的，企业应按劳动合同规定的标准支付职工工资。超过一个工资支付周期的，若职工提供了正常劳动，企业支付给职工的工资不得低于当地最低工资标准。职工没有提供正常劳动的，企业应当发放生活费，生活费标准按各省、自治区、直辖市规定的办法执行。”上述政策的制定参照了《工资支付暂行规定》(劳部发[1994]489号)第十二条，即“非因劳动者原因造成单位停工、停产在一个工资支付周期内的，用人单位应按劳动合同规定的标准支付劳动者工资。超过一个工资支付周期的，若劳动者提供了正常劳动，则支付给劳动者的劳动报酬不得低于当地的最低工资标准；若劳动者没有提供正常劳动，应按国家有关规定办理。”可见，上述规定只对用人单位停工停产期间劳动者能够提供正常劳动和无法提供正常劳动分别予以明确，但并未将适用条件限于用人单位的全部停工停产。本案中，尽管汽车公司的零部件制造等部门均已复工，但因各部门工作具有相对独立性，其所依赖的复工条件并不相同，张某认为汽车公司恶意以客户俱乐部停工为由降低其工资待遇，事实依据不足。 |
| It was found upon examination that the arrangements made by the motor company for partial suspension of business were not targeted at Zhang. Instead, they applied indiscriminately to a dozen of employees of the customer club. As a consequence, the Arbitration Committee did not admit Zhang's claim that the motor company had subjective malice in arranging partial suspension of business. It was not inappropriate for the motor company to arrange suspension of business of the department where Zhang worked and pay Zhang the wage in accordance with the provisions of the Document No. 5. Therefore, the Arbitration Committee dismissed Zhang's arbitration claim according to the law. | | 经查，汽车公司部分停工的安排并非针对张某一人，而是无差别地适用于客户俱乐部的10余名劳动者。因此，仲裁委员会对张某关于汽车公司安排部分停工存在主观恶意的主张不予采信，该公司安排张某所在部门停工，并适用5号文件规定支付张某工资待遇，并无不当，故依法驳回张某的仲裁请求。 |
| Significance | | 典型意义 |
| The COVID-19 outbreak has affected the business of employers and normal work of employees. Under the circumstances, compared to the handling method of rescinding labor contracts with employees and paying compensation due to objective conditions, the payment of living expenses by an employer by means of short-term suspension of business not only reduces costs and maintains stability of labor relations, but provides human resources protection for subsequent resumption of work. Therefore, it is a preferred choice; for an employee, although his or her income is reduced within a certain period, the payment of living expenses has relieved pressure on the employer and helped the employer overcome challenges, which stabilizes the employee's employment, and each party has their own benefits. The balance and consideration of interests are inner requirements for building harmonious labor relations under the influence of the epidemic outbreak and also the basis for safeguarding the lawful rights and interests of employees suspending business and respecting and safeguarding the employer's right to hire employees on its own initiative. | | 新冠肺炎疫情影响了用人单位生产经营和劳动者正常劳动。在这种情况下，用人单位通过短期停工停产发放生活费的方式，较因客观情况与劳动者解除劳动合同并支付补偿的处理方式，既降低了成本，维护了劳动关系稳定，也为下一步复工复产提供了人力资源保障，因此，是一种择优选择；而从劳动者角度，虽然一定时期内的收入下降，但减轻了用人单位压力，让其能够渡过难关，稳定了自身的就业岗位，双方各得其利。这种利益的平衡和兼顾，正是疫情影响下构建和谐劳动关系的内在要求，也是仲裁和司法实务中，维护停工停产劳动者合法权益，尊重和保障用人单位用工自主权的依据。 |
| Case No. 6 Whether an employer has the right to unilaterally arrange its employee to take the paid annual leave during the period of delayed work resumption affected by the epidemic outbreak | | 案例6．受疫情影响延迟复工复产期间，用人单位是否有权单方面安排劳动者休带薪年休假 |
| Basic Facts | | 基本案情 |
| Li served as a chef in a catering company with the monthly wage of CNY8,000. From 2019, Li may enjoy a paid annual leave of five days each year and he submitted a written application for taking a cross-year leave to the catering company for approval. On February 3, 2020, the local people's government at the city level required that all enterprises not involved in the prevention and control of the epidemic outbreak should delay work resumption to February 17. The catering company immediately notified Li of the delayed work resumption and required that Li should take the paid annual leave (2019-2020) during the period from February 3 to 14. Li disagreed and the catering company demanded that Li should obey the arrangement and it paid Li the wage for the period from February 3 to 14. After the catering company resumed work on March 9, Li was absent from work for several times and the catering company rescinded the labor contract with him. Li claimed that it was illegal for the catering company to arrange him to take the paid annual leave without his consent, the wage for the said period should be deemed as that for the period of business suspension, and the wage for not taking the paid annual leave (2019-2020) should be paid. The catering company dismissed the claim. Li thus filed an application for arbitration with the Arbitration Committee. | | 李某在某餐饮公司担任厨师，月工资为8000元，2019年开 始李某可以享受每年5天带薪年休假，其书面提出要求跨年休假并征得餐饮公司同意。2020年2月3日，当地市政府要求全市所有非涉及疫情防控企业延迟复工复产至2月17日。餐饮公司即通知李某延迟复工，并要求李某2月3日至14日期间休完 2019、2020年度的带薪年休假。李某表示不同意，餐饮公司要求李某服从安排并支付了李某2月3日至14日期间工资。3月9日，餐饮公司复工复产后，因李某多次旷工，餐饮公司与其解除劳动合同。李某提出餐饮公司未征得本人同意就安排休假不合法，该期间工资应当视为停工停产期间工资，并要求支付2019、2020年度未休年休假工资报酬，餐饮公司拒绝。李某遂向劳动人事争议仲裁委员会(以下简称仲裁委员会)申请仲裁。 |
