On March 25, 2007, the Standing Committee of the National People’s Congress invited concerned groups and members of the public to respond to its draft Promotion of Employment Law. In an unprecedented up-swell of public involvement in the legislative process, 4,713 submissions were made to the NPC Standing Committee within two weeks. Major issues of concern included discrimination in the workplace, the lack of social and health insurance, and the plight of rural migrants and college graduates.
The China Labour Bulletin is encouraged by the positive involvement of ordinary Chinese citizens in the legislative process and hopes the government will give due consideration to the suggestions and ideas raised by the public on this crucial issue that affects the entire working population of the country.
In addition, after a detailed examination of the draft law by our legal experts, CLB has submitted our own proposal to the NPC. We suggest that the draft has serious shortcomings and does not go far enough in addressing the key problems that exist in the workplace today. We propose that a more effective way to promote employment would be to draft three separate laws; a Law Against Discrimination in Employment, a (revised) Vocational Education Law and an Employment Agency Law. We realize however the NPC is unlikely to follow this advice and suggest as an interim measure a number of very specific revisions to the existing draft that widen the scope of the law and make clear the government’s obligations on this matter.
The full (translated) text of our submission to the NPC Standing Committee follows.
China Labour Bulletin's Opinions and Suggested Revisions for the Law of the People's Republic of China for the Promotion of Employment (Draft)
China Labour Bulletin makes the following suggestions regarding the Law of the People's Republic of China for the Promotion of Employment (Draft) (hereafter "Draft) (Zhonghua remin gongheguo cujin jiuyefa [cao'an]):
First, we welcome the fact that the Standing Committee of the National People's Congress has invited the public to comment on this Draft. At the same time, we believe that this Draft contains major shortcomings as regards its legislative aim and intended application. This Draft has not defined the financial responsibilities of the various levels of government responsible for promoting employment through vocational training and employment services. It also lacks provisions to reduce unemployment by restricting enterprises from laying off workers at will and discharging employees for discriminatory reasons. The Draft contains relatively specific and enforceable provisions regarding fraudulent behaviour by employment agencies, but article after article of the Draft contain the auxiliary verb "ought to" (yingdang), which deprives a great many of the articles of their force and provides broad leeway to decide the intended application of a particular article.
Our overall impression of the Draft is this: it lacks any specific provisions to guarantee citizens' right to employment; it lacks any explicit financial measures to fulfil the government's responsibility to promote employment; and it has been written more to make a show of complying with the International Labour Organisation's 1958 Convention Concerning Discrimination in Respect of Employment and Occupation (which China ratified on January 12, 2006) than to meet the Chinese workers' need for the promotion of employment.
Second, we believe that as a matter of principle employment is a fundamental citizen's right and that the government is ultimately responsible for promoting employment. The Constitution and the Labour Law have clearly established these rights and responsibilities. To guarantee citizens' right to employment and the government's obligation to promote employment, the Employment Promotion Law needs to contain unequivocal and specific legal provisions that clearly define respective rights and obligations. Therefore, we believe that instead of drafting an Employment Promotion Law that is divorced from reality, fails to clearly define rights and responsibilities and is difficult to enforce, it would be better to rewrite and revise key provisions in the Draft as three separate laws that provide a clear definition of rights and responsibilities, are enforceable and are capable of genuinely promoting employment: a Law Against Discrimination in Employment, a (revised) Vocational Education Law and an Employment Agency Law.
First, draft a Law Against Discrimination in Employment in order to put into practice the principle stipulated in Articles 12 and 13 of the Labour Law prohibiting discrimination in employment. The law must clearly define what practices on the part of employment agencies and employers constitute employment discrimination and stipulate specific and unequivocal penal sanctions for such discriminatory practices.
Second, in order to fulfil the government's responsibilities in the area of vocational training as stipulated in Articles 66 to 69 of the Labour Law, revise the Vocational Education Law of the People's Republic of China of 1996. In order to firmly establish the government's responsibility to develop and fund vocational training, stipulate what proportion each level of government shall allocate in its annual budget to vocational training expenditures. At the same time, legislation needs to regulate the operational procedures for the government to directly run and subsidise vocational training institutions, and it needs to clearly define the conditions that citizens must fulfil in order to enjoy the right to vocational education, along with their entitlements (daiyu).
