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Regulations
of Shenzhen Special Economic Zone on Laborers
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(Originally
adopted at the 16th Meeting of the Standing Committee
of the first Municipal People' s Congress of Shenzhen on May 28th,
1993. Firstly revised according to the "Decision on
Modifying the ' Regulations of
Shenzhen Special Economic Zone on Laborers'
"
at the 21st Meeting of the Standing Committee
of the first Municipal People' s Congress of Shenzhen on March
1st, 1994. Secondly revised according to the "Decision on
Modifying the 'Regulations of the Shenzhen Special
Economic Zone on laborers' " at the 20th
Meeting of the Standing Committee of the second Municipal
People' s Congress of Shenzhen on February
13rd, 1998.)
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Chapter
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General Provisions
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Article
1 These regulations are formulated
in order to protect the lawful rights and interests of laborers
and employing units, standardize the employment conducts of
employing units, and promote the development of economy
of
Shenzhen Special Economic zone (hereinafter referred to as
"Special Zone" ).
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Article
2 "Laborers" mentioned in
these regulations are referred to the persons enrolled by an
employing
unit, who have no registered permanent residence of
Shenzhen Municipality.
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"Employing
units" mentioned in these regulations are referred to
enterprises, institutions, official
organs, social organizations
and individual businesses which employ workers in Shenzhen
Municipality.
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Article
3 Employing units shall conclude
the labor contracts with laborers in employing. The contracts
shall
be concluded in written forms. The parties shall abide by
the provisions of laws and regulations and the principles
of
voluntariness, equality, and consistency on basis of
negotiation.
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Article
4 Employers shall not take
discriminative treatments to the laborers on remuneration,
working time
and other labor conditions since they have no
registered permanent residence of Shenzhen Municipality.
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Article
5 Laborers are entitled to take
part in or organize labor union according to the provisions of
the
"Labor Union Law of the People' s Republic of China" .
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Article
6 The personal rights and other
lawful rights and interests of laborers shall be protected by
laws, and
shall not be infringed upon by any organizations or individuals.
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Article
7 Employing units and laborers
shall strictly abide by laws, rules and regulations on labor
protection,
labor safety and health.
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Employing
units shall strengthen on the special labor protection for
workwomen and juvenile workers
who have reached the age of 16
but under the age of 18.
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Article
8 The recruitment of child workers
who have not reached the age of 16 shall be prohibited.
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Article
9 Labor administration departments
of Municipal People' s Government or District People' s
Government
of Shenzhen (hereinafter
referred to the labor administration departments) shall be in
charge of the implementation
and supervision of these
regulations.
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Chapter
¢ò
Qualifications and Procedures
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of
Laborer Recruitment
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Article
10 Employing units shall, while
recruiting laborers, be qualified with all kinds of
qualifications
on labor protection, safety and health in
production provisioned in laws or regulations, and shall have
capability of paying remuneration and providing social insurance
and welfare on schedule.
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Article
11 Employing units shall provide
necessary living and health conditions for laborers. The
collective
dormitories of laborers shall be offered in
accordance with relevant provisions on safety management, and
the average area of residence shall not less than 2 square
meters.
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Article
12 A laborer shall be qualified
with the following conditions: being 16 years of age or older,
being
healthy, having a degree of minor middle school and a good
expression, otherwise provided, if any, in laws and regulations.
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Article
13 Employing units shall not
recruit a person who has concluded a labor contract with other
employing
unit and hereafter left his post without permission.
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Laborers
who have rescinded the contract and borne the responsibilities
for breach of contract shall
nor be subject to the preceding
paragraph.
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Any
laborer who violates the first paragraph shall be fired at once.
Any employing unit who commits
intentional recruitment of the
person left his post without permission, which causes losses to
the former employing unit, shall bear the joint liability for
compensation with the laborer.
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Article
14 Employing units shall, before
the recruitment of laborers, submit an application to the labor
administration
departments, explaining the recruitment excuse,
the amount and district of recruitment.
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The
labor administration departments shall reply in 15 days after
receiving the application. If
the time limit for making response
is not met, the application shall be deemed to have been
approved,
and the labor administration departments shall conduct
relevant procedures of recruitment .
