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)
