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集体合同规定 Collective Contract Provisions

2006-05-12 22:49   我要纠错 | 打印 | 收藏 | | |

劳动和社会保障部令第22号

(Promulgated by the Ministry of Labour and Social Security on 20 January 2004, and effective as of 1 May 2004.)

颁布日期:20040120  实施日期:20040501  颁布单位:劳动和社会保障部

  PART ONE GENERAL PROVISIONS

  Article 1 These Provisions have been formulated in accordance with the PRC, Labour Law and the PRC, Labour Union Law in order to standardize collective consultation and the conclusion of collective contracts, and safeguard the lawful rights and interests of labourers and employers according to law.

  Article 2 These Provisions shall apply to the collective consultation and conclusion of collective contract between an enterprise or an institution that implements enterprise management (Employer) and its employees in the People‘s Republic of China.

  Article 3 For the purposes of these Provisions, the term “collective contract” means a written agreement concluded through collective consultation between an Employer and its employees regarding such matters as labour compensation, working hours, rest days and leaves, labour safety and hygiene, vocational training, and insurance and welfare benefits in accordance with the provisions of laws, regulations and rules. The term “special collective contract” means a special written agreement concluded between an Employer and its employees regarding certain contents of collective consultation in accordance with the provisions of laws, regulations and rules.

  Article 4 Collective consultation shall be adopted as the means for the conclusion of a collective contract or special collective contract and the determination of relevant matters between an Employer and its employees. Collective consultation shall mainly take the form of consultation meeting.

  Article 5 When conducting collective consultation and concluding collective contracts or special collective contracts, the following principles shall be followed:

  1. compliance with laws, regulations, rules and the relevant State provisions;

  2. mutual respect and consultation on an equal level basis;

  3. act in good faith and cooperate on the basis of fairness;

  4. the lawful rights and interests of both parties shall be taken into account; and

  5. no extreme action shall be taken.

  Article 6 Collective contracts or special collective contracts that comply with these Provisions shall be legally binding on Employers and all of their employees.

  The standards such as labour conditions and labour compensation stipulated in a labour contract concluded between an Employer and an individual employee shall not be lower than those stipulated in the collective contract or special collective contract.

  Article 7 The administrative department of labour security at or above county level shall supervise the collective consultation and the conclusion and performance of collective contracts between Employers and their employees within its administrative area, and shall be responsible for examining collective contracts or special collective contracts.

  PART TWO THE CONTENT OF COLLECTIVE CONSULTATION

  Article 8 Both parties in collective consultation may carry out collective consultation and conclude a collective contract or special collective contract regarding one or more of the following matters:

  1. labour compensation;

  2. working hours;

  3. rest days and leaves;

  4. labour safety and hygiene;

  5. supplementary insurance and welfare benefits;

  6. special protection for female employees and minor workers;

  7. vocational skill training;

  8. labour contract management;

  9. reward and punishment;

  10. layoff;

  11. term of the collective contract;

  12. procedures for modification and rescission of the collective contract;

  13. consultation and handling methods in the event of a dispute arising from the performance of the collective contract;

  14. liability for breach of the collective contract; and

  15. other matters that, as deemed by both parties, shall undergo consultation.

  Article 9 Labour compensation mainly includes:

  1. wage level, wage distribution system, wage standard and form of wage distribution of the Employer;

  2. method of wage payment;

  3. wage and allowance for overtime work, subsidy standards and method of bonus distribution;

  4. method of wage adjustment;

  5. wage during probation period, sick leave and leave of absence, etc.;

  6. payment method of wage (living expenses) of employees in special circumstances; and

  7. other methods of distribution of labour compensation.

  Article 10 Working hours mainly include:

  1. man-hour system;

  2. procedures for overtime work;

  3. working hours for special types of work; and

  4. labour quota standard.

  Article 11 Rest days and leaves mainly include:

  1. daily rest time, weekly rest day arrangement and annual leave procedures;

  2. rest days and leaves for employees on which standard man hours may not be implemented; and

  3. other holidays.

  Article 12 Labour safety and hygiene mainly includes:

  1. responsibility system for labour safety and hygiene;

  2. labour conditions and safety technical measures;

  3. safe operation procedures;

  4. standard for distribution of labour protection supplies; and

  5. periodic health examination and vocational health examination.

  Article 13 Supplementary insurance and welfare benefits mainly include:

  1. types and scope of supplementary insurance benefits;

  2. basic welfare system and welfare facilities;

  3. extension of medical treatment period and the benefits during such extension; and

  4. welfare system for the relatives of employees.