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Any
employing unit, who recruits laborers unapprovedly in violation
of the first paragraph, shall
be ordered to make correction in
limited time by the labor departments and be imposed a fine of
the amount of 100 yuan per person a month according to the
number the the persons recruited unapprovedly. If the
term of
recruitment is less than a month, it shall be accounted as one
month. ªª
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Article
15 An employing unit shall,
after approved for recruitment by the labor administrative
departments, conclude
labor contracts with the laborers before
they take their posts. The contracts shall be concluded in
advance, if a train or a tryout is necessary.ªª
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Article
16 Employing units shall, within
20 days after the conclusion of the labor contracts, conduct the
employment procedures in the labor administrative departments
and the procedures of transient residence in the public
security
departments.
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Any
employing unit who do not conduct the employment procedures in
violation of the former paragraph
shall be ordered to rearrange
in limited time and be imposed a fine of 100 yuan per month
according
to the number of persons. If the term of recruitment
is less than a month, it shall be accounted as one month. Any
employing unit who fails to conduct the procedures for transient
residence shall be dealt with
by the public security departments
according to relevant provisions.
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Article
17 An employing unit shall not
charge for enrollment or take cash deposit in recruitment, and
shall
not, in the process of the performance of the labor
contracts, transfer the responsibility that he should bear of
paying social insurance premium to the laborers and force the
laborers to invest to the employing
unit.
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Any
employing unit, who has charged for enrollment or take cash
deposit in recruitment in violation
of the first paragraph,
shall return the money he charged and be imposed a fine of an
amount three
times than he charged. Any employing unit, who have
transferred the responsibility that he should bear of paying
social insurance premium to the laborers and forced the laborers
to invest to the employing unit,
shall be ordered to return the
money that he charged and be imposed a fine of an amount two
times
than the total amount of the transfer and investment.
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Article
18 The labor administrative
departments and their staff shall, during the process of
assigning the
index of recruitment or conducting the employment
procedures, perform their duties strictly pursuant to law, and
never abuse their authorities for personal gains.
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In
case of violating the former paragraph, the persons direct
liable and the liable persons in charge
shall be subject to
administrative responsibilities. If there are losses caused to
employing units
or employees, the labor administrative
departments shall be liable for compensation. And if it
constitutes a crime, relevant liable persons shall be prosecuted
for criminal responsibilities by the judicial bodies
according
to law.
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Chapter
¢ó
Labor Contracts
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Article
19 The labor contracts shall
contain following items:
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(1)work
(production) tasks of laborers,
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(2)time
limit of labor contracts,
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(3)labor
condition,
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(4)labor
discipline,
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(5)remuneration,
and mode and date of payment,
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(6)social
insurance, labor welfare and necessary living condition,
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(7)liability
for breach of contracts, and
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(8)other
terms agreed by parties.
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Article
20 Labor contracts must be
performed thoroughly by both parties as soon as they are
concluded according
to laws, and neither party may modify or
rescind contracts unilaterally.
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When
one party do not perform according to the provision of
contracts, the other party is entitled
to request it to perform
or liable for damage.
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Article
21 The parties may modify or
rescind contracts on basis of consistency after negotiation.
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Article
22 The labor contracts shall be
terminated at the expiration of the term of the contracts.
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Employers
shall conclude labor contracts before the expiration of the term
of contracts and conduct
the employing procedure according to
the former clause, if they continue to employ the laborers.
Employers shall be treated according to the provision of
16(2), if they do not conduct the employing procedure
accordingly.
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Article23
Laborers
may note employers to rescind labor contract at any time under
any of the following circumstances:
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(1)in
the term of tryout
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(2)laborers
are compelled to work by the means of violence, menace and other
methods restricting
people' s freedom,
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(3)employers
do not pay remuneration or supply labor condition according to
the contract,and
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(4)other
circumstance of laws or regulations.
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Laborers
shall note employers in writing 30 days in advance if they have
good reasons to rescind
the contracts.
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Laborers
shall liable for damage if they rescind the contract
unilaterally in violation of the provision
of 23(2) and which
cause loss to employers.
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Article
24 Employers may rescind the
contracts at any time under any of the following circumstances,
but shall
send the decision on rescinding contracts in written
form to laborers themselves:
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(1)laborers
are not testified in compliance with the recruitment condition
in term of tryout,
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2)laborers
violate the labor discipline and rule of employers, which
affecting the work
or production,
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(3)laborers
who neglect their posts and commits fraudulent acts for personal
gains, and which cause
great loss to employers,
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(4)laborers
are investigated criminal liability according to laws, and
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(5)other
circumstance of laws or regulations.