| Claim of Applicant | | 申请人请求 |
| The catering company should pay the wage of CNY6,620.69 (CNY8,000 / 21.75 days x 6 days x 300%) for not taking the paid annual leave (2019-2020). | | 裁决餐饮公司支付2019、2020年度未休带薪年休假工资 6620．69元(8000元÷21．75天×6天×300％)。 |
| Handling Results | | 处理结果 |
| The Arbitration Committee entered an arbitral award that Li's arbitration claim should be dismissed. | | 仲裁委员会裁决驳回李某的仲裁请求。 |
| Case Analysis | | 案例分析 |
| The issue of the case is whether the catering company arranged Li to take the paid annual leave during the period of delayed work resumption without the consent of Li is legal. | | 本案的争议焦点是餐饮公司未经李某同意安排其在延迟复工复产期间休带薪年休假是否合法。 |
| Paragraph 1 of Article 5 of the Regulation on Paid Annual Leave for Employees provides that “An employer may, in light of the actual production and work situation, plan the annual leave of its employees as a whole on the basis of employees' own wills.” Article 9 of the Implementation Measures for Paid Annual Leave for Employees of Enterprises provides that “An employer may, in light of the actual production and work situation, plan the annual leave of its employees as a whole on the basis of employees' own wills.” The Opinions of the Ministry of Human Resources and Social Security and Three Other Departments on Effectively Stabilizing Labor Relations and Giving Support to Enterprises' Work Resumption during the Period of Prevention and Control of the COVID-19 Outbreak (No. 8 [2020], Ministry of Human Resources and Social Security, hereinafter referred to as the “Document No. 8”) provides that “The employer that does not meet the telework conditions shall, upon consultation with its employees, preferentially use the paid annual leave, the enterprise-established welfare vacations, and other various vacations.” It may be concluded on the basis of the aforesaid provision that an employer has the right to arrange its employees to take the paid annual leave in an overall manner and consultation with its employees is a procedure the employer needs to perform. However, it does not require that “there must be a consensus.” Regardless of whether the employee agrees or not, the employer may arrange the paid annual leave in an overall manner after performing the consultation procedure. | | 《职工带薪年休假条例》第五条第一款规定：“单位根据生产、工作的具体情况，并考虑职工本人意愿，统筹安排职工年休假。”《企业职工带薪年休假实施办法》第九条规定：“用人单位根据生产、工作的具体情况，并考虑职工本人意愿，统筹安排年休假。”人力资源社会保障部等四部门《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》 (人社部发[2020]8号，以下简称8号文件)规定：“对不具备远程办公条件的企业，与职工协商优先使用带薪年休假、企业自设福利假等各类假”。从上述条款可知，用人单位有权统筹安排劳动者带薪年休假，与劳动者协商是用人单位需履行的程序，但并未要求“必须协商一致”。无论劳动者是否同意，企业都可以在履行协商程序后统筹安排带薪年休假。 |
| In the present case, during the period when the government at the city level required delayed work resumption, the catering company arranged Li to take the paid annual leave after it voluntarily communicated with Li, which complied with the legal and policy provisions. Li has legally enjoyed the paid annual leave (2019-2020) during the period from February 3 to 14 and was paid the corresponding wage. Li's claim that the catering company should pay him the wage for not taking the paid annual leave (2019-2020) lacked factual basis. Therefore, the Arbitration Committee dismissed Li's arbitration claim according to the law. | | 本案中，餐饮公司在市政府要求延迟复工复产期间，主动与李某沟通后安排李某休带薪年休假符合法律和政策规定，而且李某2月3日至14日期间已依法享受2019、2020年度带薪年休假并获得相应的工资。李某要求餐饮公司支付2019、2020年度未休带薪年休假工资无事实依据，故依法驳回李某的仲裁请求。 |
| Significance | | 典型意义 |
| The Document No. 8 expressly guides employers and employees in preferentially using various vacations including the paid annual leave and the enterprise-established welfare vacations so that the impacts of the COVID-19 outbreak on the business of employers and income losses of employees are minimized. When arranging an employee to preferentially use the paid annual leave during the period of delayed work resumption, the employer shall take into consideration of the employee's actual situation, legally perform the consultation procedure, and pay the wage while the employee takes the paid annual leave; the employee shall accurately comprehend the legal and policy provisions and actively accept arrangements of the employer. | | 8号文件明确引导企业与劳动者优先使用带薪年休假、企业自设福利假等各类假，把新冠肺炎疫情对企业经营和劳动者收入损失降到最低。安排劳动者在延迟复工复产期间优先使用带薪年休假时，企业应当尽量考虑劳动者实际情况，依法履行协商程序，并依法支付带薪年休假工资；劳动者应当准确理解法律和政策规定，积极接受用人单位安排。 |
