Regulation of Shanghai Municipality on Collective Contracts

 2018-05-23  72


Regulation of Shanghai Municipality on Collective Contracts


· Area of Law: Contract

· Level of Authority: Provincial Local Regulations

· Date issued:06-18-2015

· Effective Date:01-01-2008

· Status: Effective

· Issuing Authority: Shanghai Municipality People's Congress (incl. Standing Committee)

 

Regulation of Shanghai Municipality on Collective Contracts
(Adopted at the 38th Session of the Standing Committee of the 12th Shanghai Municipal People's Congress on August 16, 2007; and amended in accordance with the Decision of the Standing Committee of the Shanghai Municipal People's Congress on Amending the Regulation of the Shanghai Municipality on Collective Contracts adopted at the 21st Session of the Standing Committee of the 14th Shanghai Municipal People's Congress on June 18, 2015)
Chapter I General Provisions
Article 1 In order to normalize the behavior of collectively consulting about, signing, and fulfilling collective contracts, protect the legitimate rights and interests of laborers, build and develop the harmonious and stable labor relationship, these Regulations are formulated in accordance with relevant provisions of laws and administrative regulations such as the Labor Law of the People's Republic of China, the Law of the People's Republic of China on Labor Contracts and the Trade Union Law of the People's Republic of China, and in the light of the actual circumstances of this Municipality.
Article 2 These Regulations apply to enterprises and their employees as one party within the administrative area of this Municipality conducting collective consultations about signing and fulfilling collective contracts on the relevant matters concerning labor relationship.
Article 3 The “collective consultation” mentioned in these Regulations refers to the employees of an enterprise as one party and the enterprise carrying out the activities of conducting consultation about the relevant matters concerning to labor relationship on an equal footing.
The “collective contract” mentioned in these Regulations refers to the written agreement signed between the employees of an enterprise as one party and the enterprise on relevant matters concerning labor relationship through collective consultation.
Article 4 Enterprises and their employees as one party shall establish the collective consultation mechanism to conduct collective consultation about the relevant matters concerning labor relationship.
In conducting collective consultation about, signing and fulfilling a collective contract on the relevant matters concerning labor relationship, the employees of an enterprise as one party and the enterprise shall follow the principle of legality, fairness, equality, mutual respect, honesty and credibility, and also giving consideration to the legitimate interests of both parties.
Article 5 the department of human resources and social security administration of the Municipality, a district or a county (hereinafter referred to as the human resources and social security department) shall exercise supervision over enterprises' employees as one party and the enterprises within the administrative area of this Municipality in conducting collective consultation about, signing and fulfilling collective contracts on the relevant matters concerning labor relationship.
Chapter II Collective Consultation
Article 6 To conduct collective consultation about the relevant matters concerning labor relationship, the employees of an enterprise as one party and the enterprise shall, in accordance with the procedures provided in these Regulations, produce their respective consultative representatives and chief representatives. The specific number of consultative representatives shall be determined through consultation between the two parties, but the number of consultative representatives for each side shall not be less than three persons, and the number of consultative representatives for the side of enterprise shall not exceed that for the side of employees.
Article 7 Where an enterprise has already established the trade union, the consultative representatives for the side of employees shall be selected and appointed by the trade union of the enterprise. Where the committee of female employees is to be established, there shall be a female consultative representative(s). The main responsible person of the trade union shall act as the chief representative.
Where the enterprise has not yet established the trade union, the consultative representatives for the side of employees shall be recommended in a democratic way by the trade union of the higher level, and approved by more than half of the employees of the enterprise itself. The chief consultative representatives shall be produced through democratic recommendation.
The consultative representatives for the side of enterprise shall be designated by the legal representative of the enterprise, and the legal representative or the person entrusted by him/her in written form shall act as the chief representative.
Both parties to the collective consultation shall, according to actual needs, invite the professional personnel outside their own enterprise to act as consultative representatives for their own sides, but the number of such persons shall not exceed one third of the consultative representatives for their own sides.
