In practice, some employees only fill out the Application Form but do not sign a written employment contract, so when the employee leaves the company, he claims double the salary of the employee who did not sign a written employment contract, but the enterprise argues that it can be regarded as signing a written employment contract with the above-mentioned documents. In this case, can the Employment Registration Form be regarded as the signing of an employment contract, and can the employee claim double wages? The author summarizes and analyzes the above issues through relevant cases.
"Gazette of the Supreme People's Court" No. 12, 2013 - Beijing Pan Pacific Logistics v. Shan Jingjing Labor Dispute DisputeCourt Hearing:This court is of the opinion ......First of all, Article 82 of the Labor Contract Law adds a penalty of double wages in view of the low rate of signing labor contracts in practice and the fact that Article 16 of the Labor Law only stipulates that "a labor contract shall be concluded for the establishment of an employment relationship" without stipulating the consequences of violating the law. The purpose of the legislation is to increase the rate of signing written labor contracts and clarify the rights and obligations in the labor relationship, rather than the additional benefits that employees can seek from them in excess of their labor remuneration. Secondly, combined with the analysis of the "Employee Recruitment Approval Form" held by Monocrystal, the form has basically realized the function of a written labor contract. The table clearly stipulates the work department, work location, employment period, probation period, salary and treatment of single crystal crystal, and is signed by Su Shuping, the legal representative of Pan Pacific Logistics Company, and the content of the approval form has the requirements of the labor contract, which can not only clarify the labor relationship between the two parties but also fix the rights and obligations of both parties, and realize the function of a written labor contract.
(2020) Jing 01 Min Zhong No. 2729Court hearing: This court held that ......With regard to the section on the difference between two times the salary without signing a written labor contract, Hengye Dingtai Company asserted that the "New Employee Entry Registration Form" signed by both parties had the core contents of the labor contract such as working period, wage standard and work content, but according to the ascertained facts, the registration form did not show that the two parties had agreed on the work content, wage standard, work location, working hours, rest time, labor protection, working conditions and other matters, and did not have the necessary terms of the labor contract, and the above claims of Hengye Dingtai Company were inconsistent with the facts. This court does not accept this. The signing of the New Employee Registration Form by both parties cannot be regarded as the signing of a written employment contract between the two parties.
SummaryUnder normal circumstances, the Employment Registration Form is only a document filled in by the employee to complete the employment registration procedures when he or she joins the company, and should not be regarded as an employment contract. However, if the Entry Registration Form contains the necessary clauses that should be present in the employment contract, such as the work content, salary, working period, and work location, and the basic rights and obligations between the two parties can be determined according to the content, such an employment form has the nature of an employment contract and can be recognized as a written employment contract. In summaryThe law stipulates that a written labor contract shall be signed to establish an employment relationship to better protect the legitimate rights and interests of the parties, but there are no specific mandatory provisions on the written form of the labor contract, so it is not prohibited by law to stipulate the rights and obligations of both parties to the labor relationship in the form of a document in the form of a non-labor contract, and the document can also be regarded as a written labor contract. In addition, in judicial practice, to determine whether a written document signed between an employer and an employee is an employment contract, it is mainly necessary to examine whether the content of the written document has the basic content of an employment contract as stipulated in the Labor Contract Law of the People's Republic of China, and in particular, whether it has content closely related to the basic labor rights of the employee, such as the content of the employee's work, labor remuneration, social insurance, and working conditions.
Related Recommendations:The labor contract is one of the most important bases for the employer and the employee to establish an employment relationship and stipulate the rights and obligations of both parties, even if the law does not clearly stipulate the specific form of the labor contract, as a company, it should try to establish a labor relationship with the employee by signing a written labor contract. Workplace and labor remuneration, etc., otherwise there is a legal risk of not being recognized.
Relevant legal provisions: 1. Article 10 of the Labor Contract Law of the People's Republic of China A written labor contract shall be concluded to establish a labor relationship.
2. Article 17 of the Labor Contract Law of the People's Republic of China The labor contract shall have the following clauses:
1) The name, address, and legal representative or principal responsible person of the employer; (2) The worker's name, address, and resident ID card or other valid identification number;
3) The term of the labor contract;
4) The content of the work and the place of work;
5) Working hours, rest and vacation;
6) Labor remuneration;
7) Social insurance;
8) Labor protection, working conditions and protection against occupational hazards;
9) Other matters that shall be included in the labor contract as stipulated by laws and regulations.
In addition to the necessary clauses stipulated in the preceding paragraph, the employer and the employee may agree on other matters such as probationary period, training, confidentiality, supplementary insurance and welfare benefits.
3. Article 82 of the Labor Contract Law of the People's Republic of China If an employer fails to conclude a written labor contract with an employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly wage.
If an employer violates the provisions of this Law by failing to conclude an indefinite-term labor contract with an employee, it shall pay the employee twice the monthly salary from the date on which the indefinite-term labor contract should have been concluded.