(Draft for comments)
Chapter I. General Provisions
Chapter II. Collective Negotiation
Section I. Contents of collective Negotiation
Section II. Collective Negotiation representatives
Section III. Procedures of collective Negotiation
Chapter III. Collective Contract
Chapter IV. Collective Negotiations and Collective Contract Dispute Handling
Chapter V. Legal Liabilities
Chapter VI. Supplementary Provisions
Chapter I. General Provisions
Article 1: In order to promote harmonious labor relations, to protect the legal rights and interests of employees and companies, and to create standards of a system of collective negotiations and collective contracts, the following regulations are established in accordance with the Labor Law of the People’s Republic of China, the Labor Contract Law of the People’s Republic of China, and the Trade Union Law of the People’s Republic of China.
Article 2: This Regulation is applicable for the enterprises in the administrative jurisdiction of this Province.
Article 3: Enterprises shall establish and improve collective negotiation and collective contract systems
Collective negotiation refers to the equal negotiation between employees and enterprises with regard to remuneration, working time, rest and vacation, work health and safety, vocational training, social insurance and welfare, and other matters.
The collective contract refers to the written agreement established between all employees of enterprises and the enterprises with regard to working conditions, remuneration and other matters. It may be categorized as general collective contract, special collective contract, industrial collective contract and regional collective contract.
Article 4: Employees and enterprises shall follow the principles of mutual respect, fairness, honesty and equal negotiation in the establishment and implementation of collective negotiation and collective contract.
The collective contract established according to the law shall be legally binding for the enterprises and all the employees.
Article 5: Working conditions and remuneration standards described in the labor contract shall not be lower than those described in the collective contract; working conditions and remuneration standards described in the collective contract established in the enterprises shall not be lower than those described in the industrial or regional collective contract in the same areas.
Article 6: Government at all levels shall work to strengthen collective negotiations and collective contracts, in order to comprehensively promote a system of negotiations and collective contracts.
The human resource and social security authorities at the County level or above shall supervise the establishment and implementation of collective contracts according to law, and review the collective contracts.
The local federations of trade unions shall organize, guide and supervise unions in enterprises to conduct collective negotiation, establish and implement collective contracts.
Enterprises’ associations, industrial and commerce associations and other employers’ organizations and business administrative agencies shall guide enterprises to practice social responsibility, direct and assist enterprises in establishing and improving collective negotiation and collective contract systems.
Chapter II.Collective Negotiation
Section I. Contents of Collective Negotiation
Article 7:Employees may undertake collective negotiation and establish a collective contract with enterprises with regard to one or several of the following items:
3.Work holidays and vacation;
4.Occupational health and safety;
5.Social security payment and benefits;
6.Special protection of women workers and minor workers;
7.Rights and protection of temporary agency workers;
8.Vocational education and training;
9.Labor contract management;
10.Rewards and sanctions;
11.Reduction in workforce;
12.Duration of the collective contract;
13.Procedures for the change or termination of the collective contract;
14.Mediation and settlement of disputes in the implementation of the collective contract;
15.Liability for the violation of the collective contract;
16.Other matters that both Parties mutually agree to negotiate;
Article 8: The collective wage negotiation refers to the collective negotiation between employees and enterprises with regard to the pay distribution systems and methods of wage distribution, wage levels in the enterprise, and other items.
Generally, the collective wage negotiation shall be held once a year and both parties may negotiate over one or several of the following items:
1.Wage distribution system and wage standards;
2.Wage payment method and time;
3.Annual total wage and average pay level of employees;
4.Wage rates and methods of adjustment;
5.Allowance and subsidy levels, bonus distribution method;
6.Wage during the probation period, sick leave and leaves of absence;
7.Duration of collective wage contract, procedures for the change and termination of collective wage contract;
8.Condition for the termination of collective wage contract;
9.Liability for the violation of collective wage contract;
10.Other mutually agreed upon wage-related items.
Article 9: The collective wage negotiation shall be in accordance with laws and regulations, taking into consideration the following factors:
1.Labor productivity and economic performance of the enterprise;
2.Total payroll and employees’ average wage level in the enterprise in the preceding year;
3.Wage guideline for enterprises issued by human resource and social security authorities, and labor market wage level;
4.Consumer Price Index for urban residents as issued by local statistics bureaus;
5.Local minimum wage, regional and industrial average wage levels as issued by relevant government authorities;
6.Other matters related to collective wage negotiation.
