Jurisdiction - China
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China – Employment Law Update: January 2015.

15 January, 2015

 

Legal News & Analysis – Asia Pacific – China – Labour & Employment

 

No Fees For Personnel Files Of “Floating” Personnel In 2015

 

In China, every employee has an official personnel file, which contains information such as the employee’s education and employment history. The term “floating” personnel in China refers to people who have not attained permanent residency (“hukou“) in the place in which they are residing. Personnel files for “floating” personnel must be held by government service agencies in charge of public employment and human resources.

 

On 10 December 2014, Five Departments (the Central Organization Department, the Ministry of Human Resources and Social Security, the Development and Reform Commission, the Ministry of Finance, and the National Archive Bureau) jointly issued the Notice on Further Strengthening Management and Services for Personnel Files of “Floating” Personnel (“Notice“). According to the Notice, all fees such as management fees, access fees, certification fees and transfer fees for personnel files will be waived from 1 January 2015, and government service agencies in charge of public employment and human resources shall provide “floating” personnel with basic services for personnel files free of charge.

 
Draft Measures Provide Equal Rights for Residence Permit Holders

 

On 4 December 2014, the Legislative Affairs Office of the State Council released Draft Measures for the Administration of Residence Permits (“Draft Measures“) for public comments. According to the Draft Measures, migrant citizens (i.e. Chinese citizens who have resided in cities other than their permanent residence) may apply for residence permits that will enable them to enjoy the same basic rights and benefits as permanent residents. 

 

To be eligible to apply for a residence permit, migrant citizens must have resided in the city to which they wish their rights and benefits to apply for over six months. They must also have a stable job, or a stable home or be in continuous education in that city. 

 

Before the Draft Measures, migrant citizens could only apply for temporary residence permits, which do not offer many of the rights or benefits enjoyed by permanent residents. In Beijing, for example, holders of temporary residence permits are generally not entitled to receive free compulsory education or take the college entrance exam in Beijing. Under the Draft Measures however, holders of residence permits will be able to enjoy these rights, and will gradually be entitled to further benefits, including the right to receive vocational training, employment assistance, housing support, social welfare, social assistance, and the right for children of residence permit holders to participate in local high school and college entrance exams. 

 

Furthermore, subject to meeting the requirements of the local government, the Draft Measures will allow holders of residence permits to apply for permanent residency (hukou) for themselves, their spouse, minor children and parents.

 
Dongguan Intermediate Court Defends Nokia’s Termination Of Former Workers Who Staged A Strike

 

In November 2014, nearly 3,000 workers at the Nokia factory in Dongguan, Guangdong, staged a series of strikes and protests relating to concerns arising from Nokia’s decision to sell its mobile phone business to Microsoft. Over 200 employees were dismissed for failing to return to work in breach of the company regulations. Some of these employees issued claims against Nokia for illegal dismissal and sought reinstatement. However, as detailed in one recently publicised judgment, the Dongguan Intermediate Court upheld the decision of the district court of first instance that the dismissals had been lawful.

 

In its decision, the court gave consideration to the company’s Employee Handbook, stating that it had been properly formulated and announced to the employees in accordance with the law. The court also held that the provisions contained within the Handbook, specifically that which stipulates that an employee’s absence for 3 consecutive days without prior authorisation amounts to a serious violation of company regulations and shall be cause for immediate termination without compensation, are not contrary to any legal requirements and therefore are lawful and valid. As such, since the employee’s conduct (i.e. absence from work for 3 consecutive days without authorisation due to participating in the strike) constituted a serious violation under the terms of the Handbook, the company was entitled to terminate her employment without compensation.

 
Labour Disputes Ranked No. 1 Source Of Social Conflict In China

 

According to an article from China News Service, a report issued by the Chinese Academy of Social Sciences on 24 December 2014 states that labour disputes remain the number one source of social conflict in China. 

 

The report indicates that 522,000 labour arbitration cases involving 721,000 workers were handled in the first three quarters of 2014, representing increases of 5.6% and 11.1% respectively, on the corresponding period in 2013. According to the report, mass protests that stemmed from labour disputes have also been on the increase. These protests mainly related to disputes over unpaid wages, mass layoffs/redundancies and economic compensation, taxi operation, and social insurance and benefits. The report noted in particular that 52 protests in the first three quarters of 2014 involved more than 1,000 workers each, indicating an increase not only in the frequency of large-scale protests, but also in the number of workers participating.

 

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For further information, please contact:

 

Pádraig Walsh, Partner, Bird & Bird
padraig.walsh@twobirds.com

 

Leslie Maclou, Partner, Bird & Bird

lesley.maclou@twobirds.com

 

Ying Wang, Partner, Bird & Bird

ying.wang@twobirds.com

 

Susan de Silva, Partner, Bird & Bird

susan.desilva@twobirds.com

 

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