Article 82 of the Labor Contract Law stipulates: "If an employer fails to conclude a written labor contract with an employee within 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 this law by not signing a labor contract without a fixed term with an employee, it shall pay the employee twice the monthly wage from the date when a labor contract without a fixed term should have been concluded." This provision is conducive to ensuring the written signing of labor contracts, promoting the healthy development of labor relations, and also providing a certain degree of protection for employees.
When an employer fails to sign a written labor contract with an employee, how should the employee apply the Labor Contract Law and relevant laws and regulations to safeguard their labor rights and interests? Does the employer need to bear corresponding legal consequences in the absence of a written labor contract? And how can the employer avoid this risk?
1. Conclusion
According to Article 7 of the Labor Contract Law, "An employer establishes a labor relationship with an employee from the date of commencement of employment." Does the actual commencement of employment serve as the criterion for determining the existence of a labor relationship.
2. According to Article 82 of the Labor Contract Law, "If an employer fails to conclude a written labor contract with a worker within one month but less than one year from the date of employment, it shall pay the worker twice the monthly wage." Under the circumstance where the employer fails to conclude a written labor contract with the worker, the worker may request the employer to pay twice the monthly wage. Furthermore, according to Article 14 of the Labor Contract Law, "If an employer fails to conclude a written labor contract with a worker within one year from the date of employment, it shall be deemed that a labor contract without a fixed term has been concluded between the employer and the worker." Under the circumstance where a written labor contract has not been concluded, if the employer still fails to sign a written labor contract with the worker after one year of work, it shall be deemed that a labor contract without a fixed term has been concluded between both parties. Based on this threshold, after working for one year without a written labor contract, the worker may request the employer to pay the difference of 11 months' worth of twice the monthly wage.
Case Analysis
In the case (2024) Yue 01 Min Zhong 30155 (hereinafter referred to as "Case No. 30155") adjudicated by the Guangzhou Intermediate People's Court (hereinafter referred to as "Guangzhou Intermediate Court"), the Guangzhou Intermediate Court determined that the company was the responsible party for the failure to sign a written labor contract. Based on this, the court ordered the company to pay the employee the difference in wages at double the amount for not signing a written labor contract. The main reasons are as follows:
1. The existing evidence is insufficient to prove that the company has repeatedly requested to sign labor contracts with employees in internal meetings and WeChat chat records;
2. Although the company had sent the electronic version of the labor contract to the employee, the electronic version of the labor contract was a blank format contract. The contents closely related to the employee, such as the contract term, job content and scope, working hours, and labor compensation, were not filled in. There was no company signature or seal at the signature section, which was insufficient to prove the company's claim that the employee had independently filled in the contract content or that the company had issued an offer to the employee to sign the labor contract;
3. The employee did not sign the blank contract to protect their own rights and interests, and there is no fault on their part.
Cited laws and regulations
Article 7 of the Labor Contract Law: An employer establishes an employment relationship with a worker from the date of commencement of employment. The employer shall establish a register of employees for future reference.
Article 14 of the "Labor Contract Law": An open-ended labor contract refers to a labor contract in which the employer and the employee agree on no fixed termination time. An open-ended labor contract may be concluded between the employer and the employee upon mutual agreement. In any of the following circumstances, if the employee proposes or agrees to renew or conclude a labor contract, a non-fixed-term labor contract shall be concluded, unless the employee proposes to conclude a fixed-term labor contract:
(1) The employee has worked continuously for the employer for ten years or more;
(2) When an employer implements the labor contract system for the first time or re-establishes a labor contract due to the restructuring of a state-owned enterprise, and the employee has worked continuously for the employer for ten years and is less than ten years away from the statutory retirement age;
(3) Where a fixed-term labor contract is consecutively renewed twice, and the employee does not fall under the circumstances specified in Article 39 and Article 40, Items 1 and 2, of this Law, and the labor contract is renewed.
If an employer fails to conclude a written labor contract with an employee within one year from the date of employment, it shall be deemed that the employer and the employee have concluded a labor contract without a fixed term.
Article 17 of the Labor Contract Law: A labor contract shall contain the following clauses:
(1) The name, domicile, and legal representative or principal of the employer;
(2) The name, address, and resident identity card number or other valid identity document number of the employee;
(III) Term of the labor contract;
(4) Job content and work location;
(5) Working hours, rest, and vacation;
(6) Labor remuneration;
(VII) Social insurance;
(8) Labor protection, working conditions, and protection against occupational hazards;
(IX) Other matters that shall be included in the labor contract as stipulated by laws and regulations.
In addition to the mandatory clauses specified in the preceding paragraph, the employer and the employee may agree on other matters such as probation period, training, confidentiality, supplementary insurance, and welfare benefits in the labor contract.
Article 82 of the Labor Contract Law: If an employer fails to conclude a written labor contract with an employee within 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 this law by not entering into a non-fixed term labor contract with an employee, it shall pay the employee twice the monthly wage from the date when the non-fixed term labor contract should have been entered into.