Article 10: Employees or enterprises may request negotiation on wage adjustment on any of the following occasions:
1.Change in labor productivity or economic performance of the enterprises;
2.Persistent and substantial change in the local Consumer Price Index for urban residents;
3.Change in the wage guidelines as issued by the local government.
Article 11: Industry trade unions and regional trade unions can conduct collective negotiations and sign industrial and regional collective contracts with organizations representing employers, such as employers’ associations, associations of industry and commerce, trade associations, or business associations.
Article 12: The industrial and regional collective contract established according to law shall be legally binding to the enterprises and employees in the same industries and regions.
Article 13: Industry-wide collective negotiation and contracts may be initiated and established with regard to the following matters bearing direct interests of the employees in the industry:
1.Minimum wage standards of the industry;
2.Rate of wage adjustment in the industry;
Performance standards for similar kinds of work in the industry;
3.Occupational health and safety standards for all jobs in the industry;
4.Staff training policies for all jobs in the industry;
5.Special protection of women workers and minor workers, and the protection of temporary agency workers’ rights and interests in the industry;
6.Other matters appropriate to industrial collective negotiation.
Article 14: Regional collective negotiation and contract may be initiated and established with regard to the following matters bearing direct interests of the employees in the region:
1.Minimum wage standards of the region;
2.Rate of wage adjustment of the region;
3.Occupational health and safety standards in the region;
4.Special protection of women workers and minor workers, and the protection of temporary agency workers’ rights and interests in the region.
5.Other matters appropriate to regional collective negotiation.
Section II. Collective Negotiation Representatives
Article 15: The collective negotiation representatives (representatives hereafter) refer to the individuals elected according to legal procedures and authorized with the right to represent the interests of their own Party in the collective negotiation.
Each party shall have 3-9 representatives and appoint a chief representative. Both Parties may also have a certain number of observer representatives.
Article 16: The chief representative for the enterprise shall be the legal representative of the enterprise or any person authorized in written form by the legal representative of the enterprise. Other representatives shall be designated by the legal representative of the enterprise.
In companies with an established trade union, the chief representative for the employees shall be Chairman of the trade union or any person authorized by the Chairman in writing. The rest of the representatives shall be selected either by the trade union or democratically elected by the workers’ congress. In companies without a trade union, or where there is no functioning trade union, the representatives for the employees shall be democratically elected by the employees under the guidance of the local federation of trade unions. The chief representative shall be elected by all the collective negotiation representatives. If, due to exceptional circumstances, the representatives cannot be democratically elected, the representatives and the chief representative shall be selected by the employees under the guidance of the local federation of trade unions. The number of elected representatives may be more than that of representatives participating in the collective negotiation as appropriate to provide alternative candidates when needed.
In enterprises with relatively large numbers of female workers, there shall be an appropriate proportion of female representatives on the employees’ side.
Article 17: In industrial or regional collective negotiation, representatives of the enterprises shall be appointed by the enterprises’ organizations in the industries or regions. The chief representatives shall be the leaders of the enterprises’ organizations. When there are several representative organizations at the industry or the regional level, the chief negotiation representative and other negotiation representatives will be elected through democratic procedures. When there are no representative organizations at the industry or the regional level, companies shall democratically elect chief a negotiation representative and other negotiation enterprises.
The representatives on the employees’ side are selected by the industry level or area trade union. The chief negotiation representative is the chairperson of the industry level or area trade union. When there is no established industrial or area trade union, the local federation of trade unions can assume the task of conducting collective negotiations, or the chief negotiation representative and other negotiation representatives can be democratically elected among enterprise union chairpersons in the industry or regions.
Article 18: The chief representatives of each side may authorize in written form experts from outside the company as their negotiation representatives. The number of authorized representatives shall not exceed 1/3 of negotiation representatives of each party.
The chief representatives shall not be from outside of the company. Company’s negotiation representatives shall not be the employees’ negotiation representative.
