Regulations of Shanghai Municipality on Employees' Congress
Regulations of Shanghai Municipality on Employees' Congress
(Adopted at the 23rd Session of the Standing Committee of the 13th Shanghai Municipal People’s Congress on December 23, 2010 and revised according to the Decision on Revising the Regulations of Shanghai Municipality on Employees' Congress adopted at the 41st Session of the Standing Committee of the 14th Shanghai Municipal People’s Congress on November. 23, 2017)
Contents
Chapter 1 General Principles
Chapter 2 Functional Rights
Chapter 3 Employees Representatives
Chapter 4 Organization System
Chapter 5 Rules of Procedures
Chapter 6 Working Body
Chapter 7 Regional and Industrial Employees’ Congress
Chapter 8 Supervision, Inspection and Legal Liabilities
Chapter 9 Supplements
Chapter I General Provisions
Article 1 With a view to ensuring employees’ democratic rights, building harmonious and stable labor relations, and promoting the joint development of individuals and organizations such as enterprises or public institutions, and non-governmental non-enterprise units, these regulations are formulated in accordance with the Constitution of the People’s Republic of China, the Labor Union Law of the People’s Republic of China, the Company Law of the People’s Republic of China, the Labor Contract Law of the People’s Republic of China, and other relevant laws and administrative regulations, and in the light of the actual circumstances of this Municipality.
Article 2 These regulations apply to the establishment and implementation of the employees’ congress systems by enterprises, public institutions and non-governmental non-enterprise units (hereinafter collectively referred to as the enterprises or public institutions) within the jurisdiction of this Municipality.
Article 3 The leadership of the Communist Party of China shall be adhered in the promotion of the construction of employees’ congress systems for the harmonious development of labor relations.
Article 4 Enterprises or public institutions shall establish the systems of employees’ congresses.
The enterprises or public institutions with a staff of 100 or more persons shall convene employees’ congresses; those with a staff of fewer than 100 persons generally convene employees’ conferences.
The employees’ congresses (or the employees’ conferences, similarly hereinafter) shall be the basic forms of democratic management by enterprises or public institutions, the important systems of coordinating the labor relations, and the agencies for employees to exercise their democratic rights of management.
The employees’ congresses shall give full play to democracy and implement the principle of majority rule.
Article 5 The enterprises or public institutions shall ensure the employees’ congresses to exercise functional rights according to law and ensure the employees’ entitlement to the rights of information, participation, expression and supervision.
Employees shall be entitled to take part in the democratic management of the enterprises or public institutions via the employees’ congresses according to law, support the lawful production, operation and management activities of the enterprises or public institutions, and maintain their own legitimate rights and interests.
The managements of the enterprises or public institutions shall work out, in cooperation with their own labor unions, the specific procedures to implement the systems of employees’ congresses, and include them into the management systems of those units.
Article 6 The labor unions of the enterprises or public institutions shall be the working bodies of the employees’ congresses, and undertake their routine work.
Article 7 The peoples’ governments at all levels of this Municipality shall set up and perfect working systems, and via joint meetings held in cooperation with the labor unions or with other suitable measures, promote the implementation of the systems of employees’ congresses in their jurisdictions.
The competent departments of state-owned assets, education, sci-technology, culture, and hygiene and the relevant administrative departments of human resources and social security shall guide, urge, and inspect the enterprises or public institutions for the implementation of the systems of employees’ congresses.
Article 8 The superior labor unions, trade associations, and relevant joint enterprise organizations shall guide and help the enterprises or public institutions to establish and perfect the systems of employees’ congresses.
Chapter II Functional Rights
Article 9 The employees’ congresses shall exercise the functional rights such as deliberating proposals, adopting proposals, investigating and supervising, democratic elections, and democratic appraisals by laws.
