Labor Law I Lecture Notes

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BUSL388CHINA TRADE & INVESTMENT LAWWEEK 8: LABOUR LAW I

Dr Kay-Wah ChanDepartment of Accounting & Corporate Governance

Macquarie University

Australia

(2015)

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Relevant laws, regulations, rules etc.• Labour Law of the People’s Republic of China (中华人民共和国劳动法中华人民共和国劳动法中华人民共和国劳动法中华人民共和国劳动法) adopted at the 8th

Meeting of the Standing Committee of the 8th NPC and promulgated on 5 July 1994 (effective from 1

January 1995; amended in 2009) (Labour Law / LL)

• Labour Contract Law of the People’s Republic of China (中华人民共和国劳动合同法中华人民共和国劳动合同法中华人民共和国劳动合同法中华人民共和国劳动合同法)adopted at the 28th Session of the Standing Committee of the 10th NPC and promulgated on 29 June

2007 (effective from 1 January 2008) and amended in December 2012 (effective from 1 July 2013)

(Labour Contract Law / LCL)

• The Implementing Regulations of the Labour Contract Law of the People’s Republic of

China (or translated as the Regulations on Implementation of the Labor Contract Law of the

People's Republic of China) (中华人民共和国劳动合同法实施条例中华人民共和国劳动合同法实施条例中华人民共和国劳动合同法实施条例中华人民共和国劳动合同法实施条例) promulgated on 18 September

2008 (effective from 18 September 2008) (LCL Implementing Regulations)

• Employment Promotion Law of the People’s Republic of China (or translated as the Law

of the People's Republic of China on Employment Promotion) (中华人民共和国就业促进法中华人民共和国就业促进法中华人民共和国就业促进法中华人民共和国就业促进法)adopted at the 29th Session of the Standing Committee of the 10th NPC and promulgated on 30 August

2007 (effective from 1 January 2008) and amended in April 2015 (Employment Promotion Law)

• Provisions on Employment Services and Employment Management (or translated as the

Regulations on Employment Service and Employment Administration) (就业服务与就业管理规定就业服务与就业管理规定就业服务与就业管理规定就业服务与就业管理规定)promulgated on 5 November 2007 (effective from 1 January 2008) and amended in December 2014 and

April 2015 (Employment Management Provisions)

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• Provisions on the Prohibition of Using Child Labour (or translated as the

Provisions on Prohibition of Child Labour)((((禁止使用童工规定禁止使用童工规定禁止使用童工规定禁止使用童工规定)))) promulgated by the

State Council Decree Order 364 on 1 October 2002 (effective from 1 December 2002)

• Special Provisions on Labour Protection of Female Workers (女职工劳动女职工劳动女职工劳动女职工劳动保护特别规定保护特别规定保护特别规定保护特别规定) promulgated by the State Council on 28 April 2012 (effective from 28 April 2012)

• Provisions on the Administration of Employment of Foreigners in China (外国人在中国就业管理规定外国人在中国就业管理规定外国人在中国就业管理规定外国人在中国就业管理规定) issued jointly by the Ministry of Labour, Ministry of Public Security, Ministry of Foreign Affairs and the Ministry of Foreign Trade and Economic Cooperation on 22 January 1996 (effective from 1 May 1996) and amended in November 2010.

• Provisions on the Administration of Employment of Taiwan, Hong Kong

and Macao Residents in the Mainland (or translated as the Administrative

Regulations on the Employment of Taiwan, Hong Kong and Macau Residents in

Mainland) (台湾香港澳门居民在内地就业管理规定台湾香港澳门居民在内地就业管理规定台湾香港澳门居民在内地就业管理规定台湾香港澳门居民在内地就业管理规定) issued by MOLSS on 14 June 2005

(effective from 1 October 2005)

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• Measures for Economic Compensations for Breach and Revocation of Labour Contracts ((((违反和解除劳动合同的经济补偿办法违反和解除劳动合同的经济补偿办法违反和解除劳动合同的经济补偿办法违反和解除劳动合同的经济补偿办法)))) issued by the Ministry of Labour on 3 December 1994 (effective from 1 January 1995)

