Reasons for the judgment of the Huiyang Court on (2021) Yue 1303 Min Chu No. 4181: Regarding the plaintiff.
In the second, third and fourth cases, the plaintiff agreed that the daily wage was 150 yuan a day, and the plaintiff's claim for overtime pay for extended working hours on working days and overtime pay on rest days had no legal basis, and this court did not support it.
Qiu Wenfeng, a labor dispute lawyer at Guangdong Jinzhuo (Huiyang) Law Firm in Huiyang District, Huizhou City, believes that according to the provisions of the labor law, the agreed daily wage system is a special wage payment method, which is suitable for some specific industries or special jobs. Under the agreed daily wage system, the employer and the employee can agree to pay wages in the form of daily wages without calculating overtime pay. However, such an agreement must comply with the conditions prescribed by law, including that the wage level cannot be lower than the minimum wage and that the working hours cannot exceed the legal working hours.
The civil judgment of the first instance of the labor dispute in Huiyang District.
2021) Yue 1303 Min Chu No. 4181.
Plaintiff: Cai Xqin, female, Han nationality, born on March 1, 1971, address: Huangmei County, Hubei Province.
Entrusted litigator: Li xx, a legal worker of the Central Legal Service Office of Huiyang District, Huizhou City.
Defendant: Zhongshan City XX Food *** Address: Xicheng, West District, Xiaolan Town, Zhongshan City, Unified Social Credit**: 914x77xx.
Legal representative: Liang xx.
In the case of the plaintiff Cai Xqin v. the defendant Zhongshan XX Food *** labor dispute dispute, after the case was filed and accepted by this court, the judge Zhang Xiangping applied the summary procedure and conducted a public trial on July 26, 2021, the plaintiff and his entrusted litigant Li Zhenliang appeared in court to participate in the lawsuit, and the defendant did not appear in court to participate in the lawsuit after being summoned by this court. The case is now closed.
The plaintiff filed the following claims with this court: 1. Order the defendant to pay the plaintiff the difference in wages from January 10, 2021 to February 26, 2021: 490 yuan. 2. The defendant is ordered to pay the plaintiff 675 yuan for the extended working hours of the working day from January 10, 2021 to February 26, 2021 (see the list of overtime wages for details). 3. The defendant is ordered to pay the plaintiff 2,400 yuan for the period from January 10, 2021 to February 26, 2021 (see the list of overtime wages for details). 4. The defendant is ordered to pay the plaintiff 600 yuan in wages and remuneration for statutory holidays from January 10, 2021 to February 26, 2021 (see the list of overtime wages for details). 5. The defendant is ordered to pay the plaintiff a subsidized salary of 2,050 yuan (50 yuan for 41 days) from January 10, 2021 to February 20, 2021. 6. The defendant shall bear the litigation costs of this case. The above total: 6215 yuan. Facts and Reasons: The plaintiff joined the defendant on January 10, 2021, and was stationed at RT-Mart Supermarket on Kaicheng Avenue in Huiyang District as a salesperson, and signed a labor contract at the time of employment, with a contract period from January 10, 2021 to February 20, 2021, but did not participate in national social insurance for the plaintiff, and agreed that the daily wage for normal work was 150 yuan a day, and the direct shift was 170 yuan a day. After the plaintiff joined the company, he worked at least nine hours a day, and the plaintiff was conscientious and responsible for his work during his employment, and was able to complete the work tasks of the defendant on time. After the expiration of the contract, the plaintiff continued to work until February 26, 2021 at the request of the defendant, and the next day, the plaintiff left the company, and on March 27, 2021, the defendant paid the plaintiff a salary of 9,590 yuan from January 10, 2021 to February 26, 2021 through bank transfer. After working at the defendant, the plaintiff never took a holiday, nor did he give the corresponding overtime wages and subsidies, and the plaintiff repeatedly demanded payment of the wage difference and overtime wages from the defendant, but the defendant shirked it on various grounds. In desperation, the plaintiff complained to the Huiyang District Labor Bureau, but the defendant still ignored it and did not give the plaintiff any reply. On April 27, 2021, the plaintiff filed an arbitration with the Huiyang District Labor Dispute Arbitration Commission of Huizhou City (hereinafter referred to as the Huiyang Arbitration Commission), and on May 7, 2021, the Huiyang Arbitration Commission issued a notice of inadmissibility on the grounds that the plaintiff had reached the statutory retirement age [Case No.: Huiyang Lao Ren Zhong Case No. 2021 No. 68], and served the notice of inadmissibility on the plaintiff on the same day. In order to protect the legitimate rights and interests of the plaintiff, the plaintiff filed a lawsuit and implored the court to make a judgment in accordance with the law.
