Viewpoint... The employer formulates labor rules and regulations to implement democratic procedures related to legal analysis.

Published:

2021-11-17

1. relevant legal provisions Labor Contract Law of (I) Article 4 Employers shall establish and improve labor rules and regulations in accordance with the law to ensure that workers enjoy labor rights and perform labor obligations. When the employing unit formulates, revises or decides on rules and regulations or major matters directly related to the vital interests of workers, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance and welfare, staff training, labor discipline and labor quota management, etc., it shall be discussed by the staff and workers' Congress or all the staff and workers, put forward plans and opinions, and shall be determined through equal consultation with the trade union or staff and workers' representatives. In the process of implementing rules and regulations and decisions on major issues, if the trade union or employees consider it inappropriate, they have the right to propose to the employing unit and revise and improve it through consultation. The employing unit shall publicize the rules and regulations and decisions on major matters that directly involve the vital interests of the workers, or inform the workers. (II) (I) of Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases Article 50 The rules and regulations formulated by the employer through democratic procedures in accordance with Article 4 of the Labor Contract Law, which do not violate national laws, administrative regulations and policies, and have been publicized to the workers, can be used as the basis for determining the rights and obligations of both parties. If the internal rules and regulations formulated by the employer are inconsistent with the contents of the collective contract or labor contract, and the laborer requests that the contract be applied first, the people's court shall support it. (III) Notes on Certain Provisions of the Labor Law Article 4 Employers shall establish and improve rules and regulations in accordance with the law to ensure that workers enjoy labor rights and perform labor obligations. The term "in accordance with the law" in this article should be understood in a broad sense and refers to all laws, regulations and rules. Including: the constitution, laws, administrative regulations, local regulations, ethnic autonomous areas, but also in accordance with the local autonomy regulations and special regulations, as well as administrative regulations on labor. the People's Republic of China Companies Act of (IV) Article 18 Paragraph 3 When a company studies and decides on major issues in restructuring and operation, and formulates important rules and regulations, it shall listen to the opinions of the company's trade union, and listen to the opinions and suggestions of the employees through the employee representative assembly or other forms. 2. types of systems that need to be submitted to the Workers' Congress or all employees for discussion 1. When the employer formulates, revises or decides on rules and regulations or major matters directly related to the vital interests of workers, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance benefits, staff training, labor discipline and labor quota management. (Article 4 (2) of the Labor Contract Law) 2. When the company studies and decides on major issues in restructuring and operation, and formulates important rules and regulations. (Section 18 (3) of the Companies Act) Steps 3. the introduction of democratic procedures According to the provisions of Article 4, paragraph 2 of the Labor contract Law, the democratic procedure for an employer to formulate or amend rules and regulations is divided into the following steps: (I) the convening of a congress of the staff and workers or a general meeting of the staff and workers; Regarding the relevant work processes and requirements of the workers' congress, some provinces and cities have promulgated regulations applicable to their provinces and cities. Now, taking the Beijing area as an example, referring to the "Regulations on Democratic Management of Enterprises" and the "Beijing Municipal Democratic Management of Enterprises and Workers' Congress (Interim) Measures", the relevant work processes and requirements of the Workers' Congress are summarized as follows: 1. Staff representatives (1) Any employee who enjoys political rights in accordance with the law and has established labor relations with the enterprise may be elected as an employee representative. (2) The employee representatives of the enterprise workers' congress should include employees, scientific and technological personnel, management personnel and other employees; the management personnel of enterprises above the middle level shall not exceed 20%; young people, female employees, and labor dispatch employees should account for a certain proportion. (3) The employee representatives implement a permanent system, which is generally re-elected every three to five years. Small enterprises with greater employee mobility can be re-elected once a year according to the actual situation of the enterprise, and can be re-elected. 2. Organizational structure and working procedures of the workers' congress (1) Large and medium-sized enterprises should implement the system of workers' congress. The minimum number of representatives shall not be less than 30; Enterprises with less than 100 employees may implement the system of workers' assembly. Workers' congresses are held at least twice a year for three to five years. Large enterprises are held at least once a year. Each meeting must be attended by more than 2/3 staff representatives before it can be held. (2) Presidium of the Congress. The members of the presidium shall be selected from the staff representatives, and there shall be a certain proportion at all levels. Among them, no more than half of the middle-level and above management personnel shall be selected. The election procedures for the members of the presidium: 1. The candidates for the presidium shall be recommend by the staff delegations (groups) according to the prescribed quota; 2. A meeting of the heads of the delegation (group) shall be held to fully deliberate and put forward the list of candidates; 3. At the preparatory meeting of the workers' Congress, the candidates shall be elected by secret ballot. Responsibilities of the presidium of the workers' congress: 1. Preside over the workers' congress and organize various activities during the congress; 2. Determine