Third, in order to implement the provision regarding employment agencies contained in Article 11 of the Labour Law, draft an Employment Agency Law that clearly demarcates the difference between non-profit employment agencies and commercial employment agencies, stipulates the conditions to be met to qualify as an employment agency, establishes principles and methods for non-profit employment agencies to obtain government subsidies and stipulates legal responsibilities to be borne by employment agencies that violate the Employment Agency Law.
China Labour Bulletin realises that the likelihood that the legislative proposals outlined above will be adopted is extremely small. Therefore, we propose as an interim measure the following revisions to the Law of the People's Republic of China for the Promotion of Employment (Draft):
"Article 1. This law has been formulated in order to promote employment, develop harmonious employment relationships, promote positive interaction between economic development and increased employment and bring about a harmonious and stable society."
Proposed revision: Change "promote positive interaction between economic development and increased employment" to "to promote economic development and at the same time increase employment".
Explanation of revision: The original wording "positive interaction" is too general and has no legal definition.
"Article 2. Upholding the guiding principles of workers choosing their own jobs, the market regulating employment and the government promoting employment, [the government] increases employment through multiple avenues so as to progressively realise the goal of full employment."
Proposed revision: "Upholding the guiding principles of the government promoting employment, workers choosing their own jobs and the market regulating employment, [the government] increases employment through multiple avenues so as to progressively realise the goal of full employment."
Explanation: The objective behind the formulation and promulgation of this law is to codify the obligation the state and government owe the citizens with respect to employment. Therefore, "government promoting employment" must come first amongst the guiding principles.
"Article 4: [through measures such as] regulating the skilled personnel and labour markets". (See also Articles 24, 25 and 26.)
Proposed revision: "regulating the labour market".
Explanation: The "skilled personnel market" is an outmoded concept. Whereas one of the objectives behind the formulation and promulgation of this law is to eliminate job discrimination, a division between the "skilled personnel market" and the "labour market" implies discrimination.
"Article 5. Workers shall have the right to equal employment and to choose their own job in accordance with the law. Workers seeking employment shall not be subject to discrimination based on factors such as ethnicity, race, gender, religion, age, physical disability, etc." (See also Article 26.)
Proposed revision: "Workers seeking employment shall not be subject to discrimination based on factors such as ethnicity, race, gender, religious belief, household registration, age, marital status, physical disability, etc."
Explanation: In practice, discrimination based on household registration is a serious form of job discrimination. Although the central government is currently working on a reform of the household registration system, as long as no substantive progress is made in this reform, this law ought to contain a clear provision addressing this problem. In addition, because the discrimination of workers based on their marital status is also a widespread problem, this law ought to have a provision to this effect.
"Article 27. Rural workers who go to cities in search of employment shall enjoy labour rights equal to those of urban workers. The setting of discriminatory restrictions against rural workers seeking employment in cities is prohibited."
Proposed revision: This article ought to be moved to Chapter 2, "POLICY SUPPORT".
Explanation: Local governments that promulgate discriminatory policies, not the labour market, are mainly responsible for setting discriminatory restrictions against rural workers seeking employment in cities. This law ought to include a clear provision in the "POLICY SUPPORT" chapter to eliminate this type of policy barrier.
"Article 33. An enterprise that intends to carry out a mass layoff shall comply with relevant laws and statutes."
Proposed revision: The wording "intends to carry out a mass [layoff]" needs to be defined.
Explanation: This article restricts employers from laying off employees. To give due consideration to the lawful rights and interests of employers of different sizes, this article ought to define "mass layoff" either as a percentage or an absolute number.
"Article 39. Based on market requirements and the direction of industrial development, local people's governments at the county level and above and the competent authorities shall strengthen the job skills and operational training given to workers."
Proposed revision: "Based on market requirements and the direction of industrial development, local people's governments at the county level and above and the competent authorities shall encourage every type of vocational training organisation to provide job skills and operational training to workers."
Explanation: The various levels of government do not have an obligation (under China’s existing laws and regulations) to directly provide job skills and operational training to workers.
"Article 40. Local people's governments at the county level and above shall progressively implement labour preparation systems to provide junior middle school and senior middle school graduates who are unable to advance to the next level of schooling with vocational training for a fixed period of time, so as to support and promote their obtaining relevant professional qualifications or mastering certain job skills."
