CLB has translated some of the key provisions of the Shenzhen Municipal Implementing Regulations for the Trade Union Law of the People's Republic of China, an important and highly significant piece of legislation examined in our commentary A Turning Point for China’s Trade Unions.
The Implementing Regulations were:
Adopted by the 26th Session of the Standing Committee of the Third Shenzhen Municipal People's Congress on 27 August 2003
Ratified by the Sixth Session of the Standing Committee of the 10th Shenzhen Municipal People's Congress on 26 September 2003
Amended by the 18th Session of the Standing Committee of the Fourth Shenzhen Municipal People's Congress on 1 April 2008
Ratified by the Second Session of the Standing Committee of the Eleventh Shenzhen Municipal People's Congress on 29 May 2008
Below are word-for-word translations of the articles and chapters highlighted in the commentary:
Article 11. Candidates for trade union chairperson, deputy chairperson, standing committee member and committee member shall be democratically recommended by the union members and, upon approval of the higher-level trade union, be directly elected by the members' general assembly or representative assembly. The chairperson, deputy chairperson and standing committee members may also be elected by the trade union committee.
Where the number of female staff and workers is relatively large, female members should occupy the posts of trade union chairperson and deputy chairperson or standing committee and committee members. Where there are more than three female employees, the women’s committee members in the trade union committee should be female union members.
The employing unit's legal representative, managing director, deputy director or equivalent, personnel department director and any relatives of theirs employed in the enterprise should not hold a concurrent post as trade union chairperson, deputy chairman, standing committee member, committee member or member of the trade union fund auditing committee.
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Chapter III
Trade Unions' Rights and Obligations
Article 17. The trade union general assembly or representative assembly shall exercise the following powers:
(1) deliberate and ratify the work reports of the trade union committee;
(2) deliberate and ratify the trade union committee reports on revenues and expenditures as well as the work reports of the fund auditing committee;
(3) elect and recall the trade union chairperson, deputy chairperson, standing committee members, committee members and fund auditing committee members;
(4) deliberate and decide other matters stipulated by laws, regulations and trade union statutes.
Article 18. Basic-level trade union committees, trade union federations and trade union working committees shall perform the following duties:
(1) implement the resolutions adopted by the trade union's general assembly or representative assembly and the higher-level trade union;
(2) organize and hold workers’ assembly or congress meetings and supervise the implementation of resolutions adopted by workers' assemblies or congresses;
(3) represent union members, staff and workers in conducting collective bargaining and signing collective contracts with the employing unit, and supervise the performance of collective contracts;
(4) help or guide union members, staff and workers in concluding written labour contracts with their employing unit;
(5) represent union members, staff and workers in holding consultations with the employing unit regarding regulations and other important matters that affect the interests of workers, participate in mediation and deal with labour disputes;
(6) supervise, in accordance with the law, the employing unit's compliance with production safety, labour protection, wage payment and social security laws, regulations and standards;
(7) support union members' and workers' exercise of their democratic rights in accordance with the law:
(8) represent union members, staff and workers in the vigorous pursuit of wage increases, improved working conditions and other legitimate interests;
(9) protect the special interests of female workers, disabled workers, workers in high-risk occupations and juvenile workers;
(10) make known the opinions and demands of union members, staff and workers to the employing unit, the relevant state agencies and social organizations;
(11) organize union members, staff and workers to engage in healthy recreational and sports activities, and enrich their cultural life;
(12) inform union members, staff and workers of state laws, regulations, principles and policies to protect workers' lawful rights and interests, and educate and guide union members, staff and workers to defend their rights in accordance with the law and to respect public order;
(13) collect and use union funds in accordance with regulations;
(14) comply with other obligations stipulated by laws, regulations and trade union statutes.
Article 19. Trade union federations and industrial unions at all levels shall perform the following duties:
(1) participate in the investigation and formulation of laws, regulations and policy measures which directly affect the interests of staff and workers;
(2) establish and improve union organizations in accordance with the law;
(3) support, guide and supervise lower-level trade unions in the performance of their duties;
(4) guide and assist the employing unit in establishing and improving a workers’ assembly or congress system;
(5) assess the performance of lower-level unions and union officials;
(6) provide legal assistance to lower-level unions, union members, staff and workers;
(7) carry out vocational training;
(8) coordinate relations between trade unions and other state agencies and social organizations;
(9) comply with other obligations stipulated by laws, regulations and trade union statutes.
Article 20. Before drawing up a model contract, the municipal or district administration department of labour should solicit opinions from the trade union federation of the same level; before drawing up the provisions of the contract, the employing unit should solicit opinions from its own trade union.
Article 21. The municipal or district administration department of labour should, together with the trade union federation of the same level and the enterprise's representative, establish a tripartite labour relations coordination mechanism to jointly investigate and handle important labour relations issues.
Sub-districts and communities should actively create the conditions for and assist in the establishment of a tripartite labour relations mechanism.
Article 22. Municipal and district people's governments and their departments and relevant state agencies should establish a system of joint meetings with the union federation at the same level in order to investigate and handle important issues affecting the interests of staff and workers. Joint meetings should be held on a regular or ad hoc basis. The particulars of the meetings should be made public in accordance with regulations on the publication of government information.
The trade union should establish a system of joint meetings with the Communist Youth League, Women's Federation, Disabled Persons' Federation and other social organizations at the same level in order to investigate and handle important issues affecting the interests of staff and workers.