• Measures for Compensations for Contravention of the Provisions in the Labour Law Concerning Labour Contracts ((((违反违反违反违反<<<<<<<<劳动法劳动法劳动法劳动法>>>>>>>>有关有关有关有关劳劳劳劳动合同规定的动合同规定的动合同规定的动合同规定的赔赔赔赔偿办法偿办法偿办法偿办法)))) issued by the Ministry of Labour on 10 May 1995 (effective from 10 May 1995)

• Regulations on Employees’ Paid Annual Leaves (translated as the Regulations on Paid Annual Leave for Employees in Westlaw China) (职工带职工带职工带职工带薪年休假条例薪年休假条例薪年休假条例薪年休假条例) promulgated by the State Council on 14 December 2007 (effective from 1/1/ 2008)

• Trade Union Law of the PRC ((((中华人民共和国工会法中华人民共和国工会法中华人民共和国工会法中华人民共和国工会法)))) (adopted on 3/4/1992 and amended on 27/10/2001 and 27/8/2009)

• Provisions/Regulations on Collective Contract(s) ((((集体合同规定集体合同规定集体合同规定集体合同规定))))(issued by MOLSS on 20/1/2004 and effective from 1/5/2004)

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• Law on Labor Dispute Mediation and Arbitration of the People’s Republic of China (中华人民共和国劳动争议调解仲裁法中华人民共和国劳动争议调解仲裁法中华人民共和国劳动争议调解仲裁法中华人民共和国劳动争议调解仲裁法) (promulgated on 29 December 2007; effective 1 May 2008)

• Rules on the Adjudication of Labour and Personnel Dispute Arbitration (or translated as the Rules on Handling Cases of Arbitration of Labor and Personnel Disputes)((((劳动人事争议仲裁办案规则劳动人事争议仲裁办案规则劳动人事争议仲裁办案规则劳动人事争议仲裁办案规则)))) (promulgated by the Ministry of Human Resources and Social Security on 1/1/2009)

• Provisions on Enterprise Labour Dispute Consultation and Mediation (企业劳动争议协商调解规定企业劳动争议协商调解规定企业劳动争议协商调解规定企业劳动争议协商调解规定) (promulgated by the Ministry of Human Resources and Social Security on 30/11/2011; effective from 1/1/2012)

• Interpretations of the Supreme People’s Court on Some Issues

Concerning the Application of Laws for the Trial of Labour Dispute Cases (or translated as the Interpretation of the Supreme People's Court on

Certain Issues Concerning the Application of Law in Trying Cases Involving

Labor Disputes ) ((((最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释))))(promulgated on 16/4/2001; amended in December 2008) (Judicial Interpretations I)

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• Interpretations of the Supreme People’s Court on Some Issues Concerning the Application of Laws for the Trial of Labour Dispute Cases (II) (or translated as the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in Trying Cases Involving LaborDisputes (II)) ((((最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释((((二二二二))))))))(14/8/2006) (Judicial Interpretations II)

• Interpretations of the Supreme People’s Court on Some Issues Concerning the Application of Laws for the Trial of Labour Dispute Cases (III) (or translated as the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in Trying Cases Involving LaborDisputes (III)) ((((最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释((((三三三三))))))))(13/9/2010) (Judicial Interpretations III)

• Interpretations of the Supreme People’s Court on Some Issues Concerning the Application of Laws for the Trial of Labour Dispute Cases (IV) (or translated as the Interpretations of the Supreme People‘s Court on Certain Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (IV)) ((((最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释最高人民法院关于审理劳动争议案件适用法律若干问题的解释((((四四四四))))))))(18/1/2013; effective 1/2/2013) (Judicial Interpretations IV)

• N.B. there can be local regulations and rules

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Relevant ministry

• Ministry of Human Resources and Social Security 人力资源和社会保障部 (MOHRSS) (formed in March 2008 from a merger of the former Ministry of

Personnel with the former Ministry of Labour and

Social Security [MOLSS] 劳动和社会保障部劳动和社会保障部劳动和社会保障部劳动和社会保障部)

• The predecessor of MOLSS is: Ministry of Labour

(MOL)

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Recruitment

Recruitment practice• Employment Management Provisions and/or Employment

Promotion Law:

• prohibit discriminatory recruiting/employment practice

• information for workers

• prohibited acts (e.g. detention of employees’ resident identity card etc.)