Article 19: The dismissal and replacement of representatives shall follow the same procedures as the appointment of representatives. The representatives of the opposite Party shall be informed in written form.
When enterprise unions do not fulfill their responsibilities according to the law, the local trade union shall order the enterprise union to correct its behavior. When enterprise union chairpersons do not represent employees in fulfilling their responsibilities of conducting collective negotiations or have difficulties in fulfilling such tasks, on the demand of more than one third of employees or representatives of the employees’ representative congress to change the employees’ chief negotiation representatives in collective negotiations, the local trade union shall guide the employees to hold an employees’ representative congress and re-elect the chief representatives.
Article 20: The representatives’ term of office shall be determined by the Party being represented. In the absence of other specific stipulations, the term shall end when the collective contract agreed upon through collective negotiation expires. When the collective negotiation does not result in an agreement or a collective contract is not signed, the term ends with the end of the collective negotiation.
Article 21: During the representatives’ term of office, the enterprises shall not unilaterally change their posts, discharge or demote them, deduct their wages or welfare.
In the case that the labour contract of the representatives expires during their term of office, it shall be extended until the termination of the term of office. Except under the conditions cited in Article 39 of the Labor Contract Law of the People’s Republic of China, the company shall not terminate labor contracts of negotiation representatives during the period they perform their duties.
Article 22: The responsibilities of the representatives include:
1.To participate in the collective negotiation meetings;
2.To collect, keep and provide the materials and documents related to the collective negotiation;
3.To listen and collect opinions, and to accept questions from the individuals of the party they represent;
4.To represent their party in the settlement of labour contract disputes;
5.Others as described by the laws and regulations.
Article 23: Negotiation representatives have the right to request documents related to subjects of negotiation, including registration information, constitutions, financial and accounting reports, work performance standards, payment of wages, tax and social insurance fees. However, materials involving national security or technology secrets are excluded.
Negotiation representatives shall keep confidential any business secrets of the company, of which they have obtained knowledge during the course of collective negotiations.
Article 24: The enterprises shall allow the necessary working conditions and time for the representatives to perform their duties.
The representatives’ participation in the collective negotiation and their due preparation for the collective negotiation shall be regarded as normal work, and their wages and welfare shall not be affected.
Section III. Procedures of Collective Negotiation
Article 25: Employees and the company have the right to request that negotiations be conducted.
When employees or the company request negotiations in written form, the other side must provide a written response within 20 days, providing specific comments to each of the topics. The bargaining proposal must include time, place and content of negotiations.
Article 26: The trade union delegates of a company can request the company to enter into collective negotiations.
Employees may direct their request for collective negotiations to the company trade union. The company trade union shall decide the concrete content and timeframe of negotiations according to the suggestions of the employees and propose collective negotiations to the company; if more than one third of the employees or the trade union delegates request negotiations, the trade union must propose collective negotiations to the company.
If a properly functioning trade union does not exist in the company, the upper-level trade union can advance the employees’ request to the employer. If more than one third of the employees or the trade union delegates request negotiations, the upper-level trade union must propose negotiations to the employer.
Article 27: Collective negotiations must be started not later than 60 days after the request for negotiations has been formally issued. Under exceptional circumstances both parties can agree to extend this term by 15 days.
Article 28: Collective negotiations are normally conducted by direct consultations. By mutual agreement, negotiations can also be conducted in written or by other methods.
Article 29: When collective negotiations are conducted by direct consultation, the chief delegates of both parties chair the negotiations by turns or jointly, or upon mutual agreement, both parties may also determine a third-party chairperson.
The minutes of collective negotiation meetings shall be signed and confirmed by all the representatives present.
Article 30: During the collective negotiation, the enterprises shall not:
1. Refuse or purposefully delay collective negotiations;
2. Restrict or interfere with activities of the employees’ delegates, or refuse to permit employees to perform the duties of negotiation delegates;
3. Deny or impede an employees’ access to the workplace, refuse to provide tools or other means of work to employees;
4. Restrict or interfere with trade union activities;
5. Refuse to provide data necessary for collective negotiations or provide false information;
6. Violate, arbitrarily change, or terminate employee delegates’ labor contracts;
7. Refuse to carry out arbitration;
8. Other hostile actions
9. The enterprises are prohibited from threatening, intimidating, cajoling, restricting personal freedom, bullying or assaulting the representatives for the side of employees.