Article 10 The following matters shall be reported to the employees’ congresses for deliberation, and the opinions and proposals of the employees shall be listened to via the employees’ congresses:
1. the development plans, annual operating management, and important decisions of the enterprises or public institutions;
2. the important matters involving immediate interests of the employees in the course of formulating, revising or deciding the rules and regulations by the enterprises or public institutions, and the programs of modification of labor relations such as employees’ resettlement, and economic compensation in the course of reform and restructuring;
3. the collective bargaining between the labor unions and managements of the enterprises or public institutions over the employees’ wage adjustment, economic layoff, mass labor disputes, and major potential accidents or occupational hazards that ensue from the process of production;
4. the performance of working bodies of the employees’ congresses and the matters handled via consultation by the joint meetings;
5. the important matters such as financial budgets and final accounts in the state-owned or collectively-owned enterprises or public institutions and their holding companies; and
6. other matters that shall be reported to the employees’ congresses as provided by laws, rules and regulations or as determined via consultation between the managements and the labor unions.
The decision of the enterprises or public institutions on important matters such as restructuring, merger, demerger, relocation, shutdown, dissolution, and filing bankruptcy shall be deliberated at the employees’ congresses, or the employees’ opinions and suggestions shall be listened to via other forms as provided by laws.
Article 11 The following matters shall be reported to the employees’ congresses for deliberation and approval:
1. draft collective contracts involving matters such as payment of labor, working time, rest and vacation, and insurance benefits;
2. the draft special collective contracts involving such matters as wage adjustment systems, protection of the rights and interests for female employees, and safety and hygiene of labor;
3. the draft special collective contracts involving such matters as mass labor disputes caused by labor relation modification programs in the enterprises or public institutions, and formulated via collective negotiation as provided by regulations;
4. important matters such as payment systems, benefit systems, labor employment management systems, employee education and training systems, employees’ resettlement involved in the reform or restructuring, and other matters involving the employees’ immediate interests, in the state-owned or collectively-owned enterprises and their holding companies;
5. important matters such as staff appointments, methods of examination, rewards and punishment, principles and methods of income distribution, employees’ welfare benefit systems, employees’ resettlement program involved in the reform or restructuring, and other matters involving the employees’ immediate interests in the public institutions;
6. other matters as shall be submitted to the employees’ congresses for deliberation and approval as provided by laws, rules or regulations, or determined by negotiations between the managements and the labor unions.
Article 12 The following matters shall be reported to employees’ congresses for investigation and supervision:
1. the situation of handling proposals of employees’ congresses;
2. the implementation of important matters deliberation and approved by employees’ congresses;
3. the performance of collective contracts and special collective contracts;
4. the performance of safety hygiene standards, paying social insurance premium, and drawing and using of the employees’ education and training expenses; and
5. other matters that shall be reported to employees’ congresses for investigation and supervision as provided by laws or regulations or determined by consultation between the managements and labor unions of the enterprises or public institutions.
Article 13 The following personnel shall be elected democratically by the employees’ congresses:
1. members of the democratic management panels (committees);
2. employees’ representatives on the boards of directors and on the boards of supervisors; and
3. other personnel that shall be elected democratically by the employees’ congresses as provided by laws and regulations or as determined via consultation between the managements and labor unions of the enterprises or public institutions.
Article 14 The following personnel shall be subject to the democratic appraisal by the employees’ congresses:
1. employees’ representatives on the board of directors and on the board of supervisors;
2. senior managers of state-owned or collectively-owned enterprises and their holding companies, the responsible persons of public institutions, and other personnel that shall be subject to the democratic appraisal by the employees’ congresses according to the relevant provisions of this Municipality; and
3. other personnel that shall be subject to the democratic appraisal by the employees’ congresses as provided by laws and regulations or as determined via consultation between the managements and labor unions of the enterprises or public institutions.
Chapter III Employees’ Representatives
Article 15 All of the employees of the enterprises or public institutions shall be entitled to be elected as the employees’ representatives. Employees’ representatives shall be elected democratically by the employees and the systems of permanent tenure shall be implemented thereof. Employees’ representatives shall be entitled to serve for another term of office if reelected, with the tenure as long as the term of employees’ congresses.