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Article
25 Employers may rescind the
contracts under any of the following circumstances, but shall
note laborers
themselves in written form 30 days in advance:
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(1)laborers
can not engage in the former task or other tasks arranged by
employers after the expiration
of the term of medical treatment,
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(2)laborer
who is incompetent to his post can not satisfy the needs of his
post yet after training
or the adjusting of the post,
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(3)the
contract can not be performed because there are great changes in
the objective condition
when the contract is concluded, and
parties to the contract can not agree on the modifying of the
contract after negotiation.
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Employers
shall pay compensate money of one month average wage of the year
if they do not note the
laborers in writing thirty days in
advance.
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Article
26 The labor contract shall
rescind automatically under any of the following circumstances:
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(1)
employers are declared bankrupt,
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(2)
employers are rescinded or revoked according to laws,
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(3)
the death of employees, and
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(4)
other circumstance of laws or regulations.
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Article
27 Employers shall not rescind the
labor contracts under any of the following circumstances:
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(1)employee
is ill or injured on business and in the stipulated term of
medical treatment,
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(2)employees
who are testified to be in need of treatment or recuperation
because they are injured
for business or professional ill are
established to be competent to their post by the medical and
labor identification committee of shenzhen municipality and in
the term of the contract,
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(3)in
the term of pregnancy, procreation and lactation of workwoman,
and
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(4)other
circumstance of laws or regulations.
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Article
28 If one of the following
circumstances occurs, an employing unit shall pay economic
indemnity to
the laborers:
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(1)
After advanced by the employing unit, the contract is rescinded
through consultation and with
the agreement of both parties;
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(2)
The contract is rescinded according to item(2),(3),(4) of
Article 23 of these regulations;
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(3)
The contract is rescinded according to Article 25 of these
regulations.
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The
standard of paying the economic indemnity shall be calculated
based on a laborer' s continuous
service life in certain unit:
one monthly-wage shall be paid to the laborer, if his service
life
expires one year; The standard of the former shall be
taken, if a laborer' s service life expires half of one year
but is not up to one year; Half of monthly average salary shall
be paid, if a laborer' s service
life is less than half of one
year. In the case that the contract is rescinded according to
item
(2),(3),(4) of paragraph one of Article 25 and item (1) of
paragraph one of Article 28, the sum of economic indemnity
shall
not exceed total amount of twelve monthly-wage.
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Monthly-wage
mentioned in the preceding paragraph is calculated as the
laborer' s monthly average
salary of three months wages before
rescission of the contract.
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Article
29 A contract is invalid under any
of the following circumstances:
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(1)
Violating laws and regulations;
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(2)
A contract is concluded by means of fraud or coercion.
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An
invalid contract does not have legal binding force from the
outset.
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Invalidity
of a contract shall be confirmed by the Labor Dispute
Arbitration Committee or the People'
s Count.
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Article
30 If
a
part of a labor contract becomes invalid without affecting the
validity of the other parts, the
other parts remain valid.
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Article
31 If
a labor contract is confirmed invalid, the party at fault shall
compensation the other part for
the loss caused by the fault. If
both parties have faults, they shall bear their respective
responsibilities.
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Chapter
¢ô
Working Time and Vacation
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Article
32 The
normal working time of laborers shall not exceed eight hours a
day, and not exceed forty
hours a week. One day of vacation shall be guaranteed. The
normal working time of the laborers
who undertake poisonous and
harmful operation or strenuous manual labor shall accordingly be
shortened.
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If
a employing unit cannot implement the provisions of the
preceding paragraph because of its character
in product, it
shall, after approved by labor departments, implement other
working and vacation
measures such as working value of
indeterminate period of time, or working value of synthetically
accounting period of time.
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Article
33 An
employing unit may, after consultation with the Union and
laborers, prolong working time due
to the need of production and
operation, but the prolonged time shall not exceed three hours.
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Any
employing unit, which violated the provisions of
preceding paragraph, shall be ordered to make correction
and may be, according to the number of laborers whose working
time has been prolonged, imposed a fine of ten yuan per hour for
each laborer.
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Article
34 Laborers
shall enjoy the following treatments in vacation:
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(1)
Statutory holidays provided by the State are holidays with
salary. It shall be subject to postponement
and an additional
holiday in case that a holiday happens to be a public holiday.