Both parties to the collective consultation may change their own consultative representatives. The change of consultative representatives shall follow the procedures of producing representatives as provided by these Regulations.
Article 8 The term for a consultative representative to perform the representative's duties shall be determined by the party he/she represents, but is to terminate not later than the expiry date of the collective contract; in case of failure to reach a consensus or to sign a collective contract, such terms shall be six months from the date he/she takes up his/her duties.
Article 9 The consultative representative shall perform the following duties:
(1)Participating in collective consultation;
(2)Collecting information about the situation and material relevant to collective consultation;
(3)Listening to the opinions of the personnel on his/her own side, and answering their questions;
(4)Participating in the settlement of disputes arising from the collective consultation; and
(5)Other duties to be performed for collective consultation.
Article 10 The consultative representatives produced by their own enterprise that participate in collective consultation during the work time, and in the time period of performing duties, utilize less than three work days to engage in the activities of collecting the material relevant to collective consultation, shall be regarded as offering normal labor in so doing, and their salaries and other items of welfare shall not be affected.
During the period when the consultative representatives for the side of employees perform their duties, the enterprise shall not change their job posts without justified reasons.
Article 11 The consultative representative shall perform the following duties:
(1)Maintaining the normal order of production and work in the enterprise;
(2)Keeping the enterprise's commercial secrets learnt in the course of collective consultation; and
(3)Observing the discipline agreed on by both parties to the collective consultation and not spreading the information acquired in the course of consultation that is inappropriate for propagation among outsiders.
Article 12 The enterprise shall, when formulating and modifying or deciding on the following rules and regulations or major issues directly involving the immediate interests of employees, come to a determination after conducting collective consultation with the side of its employees:
(1)Remuneration for labor;
(2)Working hours;
(3)Day off or vacation;
(4)Labor and sanitation;
(5)Insurance and welfare;
(6)Training of employees;
(7)Labor discipline;
(8)Labor quota; and
(9)Other items provided by laws and regulations.
The enterprise shall conduct collective consultation with the side of its employees about the level of employees' salaries and the mechanism of salary adjustment.
The side of employees of their own enterprise may request the enterprise to conduct collective consultation with them about the matters involving the interests of employees.
Article 13 Collective wage negotiations shall generally include the following:
(1) Wage distribution system, wage standards, means of wage distribution and methods of wage payments;
(2) Extent of adjustments to the employees' average annual wages;
(3) Bonuses, allowances, subsidies and other distribution methods;
(4) Overtime pay and wages during probation periods, sick leaves, personal leaves and other periods;
(5) Other wage-related matters which both parties think should be negotiated.
Article 14 Collective wage negotiations may refer to the following factors:
(1)The enterprise's labor productivity and economic benefits;
(2) The enterprise's employees' total wages and average wages in the previous year;
(3) Labor costs of the enterprise and the relevant industry;
(4) Employees' average wages in the Shanghai Municipality and in the relevant industry;
(5) The enterprise's wage increase guidelines and the guiding wage level in the labor market;
(6) Minimum wage standards;
(7) Urban residents' consumer price index;
(8) Other factors related to a collective wage negotiation.
Article 15 Either party of collective consultation parties may propose collective consultation to the opposite party in writing. The opposite party shall give a reply in writing within 15 days after receipt of the proposal for collective consultation, in case the proposal is turned down, justified reasons shall be given.
Where either of the parties to the collective consultation proposes collective consultation to the opposite party about the following matters, the opposite party shall not refuse or procrastinate:
(1)It is necessary to lay off over 20 employees or less than 20 employees, but they account for over 10 percent of the work force of the enterprise;
(2)Labor disputes lead to mass stoppage of work and/or complaints made by visits in person; and
(3)Perils of major accidents or professional hazards are found in the process of production.
Article 16 Where an enterprise has established the trade union, the trade union shall propose collective consultation on behalf of employees of the enterprise; and the enterprise shall, when proposing collective consultation, bring up the issue with the trade union of the enterprise.