The election of employee representatives usually shall be held in the electoral precincts, which are composed of branch companies, branch institutes (schools), departments, teams, groups or administrative offices. No less than two thirds of all the employees of the electoral precincts shall take part in the election. To be elected, the candidates shall win affirmative votes of more than half of all the employees of the electoral precincts. The election results shall be made public.
Article 16 Employees’ representatives shall be mainly made up of front-line employees. The proportion of middle and senior managers to all the employees’ representatives shall not exceed 20%, but such proportion for trans-regional or a cross-industry large-scale group enterprises shall be entitled to increase appropriately. The proportion of female employees’ representatives shall generally match the proportion of female employees to all the staff of the units.
The personnel directly engaged in corresponding professional work shall be the main part of the employees’ representatives of the enterprises or public institutions in the fields of education, science and technology, culture, and hygiene.
Article 17 The rights of employees’ representatives:
1. the right to elect, the right to be elected, the deliberative right, and the right to vote;
2. the right of information, the right of making suggestions, the right of participation and the right of supervision about important matters involving the development of their own units and the employees’ rights and interests;
3. participating in activities such as training and inspection relevant to the performance of employees’ representatives’ duties; and
4. enjoying the due treatment of regular attendance when their production or working time is used for the performance of their duties.
Article 18 The obligations of employees’ representatives:
1. studying and publicizing the relevant laws, regulations, and policies, improving their own qualities, enhancing their abilities to participate in democratic management, and doing a good job of their own work;
2. contacting employees of their electoral precincts, soliciting their opinions and suggestions, and expressing the employees’ wishes and requirements;
3. implementing the resolutions of the employees’ congresses, and doing a good job of various tasks allocated by the congresses;
4. promptly notifying employees of their electoral precincts of their participation in the activities of the employees’ congresses and their performance of duties, and accepting the appraisal and supervision of the employees; and
5. abiding by, in an exemplary way, the unit’s rules and regulations, and keeping commercial secrets.
Article 19 When there are vacancies of employees’ representatives, the original electoral precincts shall hold by-elections in a timely manner according to the provided democracy procedures. The by-election results shall be made public.
The removal of employee’s representatives for nonperformance without reasons or inability of performance of their duties shall be approved by over half of all the employees of the original electoral precincts.
Article 20 No repression, obstruction or retaliation by organizations or individuals shall be allowed when employees’ representatives exercise their rights according to law.
Chapter IV Organization System
Article 21 The assigned number of employees’ representatives of the employees’ congresses of the enterprises or public institutions shall be determined according to the following provisions:
1. As to the enterprises or public institutions having employees from 100 to 3,000, the assigned number of employees’ representatives shall be 30 as the base quota, and the number shall be increased by no fewer than five for each additional 100 employees;
2. As to the enterprises or public institutions having employees more than 3,000, the assigned number of employees’ representatives shall be no fewer than 175; and
3. As to the enterprises or public institutions having employees fewer than 100 and still implementing the system of employees’ congresses, the assigned number of employees’ representatives shall be no less than 30.
The employees’ congresses shall have the option of taking in nonvoting delegates if needed. Nonvoting delegates shall have no rights to elect or to be elected.
Article 22 Every tenure of the employees’ congresses shall be three to five years. If a term of office of the employees’ congresses needs to be extended, the extended time shall not exceed the limit of one year.
The employees’ congresses shall meet at least once a year. A session of the employees’ congresses may be held if the enterprises or public institutions, the labor unions, or over one third of the employees’ representatives make a proposal thereof.
Article 23 The presidium elected by the employees’ congresses shall preside over the session, and handle the relevant important issues during the session.
In the case of the number of the employees’ representatives reaching 30 to 100, the members of the presidium shall be 3 to 5, in the case of the number of the employees’ representatives reaching more than one 100, the members of the presidium shall be no fewer than 7. The front-line employees’ representatives shall be no fewer than 50% of the number of the presidium.
