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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II CONTENT OF COLLECTIVE NEGOTIATION CHAPTER III THE REPRESENTATIVES OF COLLECTIVE NEGOTIATION CHAPTER IV PROCEDURES FOR COLLECTIVE NEGOTIATION CHAPTER V THE CONCLUSION, MODIFICATION, CANCELLATION AND TERMINATION OF COLLECTIVE CONTRACTS CHAPTER VI EXAMINATION OF COLLECTIVE CONTRACTS CHAPTER VII MEDIATION AND SETTLEMENT OF DISPUTES IN COLLECTIVE NEGOTIATION CHAPTER VIII SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. In order to regulate the acts of conducting collective negotiations and the signing of collective contracts, to protect the legitimate rights and interests of the workers and the employing entities, the present Provisions are formulated in accordance with the Labor Law of the People's Republic of China and the Trade Union Law of the People's Republic of China. Article 2. The present Provisions shall be applicable to the enterprises and the public institutions implementing enterprise-management within the territory of China (hereinafter referred to the employing entities) that conduct collective negotiations and conclude collective contracts with their respective employees. Article 3. The term "collective contract" mentioned in the present Provisions refers to the written agreement concluded between an employing entity and the workers of this entity on matters relating to labor remuneration, working time, rest and vacations, occupational safety and health, professional training and insurance and welfare through collective negotiation in accordance with laws, regulations and rules. The term "special collective contract" mentioned in the present Provisions refers to the special written agreement concluded between an employing entity and the workers of this entity on a specific matter in accordance with the laws, regulations and rules. Article 4. When signing a collective contract or special collective contract and determining the related matters, the employing entity and the workers of this entity shall adopt the way of collective negotiation. The collective negotiations shall be mainly in the form of negotiation meeting. Article 5. When conducting a collective negotiation or signing a collective contract or special collective contract, the parties concerned shall abide by the following principles: (1) Abiding by the laws, regulations and rules and the relevant provisions of the state; (2) Respecting mutually, negotiating equally; (3) Keeping good faith, conducting fair cooperation; (4) Taking into consideration the legitimate rights and interests of both parties; and (5) Not taking extreme actions. Article 6. A collective contract or special collective contract shall have legal binding force on the employing entity and all the employees of this entity. The standards for working conditions and labor remuneration stipulated in the labor contract signed by an employing entity and an employee shall not be lower than those in the collective contract or special collective contract. Article 7. The administrative departments of labor and social security at (above) the level of county shall, according to their respective administrative area, conduct supervision over the information on the collective negotiations, the signing and fulfillment of collective contracts of the employing entities and their respective employees, and shall be responsible for the examination of the collective contracts or special collective contracts. CHAPTER II CONTENT OF COLLECTIVE NEGOTIATION Article 8. Both parties to the collective negotiation may conduct collective negotiation on some or one of the following matters, to sign a collective contract or special collective contract: (1) Labor remuneration; (2) Working time; (3) Rest and vacations; (4) Occupational safety and health; (5) Additional insurance and welfare; (6) Special protection for female employees and minors; (7) Trainings of professional skills; (8) Management of labor contracts; (9) Rewards and punishments; (10) Staff reduction; (11) The term of collective contract; (12) Procedures for modifying or canceling the collective contract; (13) Settlement of disputes, which arise in fulfilling the collective contract, through negotiation; (14) Liabilities for breach of collective contract; (15) Other matters agreed on by both parties through negotiation. Article 9. The labor remuneration shall mainly cover: (1) the level of wages, the wage distribution system, the wage standards and the wage distribution method of an employing entity; (2) the measures for wage payments; (3) the overtime wages and the standards on allowances or subsidies and the measures for the distribution of premium; (4) the measures for the adjustment of wages; (5) the wages and treatments during the probation period, the medical leave or family leave; (6) the measures for paying the wages (subsistence allowance) to the employees under special circumstances; and (7) measures for distributing other labor remunerations. Article 10. The working time shall mainly cover: (1) the system of working hours; (2) the measures for overtime work; (3) the working time for special jobs; and (4) the standard for labor quota Article 11. The rest and vocations shall mainly include: (1) the measures for the daily rest time, weekly rest days arrangement and annual vocations; (2) the rest time and vocations for the employees who are unable to implement the standard working time; and (3) other vocations. Article 12. The occupational safety and health shall mainly cover: (1) the occupational safety and health responsibility system; (2) the working conditions and safety technologies and measures; (3) the procedures for safe operations; (4) the standard for distributing labor protection appliances; and (5) regular health examinations and occupation health examinations. Article 13. The additional insurances and welfares shall mainly include: (1) the types and scopes of the additional insurances; (2) the basic welfare system and welfare facilities; (3) the extension of medical leave and the treatments; and (4) the welfare system regarding the relatives of the employees. Article 14. The special protection of female employees and minors shall mainly