Where an enterprise has not established the trade union, the representatives of employees recommended under the guidance of the trade union at a higher level shall propose collective consultation to the enterprise; and the side of enterprise may, when proposing collective consultation, bring up the issue either with its employees, or with the trade union at a higher level.
Article 17 Both parties to the collective consultation shall, prior to holding the formal consultation, make the following preparatory work:
(1)Producing consultative representatives within 15 days from the date both parties agree to hold collective consultation, and notify the opposite party in writing accordingly;
(2)Conducting consultation to determine the time and place for collective consultation;
(3)Collecting information about the situation and material relevant to the topics of the current collective consultation;
(4)Listening to the opinions and suggestions on the current collective consultation from relevant quarters;
(5)Understanding the laws, regulations and other relevant provisions concerning the topics of the collective consultation;
(6)Drafting the solution schemes on the topics of the collective consultation; and
(7)Other necessary preparatory work.
Article 18 Collective consultative meetings shall be jointly presided over by the chief representatives of both consultative parties. The party that puts forward the consultative topics shall give an explanation of the specific contents of the consultative topics as well as the solution scheme.
Collective consultative meetings shall keep the minutes well, and the chief representatives of both consultative parties shall sign the minutes.
The parties to a negotiation may request the other party to provide relevant materials and explanations on matters related to the topics of the negotiation. Where a trade secret of the enterprise is involved, the parties may enter into a special confidentiality agreement.
Article 19 The union at a higher level shall provide guidance for the employees in a collective negotiation with an enterprise, and may send personnel to observe the employees' collective negotiation activities with the enterprise, or be hired as the negotiator on behalf of the employees in accordance with Article 7 of this Regulation.
Article 20 Where enterprises are merged, split off or reorganized, the merged, split off or reorganized enterprises shall conduct collective consultation with the side of employees about the continuous fulfillment of the collective contracts; where a consensus is reached through consultation, the original collective contracts may continuously be fulfilled; in case of no consensus being reached through consultation, the enterprises and the side of employees shall conduct collective consultation anew about the matter concerning labor relationship.
Article 21 During the period of collective consultation, the enterprises and their employees shall maintain the enterprises' normal production and work order, and shall not reform any acts that affect the production, work order or the social stability.
No enterprise shall commit any of the following acts:
(1) Restricting the personal freedom of, or insulting, threatening, intimidating or violently injuring a negotiator on behalf of the employees;
(2) Refusing or obstructing an employee's access to the employment facility, or refusing to provide the tools of production or other conditions for employment;
(3) Refusing to provide materials on the topics in a collective negotiation or providing false materials;
(4) Committing any other act to interfere with or obstruct a collective negotiation.
No employee shall commit any of the following acts:
(1) Restricting the personal freedom of, or insulting, threatening, intimidating or violently injuring any person on the side of the enterprise;
(2) Violating the terms of a labor contract, failing to complete any labor assignment or forcing any other employee of the enterprise to leave his or her post by any means;
(3) Destructing the enterprise's equipment or tools, or committing any other act which disrupts the order of the enterprise's normal production and work, and the social and public order;
(4) Committing any other act to interfere with or obstruct a collective negotiation.
Chapter III Collective Contracts
Article 22 Where collective consultation is conducted for the purpose of signing collective contracts, it is necessary, when a consensus is reached through consultation to form the drafts of the collective contracts, which shall, after being signed by the chief representatives of both consultative parties, be regarded as the formal text of the drafts to be submitted to the employees' congress or all employees for discussion. The consultative representatives for the side of employees shall give an explanation of the situation of collective consultation and the contents of the draft collective contracts to the employees' congress or all employees.
The draft collective contract shall be adopted with the consent of over half of the representatives of the whole of employees or over half of all employees.