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Recruitment

Prohibited employment

• Others’ employees• Art.91 Labour Contract Law: joint & several liability with the

employee concerned for any loss to the former employer

• Art.99 Labour Law: joint responsibility for compensation for economic losses caused to the original employing unit

• (Exception: Art.69 para.2 LCL)

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Recruitment

Prohibited employment

• Juveniles

• Employment Management Provisions (Art.14(4));

Provisions on the Prohibition of Using Child Labour(Art.2 ): for juveniles under the age of 16, prohibited

• Labour Law (Art.94): recruiting juvenile under 16 → fineand (if in serious circumstances) revocation of business licence

• Juvenile workers (age from 16 to below 18)

• Labour Law (Art.64): prohibited work: down the pit of mines,

poisonous or harmful, etc.

• Provisions on Special Protection of Juvenile Workers (issued by the

MOL on 9/12/1994; effective from 1/1/1995): prohibition on some specified types of work, etc.

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Recruitment

Expatriates

• Provisions on the Administration of Employment of Foreigners in China:

• Conditions:

1. Special need of the post concerned, absence of appropriate candidate in China and the post not contravening any relevant

regulations (Art.6, para.1)

2. Having reached the age of 18 and healthy (Art.7(1))

3. With the necessary professional skills and corresponding working

experience for the work concerned (Art.7(2))

4. No criminal record (Art.7(3))

5. With a specific employing unit (Art.7(4))

6. Holding valid passport or equivalent international travel

documents (Art.7(5))

• Term of labour contract not be longer than 5 years (Art.18)

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RecruitmentExpatriates


• Procedures:

1. Application to trade authority (not for FIE) (Art.11)

2. Employment Licence (Art.5)

3. Employment Visa (Art.15)

4. Employment Permit (Art.16)

5. Residence Card/Certificate (Art.17)

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RecruitmentExpatriates


• Employment Licence not required for any of the following:1. Foreigners employed in China under agreements or accords

entered into by the Chinese government with foreign governments or international organisations for the implementation of sino-foreign projects of cooperation and exchange (Art.10(1)); or

2. Chief representatives and representatives of the permanent offices of foreign enterprises in China (Art.10(2)).

• Employment Licence and Employment Permit exempted for any of the following:1. Foreign professional technical and managerial personnel

employed directly by the Chinese government (Art.9(1));2. Foreign workers with special skills who work in offshore petroleum

operations without the need to go ashore for employment and hold the relevant Work Permit (Art.9(2)) ; or

3. Foreigner who conduct commercialised entertaining performance with the approval of the Ministry of Culture and hold the relevant Permit (Art.9(3))

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Recruitment

Expatriates

• N.B. for residents of Hong Kong, Taiwan or Macao,

different rules: Provisions on Administration of Employment of Taiwan, Hong Kong and Macao Residents in the Mainland 台湾香港澳台湾香港澳台湾香港澳台湾香港澳门居民在内地就居民在内地就居民在内地就居民在内地就业管理管理管理管理规定定定定 (issued by MOLSS on 14 June 2005 and effective from 1 October 2005)

• There is also an employment permit system (Art.4)

• Employer to apply (Art.4)

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Conclusion of employment contract

• Necessity (LL, Art.16: a labour contract shall be concluded where a labour relationship is to be established; LCL, Art.10: to establish a labour relationship, a labour contract in written form should be concluded)

• possibility of collective contract (discussed later)

• In writing (LL, Art.19: a labour contract shall be concluded in written form; LCL, Art.10: see above)

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When:

• At the time of establishing the labour relationship (LCL, Art.10)

• within 1 month of the date starting to use the worker if a labour relationship has already been established without concluding a labour contract in written form at the same time (LCL,

Art.10) (N.B. Art.5 of LCL Implementing Regulations)

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Penalty / consequence of breaches

• Intentional delay in conclusion of a labour contract → responsibility for compensation for any damage caused to employees (LL, Art.98)

• Failure to sign a written labour contract in more than 1 month but less than 1 year, the employer shall pay to the employee double the amount of his salary (LCL, Art.82) (N.B. LCL Implementing Regulations, Art.6)

