Understanding Labor and Employment Law in China

by Ronald C. Brown

• ISBN13: 9780521191487
• ISBN10: 0521191483
• Edition: 1st
• Format: Hardcover
• Copyright: 2009-10-12
• Publisher: Cambridge University Press

Summary

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 under-regulated workplaces. Now, there are new labor law reforms raising the rights and standards of workers throughout China. These new laws 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 and those that have caused business failures. This, combined with the recent global downturn and the millions of displaced and unemployed Chinese migrant laborers, has created ongoing debate about the new labor laws. Meanwhile the Chinese Union has organized Wal-Mart and 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 book provides a clear overview of the current labor and employment law environment in China and its legal requirements, as well as current practices under these laws used to deal with growing labor issues. Never has there been a time when understanding China's labor and employment laws is more important.

Table of Contents

Preface	p. xi
Acknowledgments	p. xiii
Understanding China's Regulation of the Workplace
Introduction	p. 3
Use of Laws to Regulate the Workplace	p. 4
Disparate Economic Impacts in the Workplace	p. 6
Labor and Employment Laws and Administration	p. 13
Responsibilities and Functions of the MOHRSS	p. 14
Administration of Labor and Employment Laws	p. 16
Goals and Expectations	p. 17
Employment Realationships
Employment Relationships	p. 23
Introduction	p. 23
Workforce Profile	p. 23
Employment Relationships	p. 23
The Employer	p. 25
The Employee	p. 29
Exclusions	p. 31
Exemptions	p. 33
Individual Labor Contracts: Formation and Content	p. 36
Contract Formation	p. 37
Content of Contracts	p. 38
Formalities, Application, and Required Content	p. 38
Performance	p. 40
Termination	p. 40
Legal Liabilities	p. 41
Collective Negotiations	p. 42
Employer Rules and Codes of Conduct	p. 42
Collective Labor Contracts and Collective Negotiations	p. 44
Trade Unions in China	p. 44
Role of the Union	p. 48
Historic Obstacles to Collective Negotiations	p. 49
Current Law on Collective Negotiations	p. 53
Coverage and Purposes	p. 54
Negotiating Representatives	p. 54
Scope of Negotiable Subjects	p. 55
Labor Bureau Supervision of Collective Negotiations	p. 56
Collective Negotiation Procedures	p. 57
Duties of Proper Conduct for Collective Negotiations	p. 58
Hiring And Employment Practices
Hiring and Employment Practices and the Law	p. 65
Employment Promotion and Labor Market Management	p. 65
Recruitment, Selection, and HRM	p. 69
Privacy and Defamation Limits	p. 72
Employment Antidiscrimination Laws	p. 75
Protected Status and Hiring Practices	p. 75
Gender	p. 77
Sexual Harassment	p. 81
Race/Ethnicity	p. 83
Migrant Workers	p. 86
Religious Belief	p. 91
Disability/Health	p. 92
Unprotected Status Categories	p. 99
Age	p. 99
Height	p. 100
Enforcement	p. 101
Working Conditions, Wages, and Hours
Safety and Health Protection	p. 105
Workplace Environment	p. 105
Safety	p. 105
Health	p. 107
Legal Regulation	p. 109
Safety Rights and Obligations	p. 109
Occupational Health Rights and Obligations	p. 111
Injury Compensation	p. 115
Injuries in the Workplace	p. 115
Coverage	p. 117
Administrative Requirements	p. 118
Disability Benefits	p. 120
Enforcement	p. 121
Wages and Hours	p. 125
Societal Disparities	p. 126
Law on Wages	p. 128
Law on Hours	p. 129
Law on Overtime	p. 130
Enforcement	p. 131
Employee Benefits: Leaves, Medical, Maternity, Work-Related, Unemployment, and Pension Insurance
Mandated and Nonmandated Employee Benefits	p. 135
Social Security System	p. 135
Mandated Social Insurance Programs and Funds	p. 136
Medical Benefits	p. 136
Maternity Benefits	p. 137
Work-Related Injury Insurance	p. 138
Unemployment Benefits	p. 139
Pension Insurance	p. 140
Housing Fund	p. 143
Union Fund	p. 143
Mandated Leave Benefits	p. 143
Legal Holidays	p. 143
Paid Leave: Annual, Medical, and Maternity	p. 144
Other Leaves Not Clearly Mandated: Home, Marriage, and Bereavement	p. 146
Nonmandated Employee Benefits	p. 146
Discipline and Termination Under Employment Agreements
Employer Work Rules, Discipline, and Termination	p. 151
Employer Work Rules and Discipline	p. 151
Termination under Labor Contracts	p. 154
When a Labor Contract Ends versus Terminates	p. 154
Termination by Employer without Notice or Severance Pay	p. 154
Termination by Employer with Notice and Severance Pay	p. 157
Limits and Prohibitions on Unilateral Termination by the Employer	p. 159
Termination by the Employee	p. 160
Liabilities: Remedies and Severance Pay	p. 160
Restrictive Covenants: Employee Loyalty and the Employer's Protectable Interests	p. 163
Legal Regulation	p. 163
Protectable Interests: Confidentiality and Competition	p. 164
Remedies for Breach	p. 166
Resolving Labor Disputes by Mediation, Arbitration, and Litigation	p. 168
Legal Regulation of Labor Disputes	p. 168
Mediation	p. 171
Arbitration	p. 172
Arbitration Process	p. 176
Litigation	p. 180
Rights, Remedies, and Multiple Forums
Working Labor and Employment Law Illustrations	p. 187
Rights, Remedies, and Multiple Forums	p. 187
Illustrative Cases	p. 189
Labor Arbitration	p. 189
Restrictive Covenant	p. 189
Individual Employment Contract	p. 192
Collective Contract	p. 198
Illustrative Contracts	p. 200
Individual Employment Contract	p. 200
A Model Collective Contract (for Trial Implementation)	p. 209
Appendix	p. 253
Labor Law of the People's Republic of China	p. 253
Labor Contract Law (of the People's Republic china)	p. 270
Regulation on the Implementation of the contact Law of the People's Republic of China	p. 290
Law of the People's Republic of China on Labor Dispute Mediation and Arbitration	p. 299
Employment Promotion Law of the People's Republic of china	p. 310
Index	p. 323
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