  Article 14 Special protection for female employees and minor workers mainly includes:

  1. work that should be avoided to be carried out by female employees and minor workers;

  2. labour protection for female employees during menstrual, pregnancy, confinement and nursing periods;

  3. periodic health examination for female employees and minor workers; and

  4. system for use and registration of minor workers.

  Article 15 Vocational skill training mainly includes:

  1. project planning and annual plan of vocational skill training;

  2. withdrawal and utilization of vocational skill training funds; and

  3. measures to safeguard and improve vocational skill training.

  Article 16 Labour contract management mainly includes:

  1. time of conclusion of labour contracts;

  2. conditions for determining the term of labour contracts;

  3. general principles for modification, rescission and extension of labour contracts and conditions for termination of open-term labour contracts; and

  4. conditions and duration of the probation period.

  Article 17 Reward and punishment mainly includes:

  1. labour discipline;

  2. evaluation system for reward and punishment; and

  3. procedures for reward and punishment.

  Article 18 Layoff mainly includes:

  1. layoff proposal;

  2. layoff procedures; and

  3. implementing method and compensation standard for layoff.

  PART THREE COLLECTIVE CONSULTATION REPRESENTATIVES

  Article 19 For the purposes of these Provisions, the term “collective consultation representatives” (Consultation Representatives) means personnel that have been produced in accordance with statutory procedures and that have the authority to engage in collective consultation for the interests of their own party.

  Each party in collective consultation shall have an equal number of representatives, which shall be at least three, and shall decide on one chief representative.

  Article 20 The Consultation Representatives of the employees shall be selected by the labour union of the work unit. Where no labour union has been established, such representatives shall be recommended democratically by the employees of the work unit, and shall be agreed upon by over half of the employees.

  The position of chief representative of the employees shall be assumed by the chairman of the labour union of the work unit. The chairman of the labour union may appoint in writing another Consultation Representative to be the chief representative. If the chairman position of the labour union is vacant, the position of chief representative shall be assumed by the main responsible person of the labour union. Where no labour union has been established, the chief representative of the employees shall be elected democratically from the Consultation Representatives.

  Article 21 The Consultation Representatives of the Employer shall be appointed by the legal representative of the Employer, and the position of chief representative shall be assumed by the legal representative of the work unit or by another management personnel appointed by the legal representative in writing.

  Article 22 The time period during which a Consultation Representative shall perform his duties shall be determined by the party being represented.

  Article 23 The chief representative of both parties in collective consultation may appoint in writing professional personnel outside the work unit as a Consultation Representative of his party. The number of appointed persons shall not exceed one-third of the representatives of the party.

  Personnel from outside the work unit may not act as a chief representative.

  Article 24 A Consultation Representative of the Employer or the employees shall not serve concurrently as a Consultation Representative of the other party.

  Article 25 A Consultation Representative shall perform the following duties:

  1. participate in collective consultation;

  2. accept inquiries from the party he represents, and announce the status of consultation to, and solicit opinion from, the personnel of the party he represents in a timely manner;

  3. provide details and information relating to the collective consultation;

  4. participate on behalf of the party he represents in the handling of disputes in collective consultation;

  5. supervise the performance of collective contracts or special collective contracts; and

  6. other duties stipulated by laws, regulations and rules.

  Article 26 A Consultation Representative shall safeguard the normal production and working order of his work unit, and shall not commit acts such as threat, bribery or fraud.

  A Consultation Representative shall maintain the confidentiality of the trade secrets of the Employer learned during the course of collective consultation.

  Article 27 The participation of internal Consultation Representative of enterprises in collective consultation shall be deemed as having provided normal labour.

  Article 28 If the term of the labour contract of a Consultation Representative of the employees expires during the period in which he performs his duties as a Consultation Representative, the term of the labour contract shall automatically be extended until the completion of the performance of the duties, and the Employer shall not terminate the labour contract with him unless he is in any of the following circumstances:

  1. has seriously violated labour discipline or the system of rules and regulations legally formulated by the Employer;

  2. is seriously derelict in his duties or practises graft, causing major damage to the interests of the Employer; or

  3. his criminal liability has been pursued in accordance with the law.

  During the period in which the Consultation Representative of the employees performs his duties in such capacity, the Employer shall not adjust his work post without proper reason.

  Article 29 If a Consultation Representative of the employees has a dispute with the Employer regarding Article 27 or 28 hereof, he may apply to the local labour dispute arbitration commission for arbitration.

  Article 30 The labour union may replace the Consultation Representatives of the employees. Where no labour union has been established, the Consultation Representatives of the employees may be replaced with the consent of over half of the employees of the work unit.