the topics of the congress; 3. Draft resolutions of the congress; 4. Deal with other issues that occur during the congress. (3) Special Working Group (Committee) of the Workers' Congress The special working group (committee) is a regular office under the Workers' Congress according to the actual work and needs of each unit. Such as: proposal group, operation management group, safety production group, employee insurance and welfare group, financial review group, rules and regulations supervision group, equal consultation group, democratic appraisal group, etc. The members of the special working group shall be nominated among the staff representatives, which shall be approved by the workers' Congress. If the work needs, non staff representatives with certain business expertise may be employed. The main person in charge of the enterprise department should not be the leader of the counterpart special working group. The tasks of the special working group: 1. Before the meeting, collect and summarize employee proposals; 2. After the meeting, check and supervise the implementation of the resolutions and proposals of the conference, and study and deal with issues within the scope of the group's responsibilities; 3. Handle the authorization of the workers' congress Other matters assigned; 4. Report to the workers' congress according to regulations. (4) Convening of the Workers' Congress The preparatory meeting of the workers' congress: 1. The preparatory meeting must be held before the workers' congress is held, and the preparatory meeting of the workers' congress shall be presided over by the presidium; 2. Before the preparatory meeting is held, the report to the workers' congress and all documents and materials that need to be discussed and approved by the workers' congress shall be sent to the workers' representatives at least 7 days in advance to solicit opinions and solicit proposals from the workers' representatives. 3. The trade union and all staff delegations (groups), comprehensively sort out the proposals of the Congress and submit them to the presidium of the Congress for study and decision; 4. Convene a preparatory meeting of the Congress, adopt the agenda and work report of the Congress, and deal with various matters that should be resolved before the Congress. Workers' Congress Meeting: Convene a formal meeting of the Workers' Congress to discuss, adopt and decide on various topics of the meeting and make resolutions of the Congress. (5) Resolutions of the Workers' Congress: 1. Resolutions and decisions made by the Workers' Congress within its scope of functions and powers have legal effect and cannot be modified without the consent of the Workers' Congress; 2. If it is really necessary to modify, it must be submitted to the Workers' Congress for reconsideration and can only be implemented with the consent of the majority of staff representatives. (6) Joint meeting of heads of staff delegations (groups). When the workers' congress is not in session, the joint meeting of the heads of the staff delegation (group) temporarily deals with certain important issues that need to be resolved urgently by the enterprise. The specific requirements are as follows: 1. The members of the joint meeting are composed of the head of the staff delegation (group), the main person in charge of the party and government of the enterprise, and the person in charge of the special group of the workers' Congress; 2. The decision made by the joint meeting shall be confirmed by the next workers' Congress and report the implementation. (II) to discuss the system to be designated or modified with the staff representatives or all staff; (III) allowing staff or staff representatives to put forward proposals and opinions on the draft of formulating or revising the system; The final text shall be determined (IV) consultation with the trade union or employee representatives on an equal footing. The rules and regulations (V) be publicized or informed to the workers. There are many methods that employers can adopt to publicize or inform. The common methods are as follows: 1. Issue the employee handbook and sign for it; 2. Circulate and sign the rules and regulations; 3, rules and regulations unified training and study, keep training materials and sign-in credentials; 4, the company network publicity, and inform in the labor contract; 5. E-mail notification. 4. other considerations related to the implementation of democratic procedures 1. The contents of the rules and regulations shall be lawful and compliant. According to Article 4 of the Explanation on Certain Provisions of the Labor Law and Article 50 of the Interpretation (I) of the Supreme People's Court on the Application of Laws in the Trial of Labor Dispute Cases, the rules and regulations of the employer shall abide by laws, regulations, rules and policies. The content of the rules and regulations should be reasonable. The law does not clearly stipulate the standard of reasonable determination. Whether it is reasonable or not mainly belongs to the category of judicial discretion, which needs to be determined according to the specific situation. In this regard, it should be based on the principle of fairness and whether it is in line with the general evaluation criteria of normal people, taking into account the type of company, size, characteristics of the job, the nature of the behavior of workers and the number of violations of the rules and regulations, violations of the rules and regulations to the company's losses and other factors to judge whether the rules and regulations are reasonable. 3, the content of the rules and regulations should be consistent with the labor contract or collective contract agreement. According to Article 50 of the Interpretation (I) of the Supreme People's Court on the Application of Laws in the Trial of Labor Dispute Cases, if the internal rules and regulations formulated by the employer are inconsistent with the contents of the collective contract or labor contract, and the laborer requests that the contract be applied first, the people The court shall support it. Therefore, it is recommended that the content of the rules and regulations be consistent with the labor contract or collective contract. 4. Preservation of evidence of the fulfilment of democratic procedures In order to prove that democratic procedures have been fulfilled, enterprises need to keep the following written materials: meeting minutes, meeting minutes, sign-in sheets, or audio and video recordings of the whole meeting, e-mails, etc.

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