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Understanding Labor and Employment Law in China

Understanding Labor and Employment Law in China

Author: Ronald C. Brown
Publisher: Cambridge University Press
ISBN: 9781107402652
Published In: July 2011
Format: Paperback , 350 pages
Jurisdiction: China ? Disclaimer:
Countri(es) stated herein are used as reference only

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Continued economic prosperity in China and its international competitive advantage have been due in large part to the labor of workers in China, who for many years toiled in underregulated workplaces. More recently, labor law reforms have been praised for their progressive measures and, at the same time, blamed for placing too many economic burdens on companies, especially those operating on the margins, which in some cases have caused business failures. This, combined with the global downturn and the millions of displaced and unemployed Chinese migrant laborers, has created ongoing debate about the labor laws. Meanwhile, the Chinese Union has organized many of the Global Fortune 500 companies, and a form of collective bargaining is occurring. Workers are pursuing their legal labor rights in increasing numbers. This 2009 book provides a clear overview of the labor and employment law environment in China and its legal requirements, as well as practices under these laws used to deal with labor issues.

• Readable and comprehensive

Preface	xi
Acknowledgments	xiii
PART I: UNDERSTANDING CHINA'S REGULATION OF THE WORKPLACE	1
1. Introduction	3
1. Use of Laws to Regulate the Workplace	4
2. Disparate Economic Impacts in the Workplace	6
2. Labor and Employment Laws and Administration	13
1. Responsibilities and Functions of the MOHRSS	14
2. Administration of Labor and Employment Laws	16
3. Goals and Expectations	17
PART II: EMPLOYMENT RELATIONSHIPS	21
3. Employment Relationships	23
1. Introduction	23
a. Workforce Profile	23
b. Employment Relationships	23
2. The Employer	25
3. The Employee	29
4. Exclusions	31
5. Exemptions	33
4. Individual Labor Contracts: Formation and Content	36
1. Contract Formation	37
2. Content of Contracts	38
a. Formalities, Application, and Required Content	38
b. Performance	40
c. Termination	40
d. Legal Liabilities	41
e. Collective Negotiations	42
f. Employer Rules and Codes of Conduct	42
5. Collective Labor Contracts and Collective Negotiations	44
1. Trade Unions in China	44
a. Role of the Union	48
2. Historic Obstacles to Collective Negotiations	49
3. Current Law on Collective Negotiations	53
a. Coverage and Purposes	54
b. Negotiating Representatives	54
c. Scope of Negotiable Subjects	55
d. Labor Bureau Supervision of Collective Negotiations	56
e. Collective Negotiation Procedures	57
f. Duties of Proper Conduct for Collective Negotiations	58
PART III: HIRING AND EMPLOYMENT PRACTICES	63
6. Hiring and Employment Practices and the Law	65
1. Employment Promotion and Labor Market Management	65
2. Recruitment, Selection, and HRM	69
3. Privacy and Defamation Limits	72
7. Employment Antidiscrimination Laws	75
1. Protected Status and Hiring Practices	75
a. Gender	77
b. Sexual Harassment	81
c. Race/Ethnicity	83
d. Migrant Workers	86
e. Religious Belief	91
f. Disability/Health	92
2. Unprotected Status Categories	99
a. Age	99
b. Height	100
3. Enforcement	101
PART IV: WORKING CONDITIONS, WAGES, AND HOURS	103
8. Safety and Health Protection	105
1. Workplace Environment	105
a. Safety	105
b. Health	107
2. Legal Regulation	109
a. Safety Rights and Obligations	109
b. Occupational Health Rights and Obligations	111
9. Injury Compensation	115
1. Injuries in the Workplace	115
2. Coverage	117
3. Administrative Requirements	118
4. Disability Benefits	120
5. Enforcement	121
10. Wages and Hours	125
1. Societal Disparities	126
2. Law on Wages	128
3. Law on Hours	129
4. Law on Overtime	130
5. Enforcement	131
PART V: EMPLOYEE BENEFITS: LEAVES, MEDICAL, MATERNITY, WORK-RELATED, UNEMPLOYMENT, AND PENSION INSURANCE	133
11. Mandated and Nonmandated Employee Benefits	135
1. Social Security System	135
2. Mandated Social Insurance Programs and Funds	136
a. Medical Benefits	136
b. Maternity Benefits	137
c. Work-Related Injury Insurance	138
d. Unemployment Benefits	139
e. Pension Insurance	140
f. Housing Fund	143
g. Union Fund	143
3. Mandated Leave Benefits	143
a. Legal Holidays	143
b. Paid Leave: Annual, Medical, and Maternity	144
c. Other Leaves Not Clearly Mandated: Home, Marriage, and Bereavement	146
4. Nonmandated Employee Benefits	146
PART VI: DISCIPLINE AND TERMINATION UNDER EMPLOYMENT AGREEMENTS	149
12. Employer Work Rules, Discipline, and Termination	151
1. Employer Work Rules and Discipline	151
2. Termination under Labor Contracts	154
a. When a Labor Contract Ends versus Terminates	154
b. Termination by Employer without Notice or Severance Pay	154
c. Termination by Employer with Notice and Severance Pay	157
d. Limits and Prohibitions on Unilateral Termination by the Employer	159
3. Termination by the Employee	160
4. Liabilities: Remedies and Severance Pay	160
13. Restrictive Covenants: Employee Loyalty and the Employer's Protectable Interests	163
1. Legal Regulation	163
2. Protectable Interests: Confidentiality and Competition	164
3. Remedies for Breach	166
14. Resolving Labor Disputes by Mediation, Arbitration, and Litigation	168
1. Legal Regulation of Labor Disputes	168
2. Mediation	171
3. Arbitration	172
4. Arbitration Process	176
5. Litigation	180
PART VII: RIGHTS, REMEDIES, AND MULTIPLE FORUMS	185
15. Working Labor and Employment Law Illustrations	187
1. Rights, Remedies, and Multiple Forums	187
2. Illustrative Cases	189
a. Labor Arbitration	189
b. Restrictive Covenant	189
c. Individual Employment Contract	192
d. Collective Contract	198
16. Illustrative Contracts	200
1. Individual Employment Contract	200
2. A Model Collective Contract (for Trial Implementation)	209
Appendix	253
1. Labor Law of the People’s Republic of China	253
2. Labor Contract Law (of the People’s Republic of China)	270
3. Regulation on the Implementation of the Employment Contract Law of the People's Republic of China	290
4. Law of the People's Republic of China on Labor Dispute Mediation and Arbitration	299
5. Employment Promotion Law of the People's Republic of China	310
Index	323