Protection of female employees. Although gender
discrimination in the workplace remains a problem, tremendous
strides forward have been made in recent years.
Female employees are afforded special protections, such as during
menstruation, pregnancy and postpartum periods, particularly during
the latter two. Employers are, for example, unconditionally
prohibited from discontinuing employment contracts of women who are
pregnant or breastfeeding.
Authorities in the prosperous southeastern coastal province of
Zhejiang recently developed an official list of female employees
protection measures, which will go into effect on July 1 this year.
The document is intended to update local legislation that was
enacted in 1998.
The new update tightens protections afforded by the law and
spells out harsher punishments for employers that violate female
employees' rights. For example, it prohibits employers from asking
employees who are lactating to work the night shifts or overtime.
It also requires that employers of five or more pregnant women
should set aside special break rooms for them. Furthermore,
employers who are found to turn down qualified women who apply for
positions solely on the basis of sex will face fines of 500 to
5,000 yuan (US$60 to US$605).
Right to rest. Article 43 of the Constitution says, "The
working people of the People’s Republic of China have the right to
rest." Article 3 of the Labor Law not only acknowledges the right
to rest as one of the basic rights of working people, but also sets
out specific rules in Chapter 4 to ensure this right is
granted.
The right to rest is a broad category encompassing several
areas. It includes rights to the prescribed total number of rest
hours; to rest during official holidays, including New Year’s Day,
Spring Festival, International Labor Day and National Day; to the
prescribed annual vacation with pay; and to rest within a specified
time. For instance, the Labor Law states, "The employer shall
guarantee that its staff and workers have at least one day off in a
week.
The law also sets limits on the extension of working hours to
ensure that working people are able to exercise their right to
rest.
Right to vocational training. The Constitution says, "The
state provides necessary vocational training for citizens before
they are employed." The Labor Law reinforces this basic right of
workers and with greater specificity.
An employer shall not refuse workers' requests to participate in
vocational training.
The employing unit must arrange time for workers if they must
take some time off from work to study. Employers must pay fees for
work-related vocational training, or reimburse employees who have
paid such fees themselves. Employees undertaking work that requires
special skills and training must be provided adequate training to
qualify them for the work.
A key part of vocational training is to set up a unified
qualification certificate system. The state guarantees the workers'
right to vocational training by classifying various professions,
setting technical standards, and organizing a vocational training
network, qualification certificate system and technical skill
appraisal network.
Other labor rights. In addition to the basic rights
discussed in the previous sections, Chinese workers are also
entitled to organize and participate in trade unions according to
the law; participate in democratic management by employees;
participate in labor competitions; submit reasonable proposals;
conduct scientific research; innovate, invent and create; criticize
and expose behavior of employers that is harmful to workers' safety
and health, or charge employers and supervisors with violations of
the Labor Law.
The rights to collective bargaining and to participate in
democratic management bear some additional discussion.
The right to organize and participate in trade unions is a
fundamental right of workers in China. Article 3 of the Trade Union
Law says, "Both industrial and administrative or professional
workers of enterprises, institutions and organs in China who rely
on wages as a main source of living income, regardless of their
ethnicity, race, sex, occupation, religious beliefs and educational
level, have the right to participate in and organize trade unions
in accordance with the law." The inclusion of both white- and
blue-collar workers in the definition is very broad and well
illustrates the constitutional principle of freedom of
association.
Trade unions safeguard the legitimate rights and interests of
workers. They are responsible for recruiting and organizing
employees, especially those in foreign-invested, township and
private enterprises. Employees in established foreign-invested
enterprises have the right to participate in and organize trade
unions. The establishment of trade unions should be included in
negotiations and contracts prior to the opening of foreign
enterprises and later written into enterprise constitutions.
The right to participate in democratic management of enterprises
refers to the institution allowing workers to participate in
enterprise management affairs through employees' congresses,
employee representatives' congresses or in other forms. It enables
them to perform democratic supervision over enterprises and
participate equally in consultation on the operation and management
of them. Participating in management is a major part of the
rational, democratic decision-making process and ensures that
workers have a say in the decisions that affect them.
State-owned enterprises should uphold and improve the system of
the employees' congresses and the representatives' congresses and
empower them in earnest.
Other limited liability companies and companies limited by
shares should be governed in a democratic way either by employee
representatives' congresses or by trade unions representing
employees.
In small state-owned enterprises contracted or rented to
third-party operators, employees' status as decision-makers and
normal operation of trade unions should be guaranteed according to
the law; the enterprises also should organize employees to
participate in democratic management and supervision in forms of
team/group democratic management committees or group meetings of
trade unions.
Urban, township and village collective enterprises should also
uphold and improve the system of the employee representatives'
congress and safeguard employees' rights to govern enterprises in a
democratic way. Shareholding cooperative enterprises are similarly
governed.
Foreign-invested and private enterprises should set up a system
to allow employees to participate in management through congresses
of trade union members (representatives) or other channels, such as
a consultation and negotiation system.
Enterprises with an existing system of employee representatives'
congress should uphold and gradually improve the system. Chairs or
deputy chairs of trade unions and employee representatives should
be included on boards of supervisors in enterprises adopting the
corporate system to supervise operations of the enterprises.
Employee representatives on boards of supervisors or directors
should be elected by employees' congresses, employee
representatives' congresses, trade union congresses or congresses
of trade union representatives organized by trade unions.
Li Jianfei, JD, is an associate professor at the Renmin
University of China, deputy director of the university’s Labor and
Social Security Law Research Institute, and former vice director of
the Laws and Regulations Department of the Ministry of
Labor.
(China.org.cn, People's Daily and Hangzhou
Daily contributed to this report
June 19, 2004)