  The legal representative of the Employer may replace the Consultation Representatives of the Employer.

  Article 31 Where a vacancy of Consultation Representative is created by replacement, resignation or an event of force majeure, a new representative shall be produced within 15 days of the date of vacancy in accordance with these Provisions.

  PART FOUR PROCEDURE FOR COLLECTIVE CONSULTATION

  Article 32 Either party in collective consultation may request the other party in writing to undertake collective consultation regarding a collective contract or special collective contract as well as relevant matters.

  If a party requests for collective consultation, the other party shall respond in writing within 20 days of the date of receipt of the request for collective consultation, and shall not refuse to undertake collective consultation without proper reason.

  Article 33 Consultation Representatives shall carry out the following preparatory work before consultation:

  1. familiarize themselves with the laws, regulations, rules and systems relating to the content of the collective consultation;

  2. understand the details and information relating to the content of the collective consultation, and collect the opinions of the Employer and the employees on the intent of the consultation;

  3. determine the agenda of the collective consultation, which may be drafted by one of the parties in the consultation or jointly by the representatives appointed by both parties;

  4. determine matters such as the time and venue of the collective consultation; and

  5. jointly decide on a person that is not a Consultation Representative to be the note taker of the collective consultation. The note taker shall remain neutral and impartial, and shall maintain confidentiality for the parties in the collective consultation.

  Article 34 A collective consultation meeting shall be presided over by the chief representative of each party in turn, and shall proceed in accordance with the following procedure:

  1. the agenda and the discipline of the meeting shall be announced;

  2. the chief representative of one party shall present the specific subject of consultation and the demand, and the chief representative of the other party shall respond to the demand of the other party;

  3. both parties in the consultation shall give their opinions and engage in full discussion of the matters under consultation; and

  4. the chief representatives of both parties shall conclude their opinions. If a consensus is reached, a draft collective contract or special collective contract shall be formed and signed by the chief representatives of both parties.

  Article 35 If a consensus is not reached or an unexpected problem arises in the collective consultation, consultation may be suspended upon consultation of both parties. The term of suspension and the time, venue and content of renewed consultation shall be agreed upon jointly by both parties.

  PART FIVE CONCLUSION, MODIFICATION, RESCISSION AND TERMINATION OF COLLECTIVE CONTRACTS

  Article 36 A draft collective contract or special collective contract on which unanimity has been reached by the Consultation Representatives of both parties through consultation shall be submitted to employees representative meeting or all employees for discussion.

  The employees representative meeting or all employees that discuss the draft collective contract or special collective contract shall be attended by over two-thirds of the employee representatives or all employees; and the draft collective contract or special collective contract shall be adopted only with the consent of over half of the employee representatives or over half of all employees.

  Article 37 After a draft collective contract or special collective contract has been adopted by the employees representative meeting or the employees meeting, it shall be signed by the chief representatives of both parties in collective consultation.

  Article 38 The term of a collective contract or special collective contract shall be one to three years in general, and shall immediately be terminated when the term expires or when the conditions for termination agreed upon by both parties arise.

  Within three months prior to the expiration of the term of the collective contract or special collective contract, either party may request to the other party for a renewed conclusion or extension.

  Article 39 Where the Consultation Representatives of both parties have reached a unanimous decision, a collective contract or special collective contract may be modified or rescinded.

  Article 40 A collective contract or special collective contract may be modified or rescinded in any of the following circumstances:

  1. the Employer undergoes merger, dissolution or becomes insolvent, rendering it impossible to perform the collective contract or special collective contract;

  2. it is impossible to perform part or all of the collective contract or special collective contract due to reasons such as force majeure;

  3. the conditions for modification or rescission of the collective contract or special collective contract arise; or

  4. other circumstances stipulated by laws, regulations and rules.

  Article 41 The procedure for collective consultation hereof shall apply to the modification or rescission of collective contracts or special collective contracts.

  PART SIX EXAMINATION OF COLLECTIVE CONTRACTS

  Article 42 After a collective contract or special collective contract has been concluded or modified, it shall be submitted by the Employer to the administrative department of labour security in triplicate within 10 days of the date on which it is signed by the chief representatives of both parties.

  The administrative department of labour security shall register the collective contract or special collective contract submitted.

  Article 43 Territorial jurisdiction applies to the examination of collective contracts or special collective contracts. The specific scope of jurisdiction shall be stipulated by the administrative departments of labour security at provincial level.