Article 23 After a draft collective contract is adopted upon the discussion of the employees' congress or all employees, the chief representative for the side of employees shall write to inform the side of the enterprise of the situation of the discussion and adoption. The enterprise shall, within 10 days from the receipt of the written notification, be responsible for submitting the collective contract to the municipal or district/county human resources and social security department.
The enterprise shall, while submitting the collective contract, provide the following materials:
(1)The collective contract text signed by the chief representatives of both consultative parties;
(2)Essential condition of both consultative parties and their representatives;
(3)Explanations for the situation of the process of consultative consultation; and
(4)The report on the situation of the discussion and adoption of the draft collective contract by the employees' congress or all employees.
Where the human resources and social security department does not raise any objection within 15 days from the date of receiving the collective contract text, the collective contract shall become effective.
Article 24 The enterprise and the side of employees may, upon collective consultation, sign special collective contracts with special contents such as salary adjustment mechanism, labor security or protection of the interests of female employees.
Article 25 The term of a collective contract shall generally be one to three years. The term of a special pay-related collective contract shall generally be one year.
The standards of labor conditions and labor remuneration, etc. agreed on in the collective contract shall not be lower than the minimum standards set by the State or the Municipal People's Government.
The standards of labor conditions and labor remuneration, etc. agreed on in the collective contract signed between the enterprise and the individual employee, or the standards of labor conditions and labor remuneration stipulated by the enterprise in its rules and regulations, shall not be lower than those prescribed by the collective contract.
Chapter IV Industrial or Regional Collective Contracts
Article 26 The union of the construction industry, food service industry or any other industry in a district or county, or any other industry eligible for collective negotiations may select and send negotiators to conduct collective negotiations with the negotiators on behalf of an industry association and the negotiators selected by an enterprise to enter into a collective industry contract.
The union in a neighborhood (or a town), an economic development zone, an industrial (or science and technology) park, a commercial district, commercial building or any other region where there is a relatively high concentration of micro and small enterprises may select and send negotiators to conduct collective negotiations with negotiators selected by an enterprise in the region not eligible for independent collective negotiations to enter into a regional collective contract.
Article 27 Industrial collective consultation may be conducted about the following matters involving the immediate interests of their employees in their own industry:
(1)The minimum salary standards in one' s own industry;
(2)The minimum range of salary adjustment in one' s own industry;
(3)The quota standards of similar jobs of the trade;
(4)The standards of labor security and sanitation for various jobs and posts in one' s own industry;
(5)The training system of employees on various jobs and posts in one' s own industry; and
(6)Other matters subject to collective consultation.
Article 28 The draft industrial collective contract shall be subject to the approval of the legal representatives of the enterprises in one' s own industry.
The draft industrial collective contract shall be adopted with the consent of over half of the representatives of the whole of employees or over half of all employees of the enterprise that approves such draft.
Article 29 Regional collective consultation may be conducted about the following matters involving the immediate interests of employees in their own region:
(1)The minimum salary standards in one' s own region;
(2)The minimum range of salary adjustment in one' s own region; and
(3)Other matters subject to regional collective consultation.
Article 30 The draft regional collective contract shall be subject to the approval of the legal representatives of the enterprises in their own region.
The draft regional contract shall be adopted with the consent of the employees' congress in one' s own region, or over half of the representatives of the whole of employees or over half of all employees of the enterprise that approves such draft.
Article 31 In respect of the industrial or regional collective contracts, the representatives for the side of enterprises or the trade unions shall be responsible for submitting the collective contracts and relevant material to the human resources and social security department.
Where no objection is raised by the human resources and social security department within 15 days after receipt of the submitted collective contracts, such collective contracts shall come into effect.
Article 32 The industrial or regional collective contract concluded according to law shall have binding force on the enterprises and their employees that approve the collective contract, and the standards of labor conditions, labor remuneration, etc. agreed on in the collective contracts and labor contracts signed between the enterprises and employees shall not be lower than the standards agreed on in the industrial or regional collective contract.