Article 23. The employing unit should keep staff and workers regularly informed of the following:
(1) regulations and important decisions that directly affect the interests of staff and workers;
(2) wage and welfare standards and their implementation;
(3) payment of social insurance premiums;
(4) working conditions, labour protection standards and their implementation;
(5) other matters which laws and regulations stipulate should be made known to staff and workers.
The trade union shall supervise the employing unit's compliance with the aforementioned obligations.
Article 24. The employing unit should, in accordance with state regulations and actual conditions in the enterprise, establish and improve a workers’ assembly or congress system and guarantee the right of staff and workers to participate in democratic management.
The trade union is the working body of the workers’ assembly or congress and shall be responsible for the day-to-day work of the assembly or congress.
Article 25. State-owned or collectively-owned enterprises and their holding enterprises should report to the workers' assembly or congress any major issues concerning the enterprise's schemes for reform, ownership restructuring, merger and bankruptcy, as well as medium to long-term development plans, except those involving state or business secrets; schemes for reducing staff, relocating and settling staff and workers and disposing assets for their settlement should be submitted to the workers’ assembly or congress for consideration for adoption.
Article 26. The trade union should urge enterprises that have established a board of directors and a board of supervisors to establish, in accordance with the law, a system of worker participation in the board of directors and board of supervisors.
The workers' representatives in the enterprise's board of directors or board of supervisors shall be nominated by the enterprise's trade union and elected by the workers’ assembly or congress.
Article 27. The trade union should represent staff and workers in conducting negotiations and signing collective contracts with the enterprise, public institution or other economic organization concerning important matters such as work compensation, working hours, rest and holidays, occupational safety and health, insurance and welfare, vocational training for staff and workers, labour discipline, labour quota management and special protection of female and juvenile staff and workers. A special collective contract may also be concluded with respect to the aforementioned matters.
If the higher-level trade union considers that the lower-level trade union cannot properly discharge its responsibilities, it may delegate a worker or employee to engage in collective bargaining with the enterprise, public institution or other economic organization.
Article 28. In the building, retail and catering industries, trade unions may engage in collective bargaining and sign regional and industry-specific collective contracts with employing units.
Article 29. When the trade union engages in collective bargaining with the enterprise, institution or other economic organization, the chairperson of the trade union shall be the chief negotiator for the staff and workers; other negotiators representing staff and workers shall be appointed through democratic means.
The negotiators for the enterprise, public institution or other economic organization shall be appointed by its legal representative. The role of chief negotiator shall be assumed by the legal representative or another manager authorized in writing by the legal representative.
The chief negotiators of both sides should be present during substantive negotiations.
Article 30. Neither the trade union nor the enterprise, public institution or other economic organization may refuse or delay collective bargaining except in case of force majeure.
When one party demands collective bargaining, the other party should respond within ten working days, unless both parties have a separate agreement concerning a time limit for negotiation.
Article 31. If a work stoppage or slowdown occurs in an enterprise, public institution or other economic organization, the trade union should represent the staff and workers to negotiate with the enterprise, public institution, other economic organization or relevant authorities.
If no trade union has been established when such industrial action as is mentioned in the previous paragraph occurs, the local federation of trade unions should, in compliance with its functions, duties and division of responsibilities, represent the staff and workers or guide their representative in negotiating with the enterprise, public institution, other economic organization or relevant authorities and should, furthermore, guide and assist union members, staff and workers in establishing a trade union in accordance with the law.
Article 32. Trade unions at all levels should establish supervisory organizations for labour law and regulations as well as supervisory and inspection organizations for labour protection which will supervise and inspect employing units' compliance with labour laws and regulations as well as their production safety and occupational safety conditions.
Article 33. If the employing unit violates labour laws and regulations and seriously infringes the legal rights and interests of union members, staff and workers, the trade union should provide them with whatever support and assistance they may need to apply for arbitration or bring a lawsuit in accordance with the law.
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Article 36. Implementation of an allowance system for basic-level trade union committee posts. Basic-level trade union committee chairpersons, deputy chairpersons, standing committee members, members and trade union fund auditing committee chairpersons who have undergone a democratic appraisal and passed a performance assessment by an upper-level trade union shall receive a monthly post allowance amounting to no less than five percent of the average monthly wage in that city, but government employees and employees subject to the Civil Servant Law of the People's Republic of China shall not be eligible for this allowance.
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Article 44. If the labour contract of a workers' representative expires while he is performing his duties as a representative during collective bargaining negotiations, the contract shall automatically be extended until he has fulfilled his duties, unless the circumstances specified in Article 39 of the Labour Contract Law of the People's Republic of China occur or the representative has lost his capacity to work or has retired in accordance with the law.
During the period when a workers' representative is engaged in collective bargaining negotiations, the employing unit may not reassign his post without his consent.
The time the workers' representative spends performing his duties in collective bargaining negotiations shall be considered to be normal working time.
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Article 45. Municipal and district trade union federations should establish a special fund to defend the rights and interests of staff and workers and assign dedicated personnel to provide whatever support and assistance may be required in the following instances:
(1) when a basic-level trade union committee engages in collective bargaining to pursue legitimate interests such as wage increases and better working conditions;
(2) when union members, staff and workers apply for arbitration or bring a lawsuit in accordance with the law because their labour rights have been violated;
(3) when trade union organizations and their personnel have been prevented or restricted from performing their work or have been subjected to retaliation;
(4) in other instances when municipal and district trade union federations consider that they need to provide support and assistance.