The plaintiff provided the following evidence to this court for his claim:
1. Plaintiff's ID card; 2. Enterprise machine-readable materials; 3. Labor contract; 4. WeChat screenshot; 5. Punch-in record; 6. Notice of inadmissibility and proof of service of notice of inadmissibility.
The defendant submitted a written reply to defend that: 1. Regarding the facts alleged by the plaintiff, there are the following opinions: 1. The facts of the signing of the "Labor Contract" between the defendant and the plaintiff, the position and the labor remuneration standard are determined, but the agreed normal shift working time is 8 hours, that is, from 15 o'clock to 22:30 (week).
6. Sundays and holidays until 11:00 p.m.) 7 hours or 7 hours 30 minutes (30 minutes with dinner time in between), and the working hours of the drop-off shift are from 11 a.m. to 10:30 p.m. (week.
6. Sundays and holidays until 11 p.m.) for a total of 10 hours and 30 minutes or 11 hours (with lunch and dinner in the middle, 30 minutes each), of which the 10 days before the Spring Festival are direct shifts, and the rest of the time is normal shifts and the plaintiff is not arranged to work overtime. 2. The plaintiff's job position is a product mall clerk, and the work is carried out according to the business hours of the mall, and the Kaesong Avenue shopping mall where the plaintiff is located is open from 8 a.m. to 22:30 p.m. (week.
6. Sundays and holidays until 11 p.m.), the defendant did not and could not require the plaintiff to work until late at night, and the attendance records provided by the plaintiff showed that he often clocked out at 12 o'clock or even 1 o'clock in the evening, which was not at all in line with common sense; Moreover, the attendance system was obviously owned by the shopping mall, not the defendant, and even if the clock-out records were true, it could only prove the plaintiff's work attendance in the shopping mall, and could not prove that the plaintiff still worked for the defendant after the shopping mall ceased business. Therefore, the alleged working hours of the defendant and the plaintiff were not confirmed. 2. The defendant and the plaintiff have the following opinions on the claims: 1. The first claim confirms that the outstanding payment of 480 yuan has not been paid. 2. The second claim has no factual basis and should be dismissed, and the defendant has not arranged for the plaintiff to work overtime, and the overtime situation claimed by the plaintiff is not recognized. 3. The third claim has no factual and legal basis and should be dismissed, the wage agreed between the defendant and the plaintiff is a daily wage instead of a fixed monthly wage, and the labor remuneration is calculated according to the number of days the plaintiff actually works, so there is no issue of double wages being calculated on rest days. 4. The fourth claim should be repaid 600 yuan for confirmation. 5. The fifth claim has no factual and legal basis and should be dismissed, and there is no agreement between the two parties on subsidizing wages of 50 yuan a day.
In his defense, the defendant provided the following evidence to this court:
1. Bank remittance voucher; II. **
This court accepts the above-mentioned evidence that there is no objection to. For objectionable evidence, this court will make a comprehensive determination based on the above-mentioned confirmed evidence, combined with the original defendant's cross-examination opinions, trial records, and so forth, and will use the accepted evidence as the basis for determining the facts in this case.