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(2)
The vacations for marriage or the bereft are three days in the
event of a laborer' s marriage
or death of his spouse or lineal
kinship. The vacations for late marriage shall be handled
according
to relevant provisions, during which salary shall be
issued as usual;
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(3)
Maternity leave shall be carried out according to relevant
provisions, during which salary shall
be issued as usual;
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(4)
Laborers, whose continuous working time expire one year, shall
enjoy annual leave with pay.
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Article
35
If a laborer suffers a disease or an injury which is not related
with work, the idle time limit
for medical treatment shall be
confirmed according to his service life in an unit. If his
service
life not expires one year, the time limit shall add up
to fifteen days; if it expires one year, the time limit shall,
from the second year, be added fifteen days
every year, but shall not exceed ninety days.
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During
the period of medical treatment, the employing unit shall pay to
the laborers their salaries
of disease or injury leave according
to provisions.
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Chapter
¢õ
Labor Payment and Social Insurance
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Article
36 Wage
of a laborer shall be fixed by the employing unit according to
the laborer' s post, technique
standard and his working
performance ect and through consultation with the laborer
himself, but
shall not be lower than the local standards of
minimum wages publicized by the People' s Government of
Shenzhen Municipality.
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If
wages to be paid to the laborers are lower than the municipal
standards of minimum wages, the
employing units shall make up
the exact amount which is less than the standards, and shall
make
compensation to the laborers as the amount of 1% of the
part lower than the standards for each day.
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Article
37 The
employing
units shall, at regular intervals, pay wages at least once per
month.
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An
employing unit, who embezzles or disguised embezzles the wages
to be paid to laborers and refuses
to pay the overtime payment
of the laborers, shall not only pay the full remunerations to
the laborers
in specified time, but also disburse the economic
indemnity of the mount of 25%of the remunerations.
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Article
38 Under
any of the following circumstances, the employing unit shall pay
laborers remunerations according
to the following standards:
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(1)
To pay no less than 150% of the normal wages if an extension of
working hours is
arranged;
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(2)
To pay no less than 200% of the normal wages if work is arranged
on off days and no make-up
days can be arranged; or
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(3)
To pay no less than 300% of the normal wages if work is arranged
on statutory holidays.
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If
an employing unit arranges overtime work to the laborers who
work on basis of piecework
after they have finished their work, he shall separately pay to
the laborers, according
to the principals stipulated above, no
less than 150%, 200% or 300% of unit-price of piecework made in
their statutory working time.
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In
the event of the work system with integrative computation of
work hours carried out after approved
by the labor departments,
the part of integrative computation of work hours that exceeds
the normal
work time shall be considered as prolonged work time,
the wages of which shall be paid according to the provisions
of
the first paragraph.
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Provisions
stipulated above shall not applied to the laborers working at
irregular time.
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If
the laborers' wages paid by an employing unit are lower than
the standards stipulated in paragraph
1,2 and 3, the employing
unit shall make up the deficiency, and moreover, pay economic
indemnity
as much as 25% of the part lower than the standards.
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Article
39 The
employing unit shall pay allowance for idle time to the laborers
in the case of discontinuing
working.
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Article
40 The
working units and the laborers are, according to provisions,
obliged to take part in social
insurance and pay insurance
premium at specified time.
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Article
41
If a laborer is injured, crippled or dead due to work, the
municipal social insurance departments
shall pay medical
expenses and indemnity for him according to provisions. In case
the laborer has
not taken part in employment injury insurance,
the employing unit shall pay medical expenses and indemnity for
him according to the standards of the employment injury
insurance provisions of Shenzhen Municipality,
pay insurance
premium in arrears of the current year and hand in overdue fine
according to provisions.
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Article
42 If
a laborer dies due to work or without work-related reason, the
municipal social insurance departments
shall pay the funeral
subsidies and survivor' s pensions forhim according to
provisions. In case
the laborer has not taken part in insurance,
the employing unit shall pay the expenses according to state
provisions.
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Chapter
¢ö Occupational
Safety and Health
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Article
43 Laborers
to be engaged in specialized operations shall take their posts
depending on the "Operating
Certificate for Controllers of
Special Operation" that he has obtained according to law.
Laborers to be engaged in technique operations shall take
their posts depending on the "Technique Graded Certificate"
and " Technician' s Qualification Certificate" that he has
obtained according to law.