In the case of the number of the employees reaching fewer than 30, one person shall be elected as the executive chairman and preside over the employees’ conference.
Article 24 The employees’ congresses shall be entitled to set up democratic management panels (committees), which shall organize employees’ representatives to carry out special activities of democratic management and shall handle the relevant matters allocated by the employees’ congresses. The persons responsible of the panels (committees) shall be employee’s representatives.
Article 25 During the inter-sessional periods of the employees’ congresses, the enterprises or public institutions shall be entitled to hold joint meetings of the employees’ congresses to handle, via consultation, the important matters that need to be handled in a timely manner (except for the matters that shall be submitted to the employees’ congresses for deliberation and approval as provided by laws or regulations), and the settlement results shall be reported to the next session of the employees’ congresses.
The joint meetings shall be called by the labor unions and shall be attended by the heads of staff teams (groups), the persons responsible of the democratic management panels (committees), members of the presidium, and members of the labor union committees.
Article 26 Branch companies (factories) and branch institutes (schools) of the enterprises or public institutions shall establish the employees’ congress systems to exercise the employee’ corresponding rights of democratic management.
Article 27 The expenditure of the employees’ congresses shall be disbursed from the administration expense of the enterprises or public institutions.
Chapter V Rules of Procedures
Article 28 No sessions of the employees’ congresses shall be held without the attendance of over two thirds of the employees’ representatives.
Article 29 The topics and agenda of the sessions of the employees’ congresses shall be agreed on by the managements and labor unions of the enterprises or public institutions.
Article 30 The written materials to be submitted to the employees’ congresses for deliberation and voting shall be sent to the employees’ representatives seven days before the sessions of the employees’ congresses; the employee representative teams (groups) shall organize employees’ representatives to discuss such materials, and the labor unions shall collect and sort out the opinions and suggestions of the employee representative teams (groups) in a timely manner.
As to the sharp disagreement from the employees’ representatives on the important matters involving the employees’ immediate interests, the managements and the labor unions shall submit the matters to the employees’ congresses for deliberation once more after revisions, via consultation, according to the employees’ opinions.
Article 31 All items that are deliberated by the employees’ congresses shall get affirmative votes of over half of the employees’ representatives, in the mode of secret ballots.
Article 32 The matters and resolutions deliberated and approved by the employees’ congresses shall be made public to the whole staff after the sessions of the employees’ congresses.
Article 33 The labor unions of the enterprises or public institutions shall have the rights to raise written claims for correcting the failure of submitting by legal procedures the matters which should be submitted to the employees’ congresses for deliberation as provided by law，and the managements shall correct the matters according to the requests of the labor unions and deliver a written reply.
As to the matters that should be submitted to the employees’ congresses for deliberation as provided by laws and regulations and that have not been submitted according to the statutory procedures, the decisions made by the enterprises or public institutions on such matters shall not be binding on the employees.
Article 34 The matters deliberated and approved by the employees’ congresses within its purview of power shall be binding on the corresponding units and their whole staff, and shall not be altered if not deliberated once again by the employees’ congresses.
Chapter VI Working Body
Article 35 During the period of preparing and convening of the employees’ congresses, the labor unions of the enterprises or public institutions shall perform the following functions and duties:
1. organizing and carrying out the jobs such as election, removal and training of employees’ representatives;
2. preparing the documents of the employees’ congresses;
3. offering recommended lists of candidates for the presidium members of the employees’ congresses, members of the democratic management panels (committees), and recommended lists of candidates for employees’ representatives on the boards of directors and on the boards of supervisors;
4. carrying out collective consultation on behalf of the employees with the managements of enterprises or public institutions to formulate the draft collective contracts, the special draft collective contracts, drafting notes, and the reports on collective consultation;
5. organizing the employee representative teams (groups) to discuss, before and during the sessions, the matters submitted to the employees’ congresses for deliberation and voting, to collect and sort out the opinions, and to consult with the managements of the enterprises or public institutions for revision; and
6. taking charge of other preparatory and organizational jobs of the employees’ congresses.