Article 31: During times of collective negotiations the employees must not engage in the following activities:
1. Work stoppages or slow-downs which impede the orderly conduct of negotiations or intended to change or re-open existing collective contracts during the time of their duration;
2. produce and arbitrarily disseminate false information, and incite, organize, provoke, assemble, intimidate, or force other employees to participate in a work stoppage or slow-down;
3. destroy the company’s equipment or tools, or interrupt and block the company’s regular production procedures;
4. block, bar or seal off access to the company’s premises, obstruct employees, raw and semi-finished materials, and merchandise from entering or exiting the company’s premises;
5. threaten, intimidate or bribe the other party’s negotiation representatives;
6. restrict the personal liberty of management representatives and insult, intimidate, threaten or physically harm management personnel;
7. interfere with, petition against, or direct work stoppages against mediation procedures agreed upon by both parties;
8. other offensive activities.
In accordance with the Labor Contract Law the company can terminate the labor contracts of employees who engage in aforementioned behavior, seriously violate company regulations, seriously neglect work duties, practice graft, or otherwise create major harm or damage to the company.
Article 32: The company must pay employees their regular wages and salaries when they engage in their legal duties as negotiation delegates or take part in negotiation during regular working hours.
The enterprise shall not pay the wages for the employees participating in work stoppage or sabotage during the collective negotiation.
Article 33: When agreement is reached in collective negotiation, the chief delegates of both parties will sign the draft collective agreement. When consent cannot be reached or previously unanticipated issues arise during the process of negotiation, the two parties can agree to suspend negotiations. The two parties must determine the duration of the suspension, and the time, location and content for resuming negotiation.
Article 34: When a work stoppage or slowdown occurs in a company, the trade union should represent the employees vis-a-vis the company or other concerned parties, reflecting the opinions and demands of the employees and putting forward suggestions to solve the conflict. Reasonable demands on the part of the employees should be accepted by the company. The trade unions shall assist the enterprises in restoring production and work order.
Chapter III Collective Contract
Article 35: Mutually-agreed upon draft collective contracts shall be discussed by the employees’ representative congress. Negotiation representatives on the employees’ side shall report to the employee’s representative congress on the process of negotiation and the content of the draft collective contract.
When the draft collective contract is discussed at the congress of employee representatives, more than two thirds of employees must be present. The draft is considered ratified with the consent of more than half of employees present.
The industrial or regional collective contract draft may be passed based on the deliberation or vote of the industrial or regional employees’ congress or other democratic procedures.
When the collective contract draft is not passed, representatives of both parties shall resume the negotiation and revise the draft.
Article 36: Once the collective contract draft has been ratified, it shall be signed by the chief representatives of negotiation parties.
Article 37: After a collective contract has been signed, the company shall submit three copies of the collective contract and explanations of the text to the Human Resource and Social Security bureau within 10 days. The following documents shall also be submitted:
1.The collective contract signed by the chief negotiation representatives of both parties;
2.Proof of the legal qualifications of the negotiation representatives of both parties;
3.Minutes of the collective negotiation meetings;
4.Resolutions of the employees’ congress with regard to the deliberation and adoption of the collective contract draft;
5.Other materials as the human resource and social security authorities may deem necessary to submit;
Article 38: The human resource and social security authorities shall check the collective contract submitted, to verify the legitimacy of the following items:
1.Whether the negotiation representatives meet the qualifications according to laws, regulations and provisions;
2.Whether the negotiation representatives meet the qualifications according to laws, regulations and provisions;
3.Whether the content of collective contract violates legal regulations.
Article 39: The collective contract comes into effect if the human resource and social security authorities have no objection within 15 days after receipt of the contract.
If the Human Resource and Social Security department rejects the collective contract, the signing parties shall, within 15 days, revise or provide further explanations regarding the clauses rejected by the Human Resource and Social Security department. The revision or explanation shall be resubmitted to the Human Resource and Social Security department for review.
The company shall make the collective contract available to all employees within 10 days after the collective contract begins to take effect, and inform the local trade union.