• Failure to sign a written labour contract in 1 year or more from the date starting to use an employee → a labour contract without a fixed period is deemed to have been concluded (LCL, Art.14 para.3) (N.B. LCL Implementing Regulations, Art.7)

• Failure in concluding labour contract without a fixed period → double salary to employee from the date that such a contract should have been concluded (LCL, Art.82 para.2)

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• Prohibited practices:

• Detention of the employees’ identity card or other certificates thereof (LCL, Art.9)

• Requirement of guarantee (LCL, Art.9)

• Collection of property from the employee (LCL, 9)

• Penalty / consequences of breaches:

• Return of the ID card & punishment according to law (LCL, Art.84)

• Return of the guarantee/property + fine of RMB500-2000 per employee + compensation for any damage to the

employee (LCL, Art.84 para.2)

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• Validity of the labour contract:• (Labour Law) invalid if:

• In violation of laws, administrative rules and regulations (Art.18)

• Cheating, intimidation etc. (Art.18)

• (Labour Contract Law) invalid or partially invalid if:

• Conclusion or modification of the labour contract contrary to the other party’s true will by deception, coercion, or taking advantage of the other side’s difficulties (Art.26 para.1(1))

• Employer disclaiming legal liability thereof or denying the employees’ rights (Art.26 para.1(2)); or

• In violation of mandatory provisions of laws or administrative regulations (Art.26, para.1(3))

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• Validity of the labour contract:

• Invalidity of part of a labour contract may not affect the validity of the other parts (LCL, Art.27; LL, Art.18, para.2)

• An invalid labor contract has no legal binding force from the very beginning of its conclusion (LL, Art.18, para.2)

• Disputes over validity to be decided by the labour dispute arbitration institution or a people’s court (LCL, Art.26, para.2)

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• Consequences of invalid labour contract:• Remunerations: despite invalidity, remunerations needed to

be paid to employees if having already worked for the employer; amount as that for workers with same or similar posts (LCL, Art.28)

• Compensation:

• liability of the party at fault if any damage caused to the other party (LCL, Art.86); employer liable for compensation to labourers if damage caused and invalidity attributable to the employer (LL, Art.97)

• Interpretations of the Supreme People’s Court on Some Issues Concerning the Application of Laws for the Trial of Labour Disputes Cases (16 April 2001) (Art.14 para.2): for cases under Art.97 of LL, apply the standards used for calculating economic compensations for breach and revocation of labour contracts

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Conclusion of employment contract• Consequences of invalid labour contract:

• Compensation (cont’d):

• Measures for Compensations for Contravention of the Provisions in the Labour Law Concerning Labour Contracts

(issued by the MOL on 10 May 1995) (Art.2(2) & Art.3):

• If causing losses in wages, payment of wages + 25% of the

wages;

• If causing losses to labour protection treatment, replenish the

worker’s labour protection subsidies and articles in accordance

with state regulations

• If causing losses on work-related injury or medical benefits,

payment of such benefits in accordance with state regulations +

25% of the medical expenses

• If causing harm to female or juvenile workers’ bodily health, medical benefits during the period of medical treatment in

accordance with state regulations + 25% of medical expenses

• Other compensations as stipulated in the labour contract

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Contents of Labour Contracts

Mandatory clauses (LCL, Art.17):1. Employer’s name, residence, legal representative or

major principal;2. Worker’s name, residence, number of ID card (or other

valid identity certificate);3. Time limit of the labour contract;4. Contents and place of work;5. Work time, rest and leave;

6. Remunerations;7. Social security;8. Labour protection, work conditions, and protection

against and prevention of occupational harm; and9. Other matters that should be included in labour

contracts according to any law or regulation

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Mandatory clauses

• If a labour contract provided by the employer fails to include any of the mandatory clauses, it has liability to compensate the worker for any damage (LCL, Art.81)

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Optional clauses (LCL, Art.17 para.2):

• In addition to the mandatory clauses, the parties can stipulate in labour contracts other items such as probation period, training, confidentiality,

supplementary insurances, welfare treatments

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Contents of Labour Contracts- mandatory clauses

Time limit / period of labour contracts

• Three types of labour contracts (LCL, Art.12):

1. Those with a fixed period;

2. Those without a fixed period;

3. Those with a period to complete the prescribed work

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Fixed period labour contracts