| Case No. 7 How to handle “shared employment” where the lending employer fails to continue the performance of the contract | | 案例7．员工借出企业无法继续履行协议，“共享用工”如何处理 |
| Basic Facts | | 基本案情 |
| Zhang was a waiter in a catering company and he has concluded a labor contract with the catering company. During the spring festival 2020, affected by the COVID-19 outbreak, the catering company suspended business and several employees were stranded locally. With the on-going tremendous growth of business volume, an e-commerce company had personnel shortage in such positions of delivery and order picking. Therefore, the e-commerce company and the catering company concluded an “agreement on shared employment.” They agreed that Zhang was lent to the e-commerce company for the period from February 3 to May 4 2020 to work as an order picker. In each month, after the e-commerce company transferred the wage to the catering company, the catering company paid it to Zhang. Zhang agreed to temporarily work with the e-commerce company and he began the work after taking the training held by the company. However, the catering company was declared bankrupt on March 20. It notified Zhang that the labor contract concluded by and between them was terminated and notified the e-commerce company that it was unable to perform the agreement on shared employment. The e-commerce company still arranged Zhang's work and paid the wage. On April 16, Zhang filed an application for arbitration with the Arbitration Committee. | | 张某为某餐饮公司服务员，双方签订有劳动合同。2020年春节期间，因新冠肺炎疫情影响，餐饮公司停止营业，多名员工滞留当地。而某电商公司则业务量持续暴发增长，送货、拣货等岗位人员紧缺。电商公司遂与餐饮公司签订了“共享用工协议”，约定张某自2020年2月3日至5月4日借用到电商公司从事拣货员岗位工作，每月电商公司将工资交由餐饮公司后，由餐饮公司支付张某。张某同意临时到电商公司工作，并经该公司培训后上岗。然而，餐饮公司于3月20日依法宣告破产，并通知张某双方劳动合同终止，同时告知电商公司将无法履行共享用工协议。电商公司仍安排张某工作并支付工资。4月16日，张某向劳动人事争议仲裁委员会(以下简称仲裁委员会)申请仲裁。 |
| Claim of Applicant | | 申请人请求 |
| It should be confirmed that there was labor relations between Li and the e-commerce company during the period from February 3 to April 16, 2020. | | 裁决确认与电商公司自2020年2月3日至4月16日存在劳动关系。 |
| Handling Results | | 处理结果 |
| Upon pretrial mediation of the Arbitration Committee, the e-commerce company recognized the labor relations with Zhang from March 20, 2020, both parties concluded a labor contract with the term from March 20, 2020 to March 19, 2021, and Zhang withdrew his application for arbitration. | | 经仲裁委员会庭前调解，电商公司认可与张某自2020年3月20日起存在劳动关系，双方签订了2020年3月20日至2021年3月19日的劳动合同，张某撤回了仲裁申请。 |
| Case Analysis | | 案例分析 |
| The issue of the case is whether both parties have established labor relations where the lending employer failed to continue to perform the agreement on shared employment and the borrowing employer continued to use the work force. | | 本案的争议焦点是员工借出企业无法继续履行共享用工协议，借入企业继续用工的，双方是否建立劳动关系。 |
“Shared employment” means that an employer with surplus employees temporarily transfers an employee that has established labor relations with it to an employer that lack of labor, the labor relations between the employee and the lending employer is not changed, and the borrowing employer and the lending employer signs an agreement to specify the rights and obligations of both parties. Article 7 of the Opinions on Several Issues concerning the Implementation of the Labor Law of the People's Republic of China (No. 309 [1995], Ministry of Labor) provides that “An employer shall conclude a labor contract with personnel that have been borrowed by other employers for a long term, paid personnel that are attending school as well as other extra personnel who still have labor relations with it. However, during the borrowing period or school time, some relevant clauses of the labor contract may be modified upon consultation by both parties.” Therefore, the lending and borrowing of employees among employers are not prohibited in the Labor Law of China.
．．．．．． | | “共享用工”是指员工富余企业将与之建立劳动关系的员工借调至缺工企业工作，员工与借出企业的劳动关系不发生改变，借入企业与借出企业签订协议明确双方权利义务关系。《关于贯彻执行<中华人民共和国劳动法>若干问题的意见》(劳部发[1995]309号)第7条规定：“用人单位应与其长期被外单位借用的人员、带薪上学人员以及其他非在岗但仍保持劳动关系的人员签订劳动合同，但在外借和上学期间，劳动合同中的某些相关条款经双方协商可以变更。”因此，我国劳动法并不禁止用人单位之间对劳动者的借用。
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