Article 40: The collective contract shall be implemented by both parties, and the supervision and regular inspection systems shall be established accordingly.
Article 41: The term of the collective contract may be from one to three years. Collective contracts automatically end on the expiration date or when mutually-agreed conditions of termination occur.
The term of the collective contract may be from one to three years. Collective contracts automatically end on the expiration date or when mutually-agreed conditions of termination occur.
Article 42: The collective contract remains effective if during the term of collective contract the company changes its name, legal representative, principal etc.
Article 43: The collective contract may be changed or terminated under one of the following conditions:
1. If it is agreed by both Parties;
2. A part of or the collective contract cannot be fulfilled due to force majeure;
3. The company is bankrupt, out of operation, split up, or taken over, so that the collective contract cannot be fulfilled;
D. Other situations according to laws and regulations.
Article 44: If one side of the collective contract requests negotiations regarding the fulfillment or change of the collective contract, the other side shall reply. Within seven days both parties shall begin negotiations.
Article 45: Changes or termination of a collective contract shall be mutually agreed upon through negotiation.
Changes or termination of a collective contract shall follow the procedures of collective negotiations and of signing a collective contract, as stipulated in this regulation.
Chapter IV Settlement of Collect Negotiation and Collective Contract Disputes
Article 46: If disputes occur during collective negotiations and the two parties cannot continue negotiations or reach agreement, the human resource and social security authorities, the relevant government departments in charge of enterprises and the government departments with jurisdiction over the disputed items together with local trade unions and employers’ associations shall make a timely intervention to guide and regulate the company and employees to continue negotiations. Said parties shall also assist the company to keep normal production order, prevent intensification of the conflict, and maintain the harmony and stability of labor relations.
Article 47: If the two parties cannot reach an agreement, and remain in disputes over the collective negotiations, the parties can apply for mediation or conciliation in written form to the local human resource and social security authorities.
Article 48: The human resource and social security authorities shall make the decision to mediate or not within 10 working days on the receipt of the mediation request.
If the human resource and social security authorities decide to conduct mediation, it shall organize tripartite labor relations actors - such as local trade unions and employers’ associations at the same level - in a timely manner, in order to appoint staff to conduct mediation from the group of collective negotiation mediators. People’s governments at all levels shall set up a group of collective negotiation mediators who can take charge of mediating collective negotiation-related disputes. Necessary expenditures of the group shall be included in the financial budget of the same level. Mediators, while conducting mediations, have the right to enter the workplace, to consult with the company, trade union, and employees about conditions regarding collective negotiations, and to conduct mediations. Relevant units and individuals shall cooperate and provide proper information.
The mediation of collective negotiation disputes shall be concluded within 30 days; the term of mediation may be extended as appropriate for no more than 15 days.
Article 49: After reaching agreement through mediation, the mediators will draft the mediation agreement for collective negotiation.
The mediation agreement for collective negotiation shall state the content of negotiations and its period of validity. The agreement takes effect after the chief negotiation representatives and negotiation representatives of both sides sign it. The company and employees most obey and execute the mediation agreement for collective negotiation during the period of validity.
Article 50: Before the mediation, or the mediation does not reach any agreement, the enterprises and the employees may jointly lodge the conciliation request to the local human resource and social security authorities. The request shall be made together with the written pledge to accept and implement the decisions of the conciliation committees.
Article 51: The human resource and social security authorities shall start the conciliation within five working days on receipt of the conciliation request and written pledge.
The human resource and social security authorities shall establish a conciliation committee for collective negotiation-related disputes and complete conciliation within 30 days. The committee shall include the following members:
1. One conciliator appointed by the company and employees respectively. Conciliators are selected by the company and employees from the pool of conciliators for collective negotiation-related disputes.
2. A chief conciliation facilitator assigned by the human resource and social security authorities.
If the company or employees fail to submit the name lists of the appointed conciliators within the time stipulated by the human resource and social security authorities, the human resource and social security authorities may appoint conciliators from the pool..
The government at various levels shall set up a pool of the conciliation facilitators for collective negotiation disputes and disclose to the public the personal information of those facilitators. The pool shall include the personnel from the human resource and social security authorities, personnel recommended by the enterprises’ organizations and the trade unions, and personnel recognized as possessing social reputation and public trust, familiar with the handling of labor relations, and equipped with relevant expertise.