• Those with a specified termination time (LCL, Art.13)

• For the parties to negotiate (LCL, Art.13 para.2)

BUT:

• Labour contract for foreigners: not longer than 5 years

(see slide above on ‘Expatriates’)

• period of labour contracts concerning migrant workers

working in mining pits or other works harmful to bodily health must not be longer than 8 years (Opinions of the

Ministry of Labour on Some Issues Concerning Implementation of the Labour Law of the People’s

Republic of China (劳动部关于贯彻执行劳动部关于贯彻执行劳动部关于贯彻执行劳动部关于贯彻执行《《《《中华人民共和中华人民共和中华人民共和中华人民共和国劳动法国劳动法国劳动法国劳动法》》》》若干问题的意见若干问题的意见若干问题的意见若干问题的意见) {issued by the MOL on 4/8/1995}, Art.21 para.2)

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Labour contracts without a fixed period

(or called “open-ended labour contracts”)

• no certain termination time specified (LCL, Art.14)


• Deemed in case of failure in conclusion of written labour contract after 1 year from date

of starting to use a worker (LCL, Art.14, para.3)

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Labour contracts without a fixed period (or called “open-ended labour contracts”)

• (LCL, Art.14 parar.2) Mandatory in any of the following situations if the worker proposes or agrees to renew or conclude a labour contract (unless the worker proposes to

conclude a fixed period labour contract):

1. The worker has worked for the employer for an uninterrupted term of 10 years;

2. When the employer initially operates a labour contract system or when a restructuring state-owned enterprise re-conclude labourcontracts, the worker has worked for an uninterrupted term of 10 years for the employer and there is less than 10 years for him to attain the statutory retirement age;

3. A labour contract is to be renewed after labour contract for fixed term has been concluded twice continuously, and the worker is not under any of the circumstances stipulated in Art.39 and Art.40 (1) and (2) of LCL

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• LCL, Art.39: list out situations where an employer can discharge a worker:

(1) The worker does not satisfy the recruitment requirements during the probation period;

(2) The worker is in serious violation of the employer’s bylaws;(3) The worker causes severe damage to the employer due to his

grave negligence of duties or pursuit of private benefits;

(4) The worker establishes a labour relationship with another employer at the same time and seriously influences his completion of the work in this employing unit, or he refuses to make a correction despite a request from the employer;

(5) The labour contract is invalidated due to circumstances referred to in Art.26, para.1 (1) of LCL;

(6) The worker is subject to criminal liabilities according to law.

Art.26 para1 (1):

Conclusion or modification of the labour contract contrary to the other party’s true will by deception, coercion, or taking advantage of the other side’s difficulties

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• LCL, Art.40:

(1) the worker falls ill or is injured for a non-work-related reason, who after expiration of the prescribed medical treatment period is not able to perform his original job nor

is able to assume any other position as arranged by the employer

(2) the worker is incapable of doing his job and remains so after training or adjustment of posts

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Labour contracts with a period to complete the prescribed work

• The time limit of the labour contract: the completion of the prescribed work (LCL, Art.15)


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Work time1. Normally, 8 hours per day and 40 hours per week (LL

Art.36; Regulations of the State Council Concerning the Working Hours of Employees (State Council Decree No.146, promulgated on 3/2/1994; amended on 25/3/1995), Reply on Questions About theRegulations of the State Council Concerning the Working Hours of Employees (issued by MOL on 22/4/1995; LaoBuFa [1995] No.187)

2. No fixed work-time (some translated as non-permanent working time) (Measures of the Ministry of Labour on the Examination and Approval of Enterprises Operating Unfixed Work-time or Accumulated Working Hours Systems关于企业实行不定时工作制和综合计算工时工作制的审批办法 issued by the MOL on 14/12/1994; LaoBuFa [1994] No.503)

• Applicable to some specified categories of employees (Art.4)

• Approval needed

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Work time

3. Accumulated Working Hours Systems (LaoBuFa[1994] No.503, Art.5)

• Computation of total working hours over a specified period (week, month, season or year); average daily and weekly working time must comply with legal requirements (Art.65,Opinions of the Ministry of Labour on Several Questions Concerning the Implementation of the Labour Law of the PRC(issued by the MOL on 4 August 1995) • Average monthly working days and working hours in a year are 20.83

days and 166.64 hours (Circular of the Ministry of Labour and Social Security on the Issues Concerning the Average Monthly Working-time in a Year and Converting the Payment of Employee, LaoSheBuFa[2008] No.3)