  Collective contracts of enterprises that are governed by the central government and Employers that are across provinces, autonomous regions or municipalities directly under the central government shall be submitted to the Ministry of Labour Security or the administrative department of labour security at provincial level designated by the Ministry of Labour Security.

  Article 44 The administrative department of labour security shall conduct a legal compliance examination of the following matters in regards to the submitted collective contracts or special collective contracts:

  1. whether the qualifications of both parties in the collective consultation comply with the provisions of laws, regulations and rules;

  2. whether the procedure for collective consultation violate the provisions of laws, regulations and rules; and

  3. whether the contents of the collective contract or special collective contract are in conflict with State provisions.

  Article 45 If the administrative department of labour security advances objection to a collective contract or special collective contract, it shall deliver an Examination Opinion to the Consultation Representatives of both parties within 15 days of the date of receipt of the text. The Examination Opinion shall specify the following particulars:

  1. the name and address of both parties to the collective contract or special collective contract;

  2. the time of receipt of the collective contract or special collective contract by the administrative department of labour security;

  3. the examination opinion; and

  4. the time at which the examination opinion is rendered.

  The seal of the administrative department of labour security shall be affixed to the Examination Opinion.

  Article 46 If an Employer and its employees conclude a new collective contract or special collective contract through collective consultation regarding the matters to which the administrative department of labour security has advanced objection, the Employer shall submit the text to the administrative department of labour security for examination in accordance with Article 42 hereof.

  Article 47 Where the administrative department of labour security has not advanced any objection within 15 days of the date of receipt of the text, the collective contract or special collective contract shall come into immediate effect.

  Article 48 A collective contract or special collective contract that is in effect shall, as of its effective date, be announced by the Consultation Representative to all personnel of his party in a timely and appropriate manner.

  PART SEVEN COORDINATION OF HANDLING OF DISPUTES IN COLLECTIVE CONSULTATION

  Article 49 If a dispute arises in the course of collective consultation and it cannot be resolved by both parties through consultation, either party or both parties may apply in writing to the administrative department of labour security for coordination of handling. Where no application has been made, the administrative department of labour security may carry out coordination of handling if it deems such action necessary.

  Article 50 The administrative department of labour security shall organize the personnel from three sides such as the labour union and the enterprise organization at the same level to jointly coordinate the handling of disputes in collective consultation.

  Article 51 Territorial jurisdiction applies to the handling of disputes in collective consultation. The specific scope of jurisdiction shall be stipulated by the administrative departments of labour security at provincial level.

  The handling of disputes arising from collective consultation in enterprises that are governed by the central government and Employers that are across provinces, autonomous regions or municipalities directly under the central government shall be coordinated by the administrative department of labour security at provincial level designated by the Ministry of Labour Security by organizing the personnel from three sides such as the labour union and the enterprise organization at the same level. If necessary, the Ministry of Labour Security may organize the relevant authorities to coordinate the handling.

  Article 52 When coordinating the handling of a dispute in collective consultation, the coordination of handling shall be completed within 30 days of the date of acceptance of the application for coordination of handling. If the coordination of handling is not completed by the end of the time limit, the period for coordination of handling may be appropriately extended, but the extension may not exceed 15 days.

  Article 53 Coordination of handling of disputes in collective consultation shall be carried out in accordance with the following procedure:

  1. accept the application for coordination of handling;

  2. investigate and understand the dispute;

  3. study and formulate a plan for coordination of handling of the dispute;

  4. coordinate the handling of the dispute; and

  5. prepare a Coordination of Handling Agreement.

  Article 54 A Coordination of Handling Agreement shall specify the application for coordination of handling, the facts of the dispute and the result of the coordination. If both parties fail to reach a consensus on certain matters under consultation, the relevant matters that shall continue to be consulted shall be specified. The Coordination of Handling Agreement shall come into effect after it has been signed and sealed by the personnel coordinating the handling of disputes in collective consultation and the chief representatives of both parties of the dispute. Both parties of the dispute shall comply with the Coordination of Handling Agreement after it comes into effect.

  PART EIGHT SUPPLEMENTARY PROVISIONS

  Article 55 If the parties fail to resolve a dispute arising from the performance of a collective contract through consultation, they may apply to the labour dispute arbitration commission for arbitration in accordance with the law.

  Article 56 If an Employer refuses the request for collective consultation of the labour union or the employee representatives without proper reason, the matter shall be handled in accordance with the Labour Union Law and the provisions of relevant laws and regulations.

  Article 57 These Provisions shall be implemented as of 1 May 2004. The Collective Contract Provisions promulgated by the former Ministry of Labour on 5 December 1994 shall be simultaneously repealed.

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