Proposed revision: Change the clause "to provide junior middle school and senior middle school graduates who are unable to advance to the next level of schooling with vocational training for a fixed period of time" in this article to read "encourage every type of vocational training organisation to provide junior middle school and senior middle school graduates who are unable to advance to the next level of schooling with vocational training for a fixed period of time."
Explanation: The various levels of government do not have an obligation (under China’s existing laws and regulations) to directly provide junior middle school and senior middle school graduates who are unable to advance to the next level of schooling with vocational training for a fixed period of time.
"Article 49. Local people's governments at every level shall establish and strengthen reemployment assistance systems to combine assistance for and resolution of production and livelihood (shengchan shenghuo) problems faced by those who have difficulty in finding work and to provide priority support and key assistance to those who have difficulty in finding work."
Proposed revision: Change the clause "to combine assistance for and resolution of production and livelihood problems faced by those who have difficulty in finding work" in this article to read "to combine assistance for and resolution of livelihood problems faced by those who have difficulty in finding work".
Explanation: The inclusion of the word “production” here is inappropriate because production is an issue for employers not employees.
"Article 54. People's governments and competent authorities at all levels shall establish systems of responsibility to achieve employment promotion objectives. People's governments at the county level and above shall assess and supervise the competent authorities subordinate to them based on the requirements of the employment objective responsibility systems. Higher-level people's governments shall assess and supervise the people's governments at the level below them based on the requirements of the employment objective responsibility systems."
Proposed revision: Add the clause "Higher-level people's governments shall provide the necessary policy and administrative support for the people's governments at the level below them to achieve the employment objectives" to this article.
Explanation: Higher-level people's governments have an obligation not only to assess and supervise people's governments at the level below them to achieve employment objectives but also to support them in this task.
"Article 58. Trade unions shall protect the lawful rights and interests of workers in accordance with the law and monitor employers' compliance with employment promotion laws and statutes."
Proposed revision: Add the following provision to this article: "Grass-roots trade unions and local trade unions shall monitor the government's compliance with this law. Grass-roots trade unions and local trade unions shall provide legal assistance to workers in disputes arising from employment discrimination."
Explanation: This law has accentuated the government's obligation to promote employment. Therefore, the function of trade unions is not limited to monitoring employers' compliance with employment promotion laws and statutes, but also includes the responsibility of providing legal assistance to workers. This is an important aspect of trade unions' protection of the rights and interests of workers.
"LEGAL LIABILITY"
Proposed revision: This chapter ought to contain one or several articles on the legal liability of employers that engage in discriminatory employment practices.
Explanation: Article 26 of the Draft prohibits employers from engaging in discriminatory employment practices. Accordingly, the "LEGAL LIABILITY" chapter has to stipulate relevant legal liabilities.
"LEGAL LIABILITY"
"Proposed revision: This chapter ought to include a provision stipulating the legal liability of employers that refuse to make arrangements for the employment of disabled persons in the proportion stipulated by government regulations.
Explanation: Article 51 of the Draft stipulates that employers shall make arrangements for the employment of disabled persons in the proportion stipulated by government regulations. Accordingly, the "LEGAL LIABILITY" chapter has to stipulate relevant legal liabilities.
"Article 61. If an employer, employment agency or an individual thereof violates this law by providing false information, forging, altering or transferring an employment agency permit, seeking illegitimate gain in the guise of providing employment agency services..."
Proposed revision: The word "employer" must be deleted.
Explanation: This article seems to be aimed at employment agencies; moreover, there are no employers forging, altering or transferring employment agency permits.
China Labour Bulletin welcomes and supports the fact that the Standing Committee of the National People's Congress has invited the public to comment and make suggestions on the Law of the People's Republic of China for the Promotion of Employment (Draft). At the same time, China Labour Bulletin believes that while the fundamental rights and interests of workers must be protected by law, it is also necessary to mobilise all social forces to promote employment and oppose job discrimination. We propose that this law should affirm the role of trade unions in promoting employment and resisting job discrimination and that it should entrust trade unions of all levels with the responsibility of monitoring the compliance with this law by the government, competent authorities and employers.
China Labour Bulletin
Central Post Office
Hong Kong SAR
Telephone: (852)2780 2187
Fax: (852) 2359 4324
Email: clb@clb.org.hk
Website: www.clb.org.hk