The government at various levels shall subsidize the conciliation facilitators for their work and pay the necessary expenses. The selection, responsibilities, work procedures, subsidies, and code of conduct of the facilitators shall be regulated by the Provincial government.
Article 52: The conciliation committee shall investigate and understand the basic conditions of the negotiation representatives in collective wage negotiations, the production and operation of the company, wage levels of employees, the opinions of both parties and other matters The company and employees shall follow the requests of the conciliators to provide accurate information.
Article 53: When agreement is reached through conciliation, both parties shall sign the collective contract according to the law, or revise company rules according to the law and decide or change labor contracts and other items.
If no agreement can be achieved between the parties through conciliation, the collective negotiation conciliation committee shall draft a conciliation agreement within 60 days after receiving the application for conciliation, and present the agreement to both parties. The agreement shall state the period of execution and shall be publicized. The negotiation representatives shall inform employees about the content of the conciliation agreement.
Article 54: When state-owned or state holding enterprises conduct collective negotiations with employees, the upper-level unit in charge shall handle the dispute if both parties cannot reach agreement through negotiations. If this process fails and the dispute case enters the procedures of mediation and conciliation, the unit in charge shall assist the human resource and social security authorities and the conciliation committee to conduct mediation and conciliation.
Article 55: For disputes pertaining to the enforcement of the collective contract, trade unions can apply for arbitration or appeal to a court according to the law, if mediation fails.
Chapter V Legal Liabilities
Article 56: If strikes or lockouts occur in public enterprises and institutions, such as water, electricity, gas, public transportation, broadcasting and communication, public sanitation, and hospitals, and related companies, which cause or may cause one of the following consequences, local people’s government departments can announce a cooling-off order according to actual situation, order the company or employees to stop the action, and restore normal order:
1) Harming public security;
2) Undermining the normal social and economic order and the order of residents’ life;
3) Other consequences that seriously threaten public interests.
The local human resource and social security authorities, authorities in charge of the enterprises at the next higher level, local federations of trade unions, and the enterprises’ organizations guides both Parties to conduct collect negotiation and resolve the disputes.
Relevant units and individuals, if refusing to follow the cooling-off order of the local People’s Government and violating public security management regulations, can be punished by police departments.
Article 57: If a company violates Article 25 of this regulation, local trade unions at county level and above have the rights to request the company to correct its behavior and to give notice about the company’s behavior to the public.
Article 58: If a company violates Articles 30, 48 of this regulation, People’s Governments at the county level and above shall order corrections within a determined period of time.
Article 59: If a company violates Article 25 of this regulation, if strikes or slow-downs occur because the company does not reply within the stipulated period of time or refuses negotiation without just cause, the company shall not terminate employees’ labor contracts in cases of employees’ serious violation of enterprise rules; if an employee requests to terminate their individual labor contract, the company shall pay economic compensation according to the law.
Article 60: If a company violates Article 30 or an employee violates Article 31 and disobeys public security management regulations, the police department will handle the case according to the law. If crimes have been committed, the violators should be investigated for criminal responsibility according to the law. Employees who agitate, organize, incite, or congregate others to disturb the normal production and operation of the company shall be punished according to Article 23 of the Law of Public Security Administrative Punishments.
Article 61: If officers of relevant government departments and trade union staff in carrying out administrative tasks regarding collective negotiations are derelict in their duties, abuse their power, or commit irregularities for personal interests, the departments in charge shall punish them; if crimes have been committed, the violators should be investigated for criminal responsibility according to the law.
Chapter VI Supplementary Provisions
Article 62: When the branch of a company, with consent from the legal representative of the company, conducts collective negotiation, signs and implements a collective contract with employees in the branch, this regulation shall be followed.
Institutions and privately owned non-enterprises which implement enterprise-style management shall observe this regulation.
Article 63: This regulation shall go into effect as of … , and the Guangdong Province Provisions on Enterprise Collective Contracts promulgated by the 22nd meeting of the Standing Committee of 8th Guangdong Province People’s Congress on June 1, 1996 shall be abolished simultaneously.