After the trial, it was ascertained that the plaintiff joined the defendant on January 10, 2021 and was assigned to work as a salesperson in RT-Mart Supermarket, Kaicheng Avenue, Tamsui, Huiyang District, and the original defendant had signed a written labor contract on January 10, 2021 for the period from January 10, 2021 to February 20, 2021, which stipulated that the defendant would pay the plaintiff RMB 150 a day on the 30th of each month and agreed to give the plaintiff a share of 1 commission as a bonus according to the amount of the supply price of conventional products. Article 10 of the supplementary provisions is as follows: 1. The time for all branch shopping guides to work is from February 1, 2021 to February 10, 2021 (the daily wage including overtime pay is 170 yuan). 2. Shopping guide commission: According to the amount of the supply price of conventional products, the plaintiff and the store belong to the company's shopping guide to share 1 commission as a bonus. On-site managers, section chiefs and external headquarters are not included in the commission. 3. The unfinished matters shall be implemented in accordance with the company's "Regulations and Systems for the Management of Store Shopping Guides". The defendant worked until February 26, 2021 and then resigned, and the defendant paid the plaintiff a salary of 9,590 yuan from January 10, 2021 to February 26, 2021. Notice No. 68 of the Notice of Inadmissibility was dismissed on the grounds that the plaintiff had reached the statutory retirement age and the dispute between the plaintiff and the employer did not fall within the scope of adjustment of the Labor Law of the People's Republic of China and the Labor Contract Law of the People's Republic of China.
It was also ascertained that according to the chat records submitted by the plaintiff with "Jiawei Food Xiaolin", "38 days of normal shifts 150 days of direct shift 10 days of direct shift 170 junior high school and second duplex 300 commission 2380", "10086-9600 = 480".
This court held that with regard to the plaintiff's first claim for the defendant to pay the difference in wages from January 10, 2021 to February 26, 2021, according to the chat records submitted by the plaintiff, there was a difference, and the defendant's defense also stated that it was confirmed that the wages owed were 480 yuan, and since the plaintiff's actual wages received were 9,590 yuan, the defendant should pay the plaintiff 490 yuan for the difference in wages from January 10, 2021 to February 26, 2021.
Regarding the plaintiff No.
In the case of the wage of the first shift in the second and fourth lawsuits, the plaintiff agreed that the daily wage was 150 yuan a day, and therefore the plaintiff's claim for overtime pay for extended working hours and overtime pay on rest days had no legal basis, and this court did not support it, in view of the defendant's confirmation in the reply that the plaintiff should pay the plaintiff 600 yuan in statutory holiday wages, the defendant should pay the plaintiff 600 yuan in the difference in statutory holiday wages.
With regard to the plaintiff's claim for a subsidy of 50 yuan per day in item 5, the plaintiff and the defendant did not stipulate in the labor contract, and the plaintiff did not submit other evidence to prove that the parties had such an agreement, so the plaintiff's claim for a subsidy of 50 yuan per day has no factual or legal basis, and this court does not support it and should be dismissed. Where the defendant refuses to appear in court without a legitimate reason after being summoned by this court, it is deemed to have voluntarily waived the right to defend and is to be punished as absentia.
In summary, in accordance with Article 10 of the Regulations of Guangdong Province on the Payment of Wages and Articles 64, 142 and 144 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
1. Within seven days of the effective date of this judgment, the defendant Zhongshan XX Food *** shall pay the plaintiff Cai Xqin the difference in wages of 490 yuan and the difference in wages on statutory holidays of 600 yuan from January 10, 2021 to February 26, 2021.
2. Plaintiff Cai Xqin's other litigation claims are rejected.
If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt for the period of delayed performance shall be doubled in accordance with the provisions of article 253 of the Civil Procedure Law of the People's Republic of China.
This case is a labor dispute and the case acceptance fee is waived.
If you are not satisfied with this judgment, you may submit an appeal petition to this court within 15 days from the date of service of the judgment, and submit copies according to the number of opposing parties, and appeal to the Huizhou Intermediate People's Court.
Judge Zhang xx
27 August 21.
Clerk: Lai xx