Article 36 The labor unions of the enterprises or public institutions shall perform the following functions and duties during the inter-sessional periods of the employees’ congresses:
1. mobilizing the employees to carry out the resolutions of the employees’ congresses, and urging the implementation of the resolutions and the handling of the proposals;
2. establishing liaison systems with employees’ representatives, accepting and hearing the employees’ representatives’ complaints and proposals, and maintaining their legitimate rights and interests;
3. organizing the employees’ representatives and the democratic management panels (committees) to conduct daily democratic management activities such as making proposals, inspection tours, and quality assessments; and
4. fulfilling other jobs allocated by the employees’ congresses.
Article 37 The labor unions of the enterprises or public institutions shall report the relevant matters of the sessions to the labor unions at the next higher levels within seven working days after the closing of the sessions of the employees’ congresses.
Chapter VII Regional and Industrial Employees’ Congresses
Article 38 Enterprises within the same regions such as communities, industrial parks, commercial streets or commercial buildings shall be entitled to establish jointly the regional employees’ congresses. Enterprises with the same or similar business operations shall be entitled to establish jointly the industrial employees’ congresses.
The working bodies of the regional or industrial employees’ congresses shall be the regional or industrial labor unions.
Article 39 Town/township people’s governments and sub-district offices shall promote actively the implementation of the systems of regional and industrial employees’ congresses, and shall support and ensure their normal operation, and define relevant functional departments to perform the following duties:
1. organizing and coordinating the establishment of the systems of regional or industrial employees’ congresses;
2. guiding and urging the regional or industrial employees’ congresses to implement the provisions of these Regulations and exercise the functional rights;
3. defining, in cooperation with the unions and joint enterprise organizations, the conveners and persons responsible to implement the systems of the regional or industrial employees’ congresses;
4. urging the implementation of resolutions of the regional or industrial employees’ congresses; and
5. offering，in cooperation with the unions and joint enterprise organizations and by laws, handling suggestions on the enterprises that violated the provisions of these Regulations.
Article 40 The regional or industrial employees’ congresses shall exercise the following functional rights:
1. listening to the reports on the implementation of labor laws, regulations and policies in the regions or industries, and the reports on the status of labor relations in the regions or industries, and offering opinions and suggestions thereon;
2. deliberating the important matters that involve directly the immediate interests of employees of the enterprises in the regions or industries, such as payment of labor, working time, rest and vacation, safety and hygiene of labor, insurance benefits, employee training, and production quota, and offering opinions and suggestions thereon;
3. deliberating and approving the regional or industrial draft collective contracts and of the special draft collective contracts;
4. investigating and supervising the performance of labor laws and regulations and of the decisions of the regional or industrial employees’ congresses by the enterprises within the regions or industries, and their fulfillment of the regional or industrial collective contracts and special collective contracts, and payment of social insurance premium; and
5. other functional rights that shall be exercised by the regional or industrial employees’ congresses.
Article 41 The number and composition of employees’ representatives of the regional or industrial employees’ congresses shall be determined upon negotiation between the regional or industrial labor unions and the enterprises within the regions or industries, and such labor unions shall set up electoral precincts according to the actual circumstances and organize the employees to elect employees’ representatives democratically and proportionally.
The total number of employees’ representatives of the regional or industrial employees’ congresses shall be no fewer than 30, of which the enterprise managers shall not exceed 30% and the front-line employees shall not be fewer than 50%.
Article 42 The collective contracts, special collective contracts and the relevant resolutions adopted by the regional or industrial employees’ congresses shall be made public to all the employees.
Article 43 The organization systems, rules of procedures, and duties of the working bodies, of the regional or industrial employees’ congresses, shall be implemented by reference to the relevant provisions on the employees’ congresses of enterprises or public institutions.