• Applicable to specified types of employments (LaoBuFa[1994] No.503, Art.5)

• Approval needed

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Overtime

• Art.41 of Labour Law sets down the conditions for overtime work:

1. Due to requirements of the employer’s production or business

2. After consultation with the trade union and workers

3. Limit on overtime:

a. Not over 1 hour for a day; or with special reasons, 3 hours a day provided that the health of workers is guaranteed

b. In any case, total overtime in a month shall not exceed 36 hours

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Overtime

• BUT, conditions under Art.41 of Labour Law do not apply for any of the following situations (Art.42, LL):

1. Emergency action is needed in event of natural disaster, accident or other reasons threatening workers’ life, health and safety of property;

2. Urgent repair is needed in event of breakdown of production equipment, transportation lines or public facilities that affects production and public interests;

3. Other circumstances as stipulated by laws and administrative regulations

� i.e. no need for prior consultation with trade union and workers and not subject to maximum limit

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Overtime

• What is overtime:

1. Normal/standard case:

• more than 8 hours in a working day

• Working on rest days or statutory holidays

2. Employment with no fixed work-time

• Working on statutory holidays

3. Accumulated Working Hours Systems

• average daily and weekly working time exceeding the

maximum under legal requirements

• Working on statutory holidays (not rest days)

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Overtime

• Overtime payment:

1. Not less than 150% of normal wages for extension of working hours (Art.44(1), LL)

2. Not less than 200% of normal wages for overtime on rest days if no compensated rest days (Art.44(2), LL) (Art.70, Opinions of the Ministry of Labour on Several Questions Concerning the Implementation of the Labour

Law of the PRC: should first arrange for compensated rest days)

3. Not less than 300% of normal wages for overtime on statutory holidays (Art.44(3), LL)

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Statutory holidays

• Measures Governing Holidays on National Festivals and Anniversaries (2013)

• Three types of statutory holidays:1. For all citizens (Art.2)

� New Year (1 January)

� Spring Festival (Lunar New Year) (the first three days of the Lunar New Year)

� Tomb-Sweeping Day/Qingming Festival (the day of the lunar Qingming Festival)

� International Labour Day (1 May)

� Dragon-Boat Festival (5th day of the 5th lunar month)

� Mid-Autumn Festival (15th day of the 8th lunar month)

� National Day (1-3 October)

2. For some citizens only (Art.3), e.g. female employees (half day on Women’s Day 8 March)

3. For particular ethnic group(s) (Art.4)

• Labour Law, Art.40

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Leave Entitlements

1. Statutory holidays (festivals)

2. Annual leave

3. Leave for visiting parents or spouses

4. Marriage and funeral leave

5. Leave for female employees

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Leave Entitlements

2. Annual leave

� Art.45, para.2 Labour Law: workers who have kept working for 1 year

� Regulations on Employees’ Paid Annual Leaves(promulgated on 14 December 2007; effective on 1

January 2008)

• Employees who have worked continuously for one year or more (Art.2)

• Amount of annual leave depends on length of service (Art.3)

• Art.4

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Leave Entitlements

3. Leave for visiting parents or spouses� No State provisions on employees of non-State enterprises

� Labour Law, Art. 40: ‘other holidays stipulated by laws, rules and regulations’

� Interim Provisions on Payment of Wages, Art.11: ‘where workers enjoy leave for … visiting family members in accordance with laws …’

� Regulations of the State Council on Employees’ Entitlement to Visiting Family Members (14/3/1981):for permanent employees who have worked for 1 year in State organisations, people’s organisationsor enterprises owned by the whole people and …

•42

Leave Entitlements

4. Marriage and Funeral Leave� No State provisions on employees of non-State

enterprises

� Labour Law, Art. 40: ‘other holidays stipulated by laws, rules and regulations’

� Interim Provisions on Payment of Wages, Art.11: ‘where workers enjoy leave for … wedding, handling funeral affairs in accordance with laws …’

