The State Administration of Work Safety – the highest authority in China for work safety and the prevention and control of occupational health hazards – has issued the Eight Rules on Control and Prevention of Occupational Health Hazards of Enterprises. Although the new rules provide only basic guidelines, they demonstrate the government's commitment to the prevention and control of occupational health hazards.
The State Administration of Work Safety recently issued the Regulations on the Administration of Occupational Hazard Notifications and Warning Signs, which increase employer obligations to notify employees of occupational hazards and set up warning signs in workplaces.
The Shanghai Hongkou Arbitration Committee recently ruled that a company had illegally terminated its general manager and ordered the company to reinstate him, even though the board of directors had removed him from his post in accordance with the Company Law. According to the company, the grounds for termination were dereliction of duty and serious violation of company rules.
The Beijing High People's Court and the Beijing Municipal Employment Dispute Arbitration Committee have jointly issued the Meeting Minutes (II) on the Application of Law in Employment Disputes. The meeting minutes clarify some controversial employment issues often faced by employers, such as open-term employment contracts and double wage penalties.
The All-China Federation of Trade Unions has announced its collective bargaining working plan for 2014 to 2018, which calls on all lower-level union organisations to conduct collective bargaining in more companies and improve the quality of collective bargaining. The plan recommends that labour unions involve as many employees as possible in the collective bargaining process to increase employee awareness.
A court recently upheld an employee's claim for Rmb85,000 against his former employer for unlawful termination, because the employer had relied on a valid company policy in bad faith. The dispute arose from the company's policy requiring employees to seek advance approval to take leave and centred on the timeliness of the company's notification of its decision on a leave request.
The Ministry of Human Resources and Social Security has issued the Provisional Regulations on Labour Dispatch, which recently took effect. The regulations clarify important issues on the use of dispatched workers, but also leave other issues of concern unclarified. The term 'dispatched worker' is similar to the terms 'temp worker', 'agency worker' and 'contingency worker' as used in other countries.
A court recently upheld an employee's overtime pay claim for meal time during overtime hours. The case shows that companies cannot automatically assume that meal time will never be considered working hours, and that the courts will sometimes look into whether the employee was really resting during the entire meal time when deciding working hour and overtime pay cases.
A Chinese court recently ruled in a termination case that evidence taken from an employee's work email was inadmissible. Not all courts would necessarily support such an employee-friendly decision, but if this position does become more widespread, it will create significant additional hurdles for employer investigations of potential misconduct.
In a recent Chongqing case, an employee's termination based on poor performance ranking was ruled unlawful, even though poor performance ranking was stated as grounds for termination in the employment contract and company rules. Although forced ranking systems like the one in this case are common in some US companies, many Chinese courts take the view that poor ranking alone cannot justify unilateral termination.
The secondment of expatriate employees to China has been a headache for multinational companies since 2009, when the tax authorities started to treat secondment as creating a permanent establishment of the overseas employer. However, new rules recently issued under domestic tax law with respect to cross-border secondment will hopefully ease the pain associated with expatriate secondments.
The Supreme People's Court has issued the long-awaited Interpretation on Various Issues Concerning Application of Law in the Trial of Employment Disputes (commonly referred to as 'SPC IV'), which provides clarity on some hot-button issues. Among other things, it sets out certain severance pay protections and specific rules on the enforcement of non-compete restrictions.
The Standing Committee of the National People's Congress has finally passed an amendment to the Employment Contract Law, under which companies will no longer be allowed to hire staff through staffing agencies, except under very narrow circumstances. Companies should be mindful of how these changes may affect their human resources structures.
The Shanghai Pudong District People's Court has dismissed an employee's claim against his former employer for termination payments after finding that the credibility of the employee's evidence was outweighed by the evidence produced by the employer and the employee's refusal to take a polygraph test. The case highlights that submission of fraudulent evidence is still a problem in employment disputes in China.
The Dongguan Number 3 District People's Court has upheld an employer's termination of 17 striking employees for misconduct. Although Chinese law does not explicitly allow employees to strike, it is silent on whether strikes are considered illegal. This case indicates that in some strike situations, the courts may uphold an employer's disciplinary actions against striking employees on the ground of serious violation of company rules.
The Shenzhen Municipal People's Congress Standing Committee has passed the Regulations on the Promotion of Sex Equality, which will become effective in January next year. While various national laws and local regulations already contain provisions related to sex discrimination and sexual harassment, this is the first piece of legislation exclusively addressing the issue of sex equality.
The State Administration of Work Safety, the Ministry of Health, the Ministry of Human Resources and Social Security and the All China Federation of Trade Unions have jointly promulgated the amended Administrative Regulations on Measures to Control High Temperature. The regulations require employers to carry out special labour protection measures in high-temperature environments.
A Beijing court has ruled in favour of a pregnant employee who was dismissed for lying about her marital status in her job application. The company was ordered to reinstate the employee and pay her salary for the period between the wrongful termination and reinstatement. The court held that her marital status was not directly relevant to the employment contract and did not affect work efficiency or business operations.
The State Council has issued the amended Regulations on the Protection of Female Employees, which supersede the previous 1988 regulations. In addition to the extension of maternity leave from 90 to 98 days, the new regulations strengthen the benefits and protections for female employees with respect to leave entitlement for miscarriage, maternity stipends and the scope of prohibited work.
The State Administration of Work Safety has promulgated three new regulations to implement the recently revised Occupational Disease Prevention and Control Law. The regulations offer guidance on employers' obligations in terms of disease prevention and control; they provide for fines of up to Rmb500,000, and even closure of the company in serious cases.