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The
employing unit who violates the provisions of the first or
second paragraph shall be ordered
to make correction; if he
refuses to correct, a fine of not less than 5,000 yuan but not
more than
10,000 yuan shall be imposed on him.
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Article
44 It
is prohibited to arrange for juvenile workers to engage in work
that is too heavy, poisonous
or harmful or dangerous operations.
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Article
45
The employing unit who violates the provisions of preceding paragraph shall be ordered to make correction and
imposed a fine of not less than 5,000 yuan but not more
than
10,000 yuan.
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Article
45 Employing
units shall provide preemployment physical examinations and
regular on-the-post occupational
physical examinations to the
laborers who undertake poisonous or harmful operations, and set
up
physical records.
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Employing
units shall bear the expenses for examinations provided in the
preceding paragraph.
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Article
46 If an employing unit finds
there are laborers suffer occupational poisoning or occupational
diseases, he is obliged to
report in time according to the
provisions concerning occupational poisoning and report of
occupational
disease prescribed in laws and regulations, to
receive accident investigation and disposal made by relevant
departments. Active treatment and careful and skillful
arrangement shall be provided to the laborers
who suffer
occupational poisoning and diseases.
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Article
47 If there are laborers injuries
or dies during working, the employing unit shall immediately
organize
to rescue, repot the accident circumstances according
to the provisions concerning accident report and disposal
of
employees' casualty prescribed in laws and regulations, and
receive accident investigation
and disposal made by relevant
departments. The employing unit shall not destroy accident scene
and shall not conceal, misstate or delay to report.
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Chapter
¢÷
Labor Supervision and Settlement of Labor Dispute
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Article
48 The two or more than two labor
supervisors appointed by the labor departments have, by their
valid
certificates, the right to transfer and consult the
relevant data of labor employment from an employing unit, to
enquire related information and to enter into scenes of an
employing unit to inspect. The employing
unit shall bear the
responsibility of cooperation and shall not make obstruction.
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If
an employing unit, in violation of the preceding paragraph,
obstructs or refuses the supervisors
from perform their duties,
and resorts to violence or threats, the personnel held directly
responsible
shall be punished by the public security departments
in accordance with the provisions of the "Regulations
of the People' s Republic of China
on Administrative Penalties for Public Security" ;
if a
crime is constituted, he shall be prosecuted for criminal liability.
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Article
49 In
case the labor departments impose a fine to a party, they shall
issue the "Notice of the Fine"
. The party shall hand over
the fine within 15 days from receiving the notice. The labor
departments
shall draw up to the party the receipt for fine
unified printed by the financial departments. Unless otherwise
prescribed by laws and rules, the penalty charges shall be
entirely turned in to the financial departments
of the same
level.
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Article
50 Any of the parties, who
dissatisfy with the penalty decision made by the municipal or
district labor
departments, may separately apply review to the
municipal labor departments or the administrative organs for
review of the People' s Government of Shenzhen, also may bring
a suit before the People' s Court.
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Where
the punished employing unit neither applies to review or
initiates a suit before the people's
court, nor implement the
reconsideration decision within the time limit, the
administrative
organs for review shall apply to the
people's court for compulsory execution.
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Article
51 The labor departments and their
staff shall strictly abide by law, and shall not abuse their
authorities
or abuse power for personal gains during supervising
the implementation of these regulations.
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While
violating the preceding paragraph, the leading officials who are
held responsibilities and
the personnel who bear direct
responsibilities shall be held for administrative
responsibility;
if losses have caused to the employing units,
the labor departments shall held responsibility for
compensation; if the act constitutes a criminal, relevant
persons who are held responsibility shall be prosecuted
for the
criminal responsibilities by the judicial bodies according to
law.
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Article
52 If a labor
dispute between the employing unit and a laborer arises, the
parties may apply to the labor
dispute mediation committee of
their unit for mediation. If the mediation fails or any of the
parties
is unwilling to mediate, any party may apply to the
labor dispute arbitration committee who has jurisdiction for
arbitration. If any party is not satisfied with the decision of
arbitration, the party may bring
a lawsuit to the People' s
Court.
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Chapter
¢ø
Supplementary Provisions
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Article
53 These regulations shall not be
applicable to residents of Hongkong, Macao, Taiwan and foreign
citizens
who take up occupations in Special Zone.
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Article
54 The People' s Government of
Shenzhen Municipality may formulate detailed rules according to
these
regulations.
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Article 55 These
regulations shall become effective as of October 1st,1993. |