include: (1) the types of work that shall not be assigned to female employees and minors; (2) the labor protection for female employees during their periods of catamenia, pregnancy, confinement and breast feeding; (3) the regular health examination for female employees and minors; and (4) the employment and registration of minors. Article 15. The training of professional skills shall mainly include: (1) the planning on the training of professional skills and the annual plan; (2) the withholding and use of fees for the training of professional skills; and (3) the measures for guaranteeing and perfecting the training of professional skills. Article 16. The management of labor contracts shall mainly include: (1) the date a labor contract is concluded; (2) the conditions for determining the duration of a labor contract; (3) the general principle for modifying, canceling and renewing a labor contract, and the conditions for terminating a labor contract without fixed time period; and (4) the conditions and time period for the probation. Article 17. The rewards and punishments shall mainly include: (1) the labor disciplines; (2) the performance evaluation reward and punishment system; and (3) the reward and punishment procedures. Article 18. The staff reduction shall mainly include: (1) the program on staff reduction; (2) the procedures for staff reduction; and (3) the implementing measures for staff reduction and the compensation standards; CHAPTER III THE REPRESENTATIVES OF COLLECTIVE NEGOTIATION Article 19. The term "the representatives of collective negotiation" (hereinafter referred to representatives) mentioned in the present Provisions refers to the people who appear according to the legal procedures and are entitled to participate in the collective negotiation on behalf of the interests of their own party. Both parties to a collective negotiation shall have the same number of representatives. Each party shall have at least 3 representatives and determine one of them as the chief representative. Article 20. The representatives of collective negotiation on behalf of the employees shall be assigned by the labor union of the entity. In the absence of a labor union, they shall be subject to the democratic recommendation by the employees of this entity and shall be subject to the consent by at least half of the employees. The chief representative on behalf of the employees shall be the chairman of the labor union of this entity. The chairman of the labor union may authorize in writing another representative to take the position of the chief representative. In the absence of the chairman of the labor union, the chief representative shall be the major person-in-charge of the labor union. In the absence of the labor union, the chief representative on behalf of the employees shall be subject to the democratic recommendation by the representatives. Article 21. The representatives on behalf of the employing entity shall be assigned by the legal representative of this entity, the chief representative shall be the legal representative of this entity or another managerial person authorized by him in writing. Article 22. The period for the representatives to perform their duties shall be determined by the parties they represent. Article 23. Each party's chief representative of collective negotiation may authorize in writing some professionals outside the entity as representatives, the number of whom shall not exceed one third of the representatives from this entity. The chief representative shall not be a person outside the entity. Article 24. No person shall concurrently act as a representative of the employing entity and a representative of the employees. Article 25. The representatives shall perform the following duties: (1) To participate in the collective negotiation; (2) To accept the inquiries of the persons of the party represented by them, and timely announce the information on the negotiation to the persons of the party represented by them and asking them for advices; (3) To offer the information and materials related to the collective negotiation; (4) To participate in the settlement of the disputes under collective negotiation on behalf of the party represented by them; (5) To conduct supervision over the fulfillment of the collective contract or special collective contract; and (6) Other duties provided for in the laws, regulations and rules. Article 26. The representatives shall protect the normal production or work order of the entity, and shall not have any acts of threatening, buying over or cheating. The representatives shall keep confidential the commercial secrets of the employing entity that they learn of in the course of collective negotiation. Article 27. The representatives inside an enterprise who participate in the collective negotiation shall be deemed as having provided normal labor. Article 28. Where the labor contract of a representative expires during the period of his performing the duties as a representative, it shall automatically extend to the time when he has fulfilled his duties, the employing entity shall not cancel the labor contract unless he is under any of the following circumstances: (1) He seriously violates the labor disciplines or the provisions and rules formulated by the employing entity in pursuance of the law; (2) He seriously neglects his duties or seeks private interests, which leads to serious impairment to the interest of the employing entity; or (3) He is subject to criminal liabilities. During the period of a person' performance of the duties as a representative, the employing entity shall not change his post without justifiable reason. Article 29. Where there are any disputes over the matters provided for in Articles 27 and 28 between a representative of the employees and the employing entity, an application for arbitration may be filed to the local arbitration commission for labor disputes. Article 30. The labor union may change the representatives of the employees. In the absence of the labor union, the representatives of the employees may be changed upon the consent of at least half of the employees. The legal representative of the employing entity may change the representatives of the employing entity. Article 31. Where there is any vacancy of representative due to change, resignation or force majeure, a new representative shall appear in accordance with the present Provisions within 15 days from the day when the vacancy occurs. CHAPTER IV PROCEDURES FOR COLLECTIVE NEGOTIATION Article 32. Either party of the collective negotiation may make a written request for collective negotiation to the other party about the conclusion of a collective contract or special collective contract and the related matters. Where a party makes a request for collective negotiation, the other party shall give it a written reply within 20 days from the day when it receives the request, and shall not refuse to conduct collective negotiation without justifiable reason. Article 33. The representatives shall make the following preparations prior to the negotiation: (1) To get familiar with the laws, regulations, rules and systems related to the collective negotiation; (2) To learn the information and materials related to the collective negotiation, collect the opinions of the employing entity and the employees about the collective negotiation; (3) To determine the matters under collective negotiation, which may be drafted by the party that makes a request for collective negotiation or may be jointly drafted by the representatives assigned by both parties; (4) To determine the time and place of the collective negotiation; and (5) To jointly determine a non-negotiation representative as the note-keeper of the collective negotiation. The note-keeper shall be neutral and impartial, and shall keep the secrets of both parties of the collective negotiation. Article 34. The meeting of collective negotiation shall be hosted by the chief representatives of both parties in turn, who shall comply with the following procedures: (1) To announce the agenda and disciplines of the meeting; (2) The chief representative of a party sets forth the specific content and requests for the collective negotiation, the chief representative of the other party makes corresponding responses; (3) Both parties state their respective opinions about the matters under negotiation, fully discuss them; and (4) The chief representatives of both parties sum up the opinions. Where an agreement is reached, a draft collective contract or a draft special collective draft shall be formed, which shall be signed by the chief representatives of both parties. Article 35. Where no agreement is reached or there arises any unexpected issue in the collective negotiation, the negotiation may be suspended upon mutual agreement. The time limit for the suspension and the time, place and content of next negotiation shall be determined by both parties upon mutual agreement. CHAPTER V THE CONCLUSION, MODIFICATION, CANCELLATION AND TERMINATION OF COLLECTIVE CONTRACTS Article 36. The draft of collective contract or the draft of special collective contract agreed on by the representatives of both parties shall be discussed by the employees representative assembly or all the employees. When the employees representative assembly or all the employees discuss the draft of collective contract or the draft of special collective contract, at least two thirds of the members of the employees representative assembly or of all the employees shall be present. The draft of the collective contract or the draft of the special collective contract shall not be adopted unless it is agreed upon by at least half of the members of the employees representative assembly or of all the employees. Article 37. The draft of collective contract or the draft of special collective contract adopted at the employees representative assembly or employees' assembly shall be signed by the chief representatives of both parties of the collective negotiation. Article 38. In general, the period of a collective contract or special collective contract shall be 1-3 years, which shall be terminated at its expiration or in the occurrence of the conditions for termination stipulated by both parties. Within 3 months prior to the expiration of a collective contract or special collective contract, either party may request the other party to sign a new contract or renew the contract. Article 39. A collective contract or special collective contract may be modified or cancelled upon mutual agreement of both parties. Article 40. A collective contract or special collective contract may be modified or cancelled under any of the following circumstances: (1) It is unable to fulfill the collective contract or special collective contract because the employing entity is merged, dissolved or bankrupt; (2) It is unable to fulfill the collective contract or special collective contract or the said contract in part due to force majeure; (3) The conditions for modifying or canceling the collective contract or special collective contract occurs; or (4) Other circumstances provided for in the laws, regulations and rules. Article 41. The procedures for the collective negotiation provided for in the present Provisions shall be applicable to the modification or cancellation of a collective contract or special collective contract. CHAPTER VI EXAMINATION OF COLLECTIVE CONTRACTS Article 42. After a collective contract or special collective contract has been signed or has been modified, the employing entity shall submit the text in triplicate to the administrative department of labor and social security within 10 days from the day when the chief representatives sign the contract. The administrative department of labor and social security shall register the submitted collective contract or special collective contract. Article 43. The examination of collective contracts or special collective contracts shall implement territorial administration, the specific scope of administration shall be specified by the administrative department of labor and social security of the province level. The collective contracts of the enterprises under the Central Government and those of the employing entities of trans-province, trans-autonomous region or trans-municipality directly under the Central Government shall be submitted to the administrative department of labor and social security of the province level specified by the Ministry of Labor and Social Security. Article 44. The administrative department of labor and social security shall examine the validity of a collective contract or special collective contract submitted to it according to the following items: (1) Whether the qualifications of subjects of both parties of the collective negotiation are in line with the laws, regulations and rules or not; (2) Whether the procedures for the collective negotiation is in violation of the laws, regulations and rules; and (3) Whether the content of the collective contract or special collective contract is contrary to the provisions of the state. Article 45. Where the administrative department for labor and social security has any objection to a collective contract or special collective contract, it shall serve the Examination Opinion on the negotiation representatives of both parties within 15 days from the day when it receives the text. The Examination Opinion shall specify the following: (1) The names, addresses of both parties of the collective contract or special collective contract; (2) The date on which the administrative department of labor and social security receives the collective contract or special collective contract; (3) The examination opinion; and (4) The date on which the examination opinion is formed. The Examination Opinion shall be affixed with the seal of the administrative department of labor and social security. Article 46. Where the employing entity and its employees conclude a new collective contract or special collective contract after conducting collective negotiation about the matters opposed by the administrative department of labor and social security, the employing entity shall submit the new contract to the administrative department of labor and social security for examination in pursuance of Article 42 of the present Provisions. Article 47. Where the administrative department of labor and social security raises no objection within 15 days from the day when it receives the text, the collective contract or special collective contract shall come into effect forthwith. Article 48. A valid collective contract or special collective contract shall be timely announced by the negotiation representatives to all those of whom they are on behalf, in a proper form from the day when the contract comes into effect. CHAPTER VII MEDIATION AND SETTLEMENT OF DISPUTES IN COLLECTIVE NEGOTIATION Article 49. Where both parties fail to settle the disputes arising in the course of a collective negotiation, either party or both parties may file a written application to the administrative department of labor and social security for mediation and settlement. Where no application is filed, the administrative department of labor and social security may mediate and settle the disputes, if it deems necessary. Article 50. The administrative department of labor and social security shall organize people of the labor union of the same level and the business organization to jointly mediate and settle the disputes arising in a collective negotiation. Article 51. The disputes arising in a collective negotiation shall be under territorial administration, the specific scope of administration shall be provided for by the administrative department of labor and social security. With regard to the disputes arising in a collective negotiation of an enterprise under the Central Government or an employing entity of trans-province, trans-autonomous region or trans-municipality directly under the Central Government, the administrative department of labor and social security of the province level designated by the Ministry of Labor and Social Security shall organize people of the labor union of the same level and business organization to mediate and settle the disputes, and the Ministry of Labor and Social Security may organize the relevant parties to mediate and settle when necessary. Article 52. The mediation and settlement of the disputes arising in a collective negotiation shall be completed within 30 days from the day when an application for mediation and settlement is received. If it hasn't been finished within the time limit, the time limit may be extended appropriately, but the extended time limit shall not exceed 15 days. Article 53. The mediation and settlement of the disputes arising in a collective negotiation shall proceed as follows: (1) To accept a mediation and settlement application; (2) To investigate into and learn the information about the disputes; (3) To discuss and formulate a program on the mediation and settlement of the disputes; (4) To mediate and settle the disputes; and (5) To make a Mediation and Settlement Agreement. Article 54. A Mediation and Settlement Agreement shall include mediation and settlement application, the facts of disputes and mediation results, where both parties fail to reach a consensus on some of the matters being negotiated, it shall specify the relevant matters to be negotiated continuously. The Mediation and Settlement Agreement shall come into effect after being affixed with the signatures or seals of the persons responsible for the mediation and settlement of the disputes arising in a collective negotiation and the chief representatives of both disputing parties. Both disputing parties shall abide by the Mediation and Settlement Agreement after it takes effect. CHAPTER VIII SUPPLEMENTARY PROVISIONS Article 55. With regard to any dispute that occurs in fulfilling a collective contract, if the parties concerned fail to settle the dispute through consultation, they may file an application to the arbitration commission for labor disputes in pursuance of the law. Article 56. Where an employing entity refuses, without any justifiable reason, the request for the collective negotiation made by the trade union or the representatives of the employees, it shall be punished in accordance with the Trade Union Law and other relevant laws and regulations. Article 57. The present Provisions shall be implemented as of May 1, 2004. The Provisions on Collective Contracts promulgated by the former Ministry of Labor on December 5, 1994 shall be abolished at the same time. |
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