International Labor & Employment Law Committee Newsletter

Issue: July 2012

Editor: Tim Darby | European Editor: Paul Callaghan | Canada Editor: Gilles Touchette | Asia and Oceania Editor: Ute Krudewagen

China

New Regulations Issued after Occupational Disease Law Is Amended

Andreas Lauffs and Jonathan Isaacs, Baker & McKenzie, China Employment Law Group, Hong Kong/Shanghai/Beijing

Three new regulations implementing the recently amended PRC Occupational Disease Prevention and Control Law1 were issued April 27 by the State Administration of Work Safety. These new regulations provide more specific guidance on employers' obligations in terms of occupational disease prevention and control.

  • The Regulations on Administration of Occupational Health on Working Premises provide that companies may be required to appoint personnel or set up a structure to monitor occupational health issues on a full-time or part-time basis depending on the level of occupational health risk and the number of employees at the company. In addition, these regulations also provide specific guidance on other obligations for employers under the Amended Occupational Disease Law, including (i) frequency of and requirements for the assessment of occupational disease hazards; (ii) requirements for informing employees of the occupational hazards; (iii) requirements to keep occupational health records; and (iv) requirements on reporting of the occupational disease. If the employer fails to fulfill its obligations, it would be subject to fines ranging from RMB 5,000 to RMB 500,000, depending on the actual violations.
  • The Measures on Reporting Projects with Potential Occupational Disease Hazards provide specific procedural and documentary requirements for reporting potential occupational disease hazards related to projects (such as construction projects or other projects that may produce occupational disease hazards listed in the catalogue promulgated by the SAWS). If the employer fails to report in accordance with the measures, it would be subject to fines ranging from RMB 50,000 to RMB 100,000.
  • Finally, the Administrative Measures on Employer Monitoring of Occupational Health clarify the requirements related to occupational health examinations, and the employer's management of the employees' files on occupational health monitoring under the Amended Occupational Disease Law. The measures provide specific requirements on the timing, necessary documents and standards for the occupational health examinations conducted prior to employment, during employment and pre-departure. In addition, the measures also further clarify the content of the employee's occupational disease files. If the employer fails to follow these measures, it could be fined up to RMB300,000, depending on the actual violations. In serious circumstances, the employer could be closed down by the government.

1http://www.americanbar.org/newsletter/groups/labor_law/int_newsletter/ilel_news20121/march2012/1203_int_china03.html.

Regulations Protecting Female Employees Strengthened

Andreas Lauffs and Jonathan Isaacs, Baker & McKenzie, China Employment Law Group, Hong Kong/Shanghai/Beijing

The amended Regulations on the Protection of Female Employees were issued by the State Council April 28, 2012, superseding the previous 1988 regulations.

  • Maternity Leave.The maternity leave period is extended from 90 days to 98 days.
  • Leave Entitlement for Miscarriage. Female employees are entitled to 15 days for miscarriage during the first four months of pregnancy; and 42 days leave for miscarriage after the fourth month of pregnancy.
  • Maternity Stipend and Medical Cost for Childbirth. In the event that the company fails to make maternity social insurance contributions for an employee, the company is liable for paying the maternity leave subsidy and related medical costs itself.
  • Prohibited Work Scope. A more comprehensive and detailed list of prohibited work activities for female employees is provided.
  • Administrative Penalties. Companies that violate the Female Employee Regulations may face several penalties. Specifically, companies would be fined up to RMB 5000 per each affected female employee if the company fails to provide maternity leave entitlement, nursing time off, etc. In addition, if companies arrange for female employees to engage in work prohibited by law, local authorities may order rectification or company closure in serious cases, in addition to a fine of up to RMB 300,000. In contrast, the 1988 Regulations did not specify any administrative fines.

Fourth Draft Opinion on Handling of Employment Disputes Issued by Supreme People's Court

Andreas Lauffs and Jonathan Isaacs, Baker & McKenzie, China Employment Law Group, Hong Kong/Shanghai/Beijing

A fourth draft opinion on the handling of employment disputes was issued by the Supreme People's Court for public comment on June 28. The other three have been already been finalized as official opinions.

  • Under the Draft Opinion, companies would need to more strictly abide by the full employee consultation procedures under the Employment Contract Law when adopting employee handbooks or other company policies directly impacting employee rights and interests. Currently, some courts accept simple publication of employment-related company policies as rendering such policies valid and effective.
  • With respect to noncompete agreements, the Draft Opinion takes a stricter line than many local courts currently do regarding the noncompete compensation requirement; for example, the Draft Opinion provides that if the non-compete agreement does not specify any compensation for the noncompete restriction or if no compensation payment is made within one month of termination of employment, the noncompete restriction would be unenforceable.
  • The Draft Opinion also clarifies that if a company with a union fails to provide written notice to the union prior to unilaterally terminating an employee, the employee may demand double the normal severance amount.
  • The concept of implied consent would be explicitly recognized for the first time in an employment context. Although generally written agreement is required to make any amendment to an employment contract, under the Draft Opinion, if an oral agreement is reached regarding amended terms and the employee continues to work under the amended terms for one year without objection, the amendment would be deemed valid.

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New Dad and Partner Paid Leave Takes Effect in 2013 | Failure to Follow Offer Letter with Promised Written Employment Contract Leads to Court-Ordered Penalty | First Comprehensive Law on Employment of Foreign Nationals Approved | Draft of Restrictions to Labor Dispatch Practices under Labor Contract Law Reviewed | Companies Do Not Have to Offer a Job Outside France to an Employee That Does Not Speak the Language of the Country Concerned | Naming a Folder in a Computer "My File" Is Insufficient to Invoke Employee Privacy Protections | Sexual Harassment Criminal Code Provision Repealed for Vagueness | A Job Saving Plan Cannot Be Cancelled for Lack of Economic Reasons for the Job Reductions | Provident Fund Payments Have Priority in Company Liquidations over Secured Creditors and Other Payments Due to Employees | Expatriates in India Contributing to Social Security Plan in Another Country and Covered by Bilateral Economic Agreement with India Now Recognized as Exempt from Social Security Contributions in India


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