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China Legal Update – China Labor and Employment Law Newsletter

立法动态 Legislative Updates

☞国务院办公厅发布《关于加强外国人永久居留服务管理的意见》

国务院办公厅于2016年2月18日发布《关于加强外国人永久居留服务管理的意见》(下称“《意见》”)。该《意见》主要提出要推动建立以市场为导向的外籍人才永久居留申请标准,进一步便利外籍人才申请永久居留。《意见》还提出要调整各类永久居留申请情形,放宽优秀留学生等在华工作限制,扩大签发对象范围,使更多在华工作的外国人有资格申请永久居留。该《意见》同时还进一步明确了永久居留外国人在出入境、就业、购房、办理金融业务、申领驾照、子女入学、交通出行、住宿登记、社会保险等方面可以享受与中国公民的同等待遇。

General Office of the State Council Releases the Opinions on Strengthening the Management of Permanent Residence Service for Foreigners

On February 18, 2016, the General Office of the State Council released the Opinions on Strengthening the Management of Permanent Residence Service for Foreigners(hereinafter referred to as the “Opinions”).  The Opinions propose to promote the establishment of market-oriented criteria for foreign talents applying for permanent residence, and further facilitate the application for permanent residence by foreign talents.  The Opinions also propose to adjust the various conditions for application for permanent residence by foreign talents, relax the restrictions on excellent foreign students working in China and expand the scope of foreigners who are eligible for the permit, so that more foreigners who are working in China will become eligible to apply for permanent residence.  Meanwhile, the Opinions also clarify that foreigners with permanent residence may enjoy equal treatment with Chinese citizens in respect of exit and entry, employment, house purchasing, conducting financial business, application for driving licensing, children’s enrollment in schools, transportation, accommodation registration and social insurance etc.

☞人力资源和社会保障部发布关于执行《工伤保险条例》若干问题的意见(二)

人力资源和社会保障部于2016年3月28日发布了关于执行《工伤保险条例》若干问题的意见(二)(下称“《意见》”)。该《意见》对于《工伤保险条例》实施过程中遇到的问题作出了进一步的规定。例如针对许多公司注册地和生产经营地不在同一统筹地区的情况,该意见规定了原则上用人单位应在注册地为职工参加工伤保险;未在注册地参加工伤保险的职工,可由用人单位在生产经营地为其参加工伤保险。并强调了劳务派遣单位跨地区派遣劳动者,应根据《劳务派遣暂行规定》,也即在用工单位所在地为被派遣劳动者参加工伤保险。

Ministry of Human Resources and Social Security Releases Opinions on Certain Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (II)

On March 28, 2016, the Ministry of Human Resources and Social Security released the Opinions on Certain Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (II) (hereinafter referred to as the “Opinions”).  The Opinions provide further guidance on issues encountered during the implementation of the Regulations on Work-related Injury Insurance.  For instance, in terms of many companies which operate their business in localities other than those of their registration, the Opinions provide that in principle the employers shall make contributions of the work-related injury insurance in the locality where they are registered.  In the event that the employees are not enrolled in the work-related injury insurance in the locality where the employers are registered, the employers shall enroll their employees in the work-related injury insurance in the locality where they operate their business.  The Opinions also emphasize that where a labor dispatching company dispatches employees to a locality outside its place of registration, it shall follow the Interim Provisions on Labor Dispatching and enroll the dispatched employees in work-related injury insurance in the locality where the employer in fact are located.
☞经修订的《上海市人口与计划生育条例》于2016年3月1日正式实施

2016年2月23日上海市人民代表大会常务委员会作出《关于修改〈上海市人口与计划生育条例〉的决定》(下称“经修订条例”)。根据该经修订条例,符合法律规定结婚的公民,除享受国家规定的婚假外,增加婚假七天。合法生育的夫妻,女方除享受国家规定的产假外,还可以再享受生育假三十天,男方享受配偶陪产假十天。

The Amended Regulations of Shanghai Municipality on Population and Family Planning became effective on March 1, 2016

On February 23, 2016, the Standing Committee of Shanghai Municipality People’s Congress adopted the Decision on Revising the Regulations of Shanghai Municipality on Population and Family Planning (hereinafter referred to as the “Amended Regulations”).  According to the Amended Regulations, citizens who get married in compliance with the laws shall have an additional 7-day leave besides the nuptial leave provided for by the legislation at the state level.  As regards a married couple that gives birth in compliance with the laws and regulations, the female shall be entitled to an additional 30-day leave for giving birth in addition to the maternity leave provided for by the legislation at the state level, and the male shall be entitled to a 10-day paternity leave.
☞经修订的《北京市人口与计划生育条例》于2016年3月24日正式实施

2016年3月24日北京市人民代表大会常务委员会作出《关于修改<北京市人口与计划生育条例>的决定》(下称“经修订条例”)。根据该经修订条例,依法办理结婚登记的夫妻,除享受国家规定的婚假外,均可增加假期七天。女职工按规定生育的,女方除享受国家规定的产假外,享受生育奖励假三十天,其配偶享受陪产假十五天。此外,女职工经所在单位同意,可以再增加假期一至三个月。

The Amended Regulations of Beijing Municipality on Population and Family Planning became effective on March 24, 2016

On March 24, 2016, the Standing Committee of Beijing Municipality People’s Congress adopted the Decision on Revising the Regulations of Beijing Municipality on Population and Family Planning (hereinafter referred to as the “Amended Regulations”).  According to the Amended Regulations, couples whose marriages are registered in compliance with the laws shall have an additional 7-day leave besides the nuptial leave provided for by the legislation at the state level.  As regards a female employee that gives birth in compliance with the laws and regulations, she shall be entitled to an additional 30-day leave for giving birth in addition to the maternity leave provided for by the legislation at the state level, and the male shall be entitled to a 15-day paternity leave.  Furthermore, subject to her employer’s approval, the female employee could enjoy another 1 to 3 months of leave.
☞经修订的《江苏省人口与计划生育条例》明确国家法定休假日不计入婚假、产假

2016年3月30日江苏省人民代表大会常务委员会做出《关于修改〈江苏省人口与计划生育条例〉的决定》(下称“经修订条例”)。该经修订条例已于同日生效。根据该经修订条例,依法办理结婚登记的夫妻可在享受国家规定婚假的基础上,延长婚假十天。并且自2016年1月1日起,符合该经修订条例生育子女的夫妻,女方可在国家规定产假的基础上,延长产假三十天,男方享受护理假十五天。该经修订条例明确指出,国家法定休假日不计入前述的婚假及产假。

The Amended Regulations of Jiangsu Province on Population and Family Planning clