National Guidelines in China - Ministry of Labour and Social Security

Notice of the Ministry of Labour, the Ministry of Public Security and the All-China Federation of Trade Unions Concerning Strengthening Labour Management in Foreign Investment Enterprises and Private Enterprises and the Effective Safeguarding of the Legal Rights and Interests of Employees of 4 March 1994

Addressed to labour personnel, departments, public security departments and all trade union federations of the various provinces, autonomous regions and directly administered municipalities, this Notice aims at:

1. strengthening the management of enterprise labour;
2. redressing behaviour which is in violation of labour laws and regulations; and,
3. protecting the legal rights and interests of enterprise workers.

The obligations of these enterprises include that they must not recruit female labour for posts where prohibited (paragraph 1). They must also implement policies and regulations on social insurance and pay social insurance funds, notably for maternity (paragraph 5). Paragraph 6 underlines that the enterprises must strictly apply laws and regulations on labour protection for female workers and must improve their protection during menstruation, pregnancy, maternity leave and nursing periods.

Circular of the Ministry of Labour on Provisions on Personnel Reduction Due to Economic Reasons in Enterprises (LMI No. 447) of 14 November 1994

This Circular aims at directing employing units to correctly exercise the power to reduce their personnel in accordance with the law (article 1).

Article 5 prohibits an employing unit that is reducing its personnel, from retrenching a female staff member or worker during pregnancy and the puerperal or breastfeeding period.

Circular of the Ministry of Labour on the Issuance of the Measures of Administrative Punishment for the Violation of the Labour Law of the People’s Republic of China (LMI No. 532) of 26 December 1994

The aim of this Circular is to ensure the implementation of labour law and to punish its violations (article 1). The labour administrative departments of the people’s governments at or above the county level must supervise and inspect the implementation of laws, rules and regulations on labour by enterprises and individual economic organisations (article 2).

In addition to the necessary corrections, a fine of up to yuan 3,000 must be imposed on an employing unit which infringes upon the rights of female staff and workers by requiring them to:

• work down the pit of mines, in work with Grade IV physical labour intensity, or in "other work that female staff and workers should avoid";
• work high above the ground, under low temperature, in cold water, or perform work with Grade III physical labour intensity;
• during the period of breastfeeding their babies of less than one year of age, engage in work with Grade III physical labour intensity, "other labour that they should avoid during their breastfeeding period", to extend their working hours, or to work night shifts (article 12);
• perform work with Grade III physical labour intensity, or "other work that they should avoid in pregnancy"; or,
• perform any work after the seventh month of pregnancy, or to extend their working hours or require them to work night shifts (article 13).

Furthermore, where maternity leave for female staff and workers is less than 90 days due to the violation of an employing unit of the laws on labour protection, the employing unit must be ordered to make corrections within a fixed period of time. Where corrections are not made upon expiration of the period, a fine of up to yuan 3,000 must be imposed (article 14).

Circular of the Ministry of Labour on Issuing the Measures (for Trial Implementation) for Maternity Insurance of the Staff and Workers in Enterprises (LMI No. 504) of 14 December 1994

The Measures issued by this Circular apply to enterprises in cities and towns and their staff and workers (article 2). They have the following purposes:

1. to protect the legitimate rights and interests of female staff and workers;
2. to ensure the provision of the economic compensation, medical treatment and health care to which these workers are entitled to obtain during their child-bearing; and,
3. to equalise the burden of maternity insurance premiums among enterprises (article 1).

The enterprise (not the staff and workers themselves) must pay maternity insurance premiums, in due proportion to its total pay-roll, to the agency in charge of social insurance funds. It must be listed as management expenses (article 4).

The following expenses must be paid from this maternity insurance fund:

1. maternity subsidies during maternity leave (calculated on the basis of the average monthly wages in the enterprise) (article 5); and
2. expenses for prenatal examination, delivering children, operations, hospitalisation and medicine, as well as medical expenses for diseases caused by child-bearing after de-hospitalisation (article 6).

The maternity insurance funds must be collected, paid and managed by the agency in charge of social insurance subordinate to the labour department (article 8).

Finally, supervision over the management of the fund must be conducted by the supervisory organs of social insurance (article 11). If an enterprise does not pay the premiums on time, an overdue fine for each overdue day must be imposed (article 12). Where an enterprise makes a fraudulent application and claim for maternity subsidies or medical expenses, all amounts of money falsely claimed must be recovered and an administrative sanction applied. Similarly, where an enterprise delays paying or refuses to pay maternity subsidies or medical expenses, the labour administrative department must order it to make corrections, and if harm has been suffered by the staff or workers, compensation must be paid (article 13).

Circular of the Ministry of Labour on Provisions on Training for Employment (LMI No. 490) of 9 December 1994

The Circular has been adopted with the aim of standardizing and promoting training for employment, improving the professional skills and abilities of workers and promoting employment for workers (article 1). The Circular applies to training organised by the labour administrative departments or by other departments (article 5).

Vocational training notably includes the organisation of special vocational training for special groups, such as women (article 2). Chapter II defines the organisation and management of this vocational training, while Chapter III deals with the role of Employment Training Centres. Chapter IV deals with employment training sponsored by "non-labour departments".

Circular of the Ministry of Labour on Measures for Vocational Guidance (LMI No. 434) of 27 October 1994

The measures set out in this circular promote the employment of workers and regulate and promote job placement services (article 1). Vocational guidance may include private meetings, informal discussions, public lectures, giving lessons or contracting through correspondences (article 4). It must be conducted by employment agencies (article 5). Among many other things, article 6 states that the work of vocational guidance includes the offer of specialised services of vocational guidance for special groups, such as women (paragraph (5)).

Provisional Administrative Measures on Wage Incomes of Foreign Investment Enterprises of 14 February 1997

The aim of these Measures is to guide Sino-foreign equity joint venture enterprises, Sino-foreign cooperative joint venture enterprises and wholly foreign-owned enterprises in deciding appropriate wage income standards for their employees (article 1). Actual wage income includes basic wages, bonuses, subsidies, allowances and other wage-equivalent income (article 2).

According to article 3, a foreign investment enterprise must abide by the principle of equal pay for equal work. Likewise, the nominal wage income of Chinese senior management personnel is also to be decided by the enterprise’s board of directors in accordance with the principle of equal pay for equal work (article 8).

Several Opinions on Collective Bargaining in Respect of Foreign Investment Enterprise Wages of 14 February 1997

This document has been promulgated by the General Office of the Ministry of Labour. It gives guidance for the conclusion of collective agreements. 

In accordance with the Opinion IV, a foreign investment enterprise which wants to develop collective bargaining in respect of wages must respect a series of principles, among which is the principle of "equal pay for equal work".