Nutshell
Qu entered into a technology company on April, 2015 as a developer. As a starter company, the human resource management in this company is not standard, as a result of which that Qu never signed a written contract since employment. The company finally found this after a year later when they hire professional personnel. The company asked to sign the contract beginning from April, 2015,on April, 2016 as dated.
After some consultancy, Qu thinks the company supposed to sign the contract within one month after employment. In spite the retroactive one, the company still shall pay double wage during May, 2015 to April, 2016.
Issue
Shall the company pay double wage where retroactive contract is signed?
The company thinks that though there is no written contract since Qu’s employment, it did not affect the labor right and duty between the two parties. Afterwards, the company signed the retroactive contract which Qu did not raise any objection, meaning that Qu affirm the retroactive effect of the contract.
Qu thinks that the company shall sign the contract within one month, but the company signed after one year, leading the labor relation unstable. To keep the job, Qu has to sign the retroactive contract, which does not mean he give up the right to double wage.
Judgment
The arbitration holds that the company did not provide any evidence on the justifiable reason not to sign contract within the regulated time. The retroactive contract cannot make up the fact, therefore double wage is granted.
Comment by Lawyer Tang
This case is on the effect of retroactive company.
Before the Labor Law enacted in 2008, the written contract rate had been low, leading the employee in trouble when disputes were raised. To solve the dilemma, the Labor Contract provides regulation on double wage to raise the contract rate. After 10-year practice, great improvement has been made. The general sense rises on one hand, and double wage penalty works on the other hand. Article 82 provides that if an Employer concludes a written employment contract with an Employee more than one month but less than one year after the date on which it started using him, it shall each month pay to the Employee twice his wage. The risk of double wage rises once the grace period expires.
We shall notice the situation in practice where the employee refuses to sign the contract, shall the company pay double wage? Article 5 provides that within one month after employment, if the employee turns down to sign the contract after written notice, the company can terminate the labor relation by written notice without severance, but the salary shall be paid according to the actual work time. Article 6 provides that uf an Employer concludes a written employment contract with a Employee more than one month but less than one year after the date on which it started using him, it shall each month pay to the Employee twice his wage according to the Art 82 of the Labor Contract Law. If the employee turns down to sign the contract after written notice, the company can terminate the labor relation by written notice with severance. The double wage shall be calculated from one month after employment to the one day before the contract is signed.
We wish to remind the employers to sign the contract on time to avoid the risk of double wage.
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