� There are only State regulations (20/2/1980) on employees of State-owned enterprises in this respect

� However, there are local regulations, depending on locality

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Leave Entitlements


① Maternity leave

② Miscarriage leave

③ Leave for looking after new-born baby

④ Leave during pregnancy

•44

12

Leave Entitlements


① Maternity leave• Entitlement (Art. 7 para.1, Special Provisions on Labour

Protection of Female Workers, promulgated by the State Council on

28/4/2012; effective from 28/4/2012)

• Length (Art. 7 para.1, Special Provisions on Labour

Protection of Female Workers):

� 98 days (of which 15 days of pre-natal leave may be

taken)

� Additional 15 days for birth with complications

� For multiple birth, extra 15 days for each additional

baby to the first one

• Wage (Art. 5, Special Provisions on Labour Protection of

Female Workers)

•45

Leave Entitlements


② Miscarriage leave• Entitlement (Art. 7 para.2, Special Provisions on Labour

Protection of Female Workers)

• Length (Art. 7 para.2, Special Provisions on Labour

Protection of Female Workers):

� 15 days for miscarriage in less than 4 months of

pregnancy;

� 42 days for miscarriage in 4 months or more of

pregnancy

• Wage (Art.1, Notice of the MOL Concerning Several Questions about Child-bearing Entitlements of Female Employees (劳动部关于女职工生育待遇若干问题的通劳动部关于女职工生育待遇若干问题的通劳动部关于女职工生育待遇若干问题的通劳动部关于女职工生育待遇若干问题的通

知知知知) (issued by the MOL on 4/9/1988)

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Leave Entitlements


③ Leave for looking after new-born baby

• No State laws or regulations

• Depending on locality

④ Leave during pregnancy

• Also, no State laws or regulations

• Depending on locality

•47

Wages

• Minimum wages

• In cash and monthly

•48

13

References:• Brown, Ronald C. ‘China’s collective contract provisions: Can collective negotiations embody collective

bargaining?’ (2006) 16 Duke Journal of Comparative & International Law 35

• Bugaighis, Zana Z. ‘What impact will the revised Trade Union Law of China have on foreign business?’

(2007) 16(2) Pacific Rim Law & Policy Journal 405

• Chan, Kay-Wah. ‘Employment Law in China’ in Patricia Blazey and Kay-Wah Chan (eds) The Chinese

Commercial Legal System (Sydney: Thomson Lawbook 2008)

• Chan, Kay-Wah. ‘Labour Law Reform to Build a Harmonious Society with Scientific Outlook on

Development’ in Patricia Blazey and Kay-Wah Chan, Commercial Law of the People’s Republic of China

(Thomson Reuters, 2012)

• Chan, Kay-Wah. ‘China’s Labour Laws in Transition’ in John Garrick (ed) Law Wealth and Power in China:

Commercial Law Reforms in Context (Routledge, 2011) 163-181

• Chan, Kay-Wah. ‘The Global Financial Crisis and Labor Law in China’ (2012) 45(3) The Chinese Economy

24-41.

• Labour Contract Law of the PRC Drafting Group (ed). Zhonghua Ren Min Gong He Guo Lao Dong He Tong

Fa Shi Yi (Explanation on the Labour Contract Law of the People’s Republic of China) (2007)

• Li, J. (2009) ‘Çhina’s new labor contract law and protection of workers’, Fordham International Law Journal

32: 1083-1131.

• Monnin, Jill E. ‘Extending the reach of the Chinese Labor Law: How does the Supreme People’s Court’s

2006 Interpretation transform labour dispute resolution?’ (2007) 16(3) Pacific Rim Law & Policy Journal 753

• Shi, Xian Guang (ed). Lao Dong Fa Lü Wen Ti Yu Shi Wu Cao Zuo (The Practice for the Operation and

Issues of Labor Law) (2007)

• Wang, Kui Hua. Chinese Commercial Law (2000)

• Zimmerman, James M. China Law Deskbook : A Legal Guide for Foreign-invested Enterprises (2005)

• 劳动合同法实施条例起草人 (ed) (2008) 劳动合同法实施条例详解与适用, Beijing.

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Labor Law I Lecture Notes

Documents

Transcript of Labor Law I Lecture Notes