On the distribution of the burden of proof of overtime pay in labor arbitration
Wang MENGNAN 2020-11-25 04:18:08
In labor disputes , The settlement of overtime payment disputes is a hot issue , It is also a difficult problem . Workers claim the existence of overtime, and then ask the employer to pay the unpaid or underpaid overtime pay , But employers deny the existence of overtime and refuse to pay overtime .

The key to this kind of dispute is how to allocate the burden of proof for overtime pay .


 The distribution of burden of proof about overtime pay in labor arbitration


Supreme people's court 《 Interpretation of several issues concerning the application of law in the trial of labor dispute cases ( 3、 ... and ))( Hereinafter referred to as 《 Interpretation 3 》) Article 9 provides that , Workers who claim overtime pay should bear the burden of proof for the existence of overtime . But the laborer has the evidence to prove that the employer has mastered the overtime fact, and the employer does not provide the evidence , The employer shall bear the adverse consequences .

This regulation will undoubtedly play a role of unifying judgment and guiding trial for the court to solve the dispute of overtime pay .

I combine practice to talk about a few shallow views . The main source of overtime pay is overtime pay stipulated by law 、 Overtime pay on public holidays and statutory holidays . Both laws and regulations stipulate that , that , According to this provision, the claimant should bear the burden of proof for the fact that the employer violates the provisions of laws and regulations . In the general sense of fair distribution , The laborer needs to have the corresponding basis to support his claim , At least there needs to be prima facie evidence of the existence of the class ; Employer's denial or refusal to pay overtime pay must be supported by conclusive evidence .

I think ,《 Interpretation 3 》 Article 9 is in line with game theory , It is also in line with the principle of protecting the interests of vulnerable groups of workers , More in line with the particularity of labor disputes .

《 Interpretation 3 》 Emphasize the burden of proof for workers to claim overtime pay , Both 《 Civil procedure law 》 and 《 Labor dispute mediation and arbitration law 》(《 Labor dispute mediation and arbitration law 》 Article 6 stipulates that labor disputes shall be applied ” Who advocates 、 Who adduces evidence ” Principles , There is no exception to the spirit of legislation in the case of claiming overtime pay , It is also in line with the actual basic national conditions .

in fact , There are many effective means and ways for workers to collect evidence of overtime .

《 Civil procedure law 》 Article 63 stipulates that the evidence includes documentary evidence and material evidence 、 Audio visual materials 、 Witness testimony 、 The statement of the parties , Seven kinds of legal evidence, such as the record of expert conclusion investigation . In the past practice , There are few cases in which workers cannot provide evidence of overtime , In general , Workers can provide one or two forms of overtime evidence . such as , Witness testimony 、 Audio visual materials 、 Employer's request for overtime notice or copies of attendance records, etc .

I think , For workers “ evidence ”, We should be lenient with , In addition to a modest examination of the evidence of workers , It is also necessary to make a comprehensive judgment on the evidence of the fact that workers claim to work overtime in combination with common sense and experience , However, it is not easy to reject the claim that the employer should provide evidence on the basis of insufficient evidence . therefore , Evidence of the fact that workers work overtime , We can't be too demanding , As long as the basic or preliminary evidence provided by the laborer can prove the existence of overtime , It can be regarded as the completion of the burden of proof .

Again , The evidence of the fact that the laborer claims to work overtime is controlled by the employer , Although the laborer bears the burden of proof for this claim , But when the evidence presented by workers does not conflict with basic life knowledge or experience , We should consider that the evidence that has proved the fact of overtime belongs to the management of the employer , The employer should provide ; The employer does not provide , We should bear the adverse consequences . But there is no evidence for the claims of workers 、 The demands of the laborer are obviously out of the ordinary sense 、 According to the rules and regulations of the employer and the production and operation situation, there is no need to work overtime , We can not proceed from the principle of preferential protection of workers , Force the employer to pay the unreasonable expenses of the laborer .
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