Chapter V Settlement of Disputes
Article 33 This Municipality shall establish a three-party coordination mechanism of labor relationship, consisting of representatives of relevant governmental departments, the trade unions and enterprises.
Article 34 Where the employees or the enterprise refuses or delays a request of the other party for a collective negotiation without justification, or the parties are unable to reach a consensus or enter into a collective contract during the process of collective negotiation, the employees may apply to the union at a higher level for guidance and the employer may apply to the negotiators on behalf of the enterprise for guidance. Where the parties fail to reach a consensus even with guidance, either party to the collective negotiation may apply to the human resources and social security department for coordination and handling. Where neither party to the collective negotiation applies for coordination and handling but the human resources and social security department considers it necessary, it may coordinate and handle the matter.
Where the employees apply for guidance or coordination and handling, and a union is already formed, the union shall file the application. Where no union has been formed, the negotiators on behalf of the employees shall file the application.
The human resources and social security department may, when coordinating the settlement of disputes arising in collective consultation, handle the case jointly with the trade union of the same level or representatives for the side of enterprises.
Article 35 When a human resources and social security department coordinates and handles the matter, it shall listen to the opinions of both parties to the negotiation, analyze the opinions on the negotiation based on the evidence materials provided by both parties to the negotiation, and present a coordination and handling opinion in accordance with the relevant provisions.
Article 36 Where an enterprise breaches the collective contract, infringes on the labor rights and interests of employees, the trade union may request the enterprise to shoulder the responsibility according to law; in case disputes arise over the fulfillment of the collective contract, and no settlement is made through consultation, the trade union may apply for arbitration according to law, or institute a law suit.
Chapter VI Legal Liabilities
Article 37 Where laws and administrative regulations carry provisions on handling the violations of the provisions of these Regulations, the provisions of relevant laws and administrative regulations apply.
Article 38 Where the enterprise changes the job post of a consultative representative for the side of employees without justified reasons, in violation of the provisions of Clause 2 of Article 10 of these Regulations, the enterprise shall reinstate his/her job post at the request of the consultative representative him/herself.
Article 39 Where an enterprise refuses or delays a collective negotiation without justification, the Federation of Trade Unions of the Shanghai Municipality, a district or a county may issue a written opinion on rectification and request the enterprise to make correction.
The enterprise that refuses or procrastinates collective consultation, in violation of the provisions of Clause 2 of Article 13 of these Regulations shall be ordered to make corrections by the human resources and social security department.
Where the enterprise refuses to make correction, such information shall be incorporated in the public credit information service platform of the Shanghai Municipality in accordance with the relevant provisions of the Shanghai Municipality on the administration of public credit information.
Article 40 Where an enterprise or an employee violates the provisions of Article 21 of this Regulation and the act constitutes a violation against public security administration, a public security authority shall handle the matter in accordance with the law. Where the act constitutes a crime, the enterprise or the employee shall be subject to criminal liability in accordance with the law.
Where any of the circumstances set out in Articles 38 and 39 of the Labor Contract Law of the People's Republic of China is present, either the enterprise or the employee may terminate the labor contract in accordance with the law.
Chapter VII Supplementary Provisions
Article 41 Where the branch of an enterprise, with the consent of the legal representative of the enterprise, conducts collective consultation with the employees of the branch and signs and fulfils the collective contract in regard to relevant matters concerning labor relationship, these Regulations shall apply.
Where the organizations such as individual economic organization, privately-run non-enterprise unit, etc., conduct collective consultation with the employees of their own units that have established labor relationship with the units, sign and fulfill the collective contracts in regard to relevant matters concerning labor relationship, these Regulations shall apply.
Article 42 These Regulations shall come into effect on January 1, 2008.