Chapter VIII Supervision, Inspection and Legal Liabilities
Article 44 The municipal and district human resources and social security administrative departments, the labor unions at the same levels, and the representatives of enterprises or public institutions shall, via the tripartite consultation mechanisms of the labor relations, promote jointly the enterprises or public institutions to establish and perfect the employees’ congress systems.
Article 45 The municipal and district human resources and social security administrative departments, and the labor unions at the same levels shall inspect the implementation of the systems of employees’ congresses while carrying joint supervision and inspection over the performance of labor insurance laws and regulations by the enterprises.
Article 46 The general unions at municipal and district levels shall include the performance of implementation of the employees’ congress systems of the enterprises or public institutions in the contents of the labor laws and regulations supervision and inspection of labor unions. As to the acts violating these regulations by the enterprises or public institutions, the general unions may deliver labor union position papers on labor laws supervision rectification to demand their rectification within 90 days. As to the enterprises or public institutions that fail to do so, the general unions at municipal and district levels may deliver proposals of the labor union on labor laws supervision and handling to the competent departments of state-owned asset, education, sci-technology, culture, and hygiene and administrative departments of human resources and social insurance.
As to the enterprises or public institutions that trigger mass labor disputes due to breach of these Regulations, and that relate to the proposals of labor union labor laws supervision and handling from the general unions, the competent departments of state-owned asset, education, sci-technology, culture, and hygiene and administrative departments of human resources and social insurance shall carry out investigation and handling by law, and urge the enterprises or public institutions to make corrections within 30 days.
As to the enterprises or public institutions having failed to make corrections within the specified periods, the general labor unions shall include this information in the municipal public credit information service platform according to the relevant provisions of the municipal social credit management. As to the enterprises or public institutions having violated labor insurance laws or regulations, the human resources and social security administrative departments shall exercise administrative handling according to the laws.
Article 47 If disputes over the implementation of the employees’ congress systems arise between the managements and labor unions of the enterprises or public institutions, the two parties shall settle them via consultation. Upon the failure of such consultation, the disputes shall be submitted to the labor unions at higher levels for settlement via coordination with the relevant competent departments.
Article 48 As to the enterprises or public institutions having violated the provisions of these Regulations and committed any of the following acts, the municipal and district people’s governments and the competent departments of state-owned asset, education, sci-technology, culture, and hygiene and the human resources and social security administrative departments shall order them to make corrections, and give criticism and education to their legal representatives and relevant persons responsible, or take legal actions if they refuse to make corrections:
1. hindering the establishment of the systems of employees’ congresses;
2. hampering the employees’ congresses to exercise functional rights;
3. causing damage to the employees due to having failed to submit the matters that should be submitted to the employees’ congresses for deliberation and approval according to statutory procedures; or
4. arbitrarily changing or refusing to implement the decisions of employees’ congresses and infringing the rights of employees.
Article 49 If the legal representatives or other managers of the enterprises or public institutions insult or slander the employees’ representatives, retaliate against them by means of violence or threat and, cause personal injuries thereto, the public security organs shall impose public security punishment thereon by law; if such acts cause serious consequences and constitute a crime, the wrongdoers shall be prosecuted for criminal liabilities by law.
If the persons responsible of the labor unions of the enterprises or public institutions fail to perform their functions and duties as provided by these Regulations and infringe the employees’ rights and interests, the municipal, district and industrial (bureau) labor unions shall order them to make corrections within prescribed time limits, and if the cases are serious, they shall be removed by law.
Article 50 If the relevant departments of the municipal and district people’s governments or their working personnel, in violation of the provisions of these Regulations, neglect their duties, abuse their powers, or commit irregularities for favoritism, the units to which they belong or the superior competent departments shall impose administrative sanctions thereon by law; if such acts constitute a crime, the wrongdoers shall be prosecuted for criminal liability by law.
Chapter IX Supplementary Provision
Article 51 These Regulations shall be effective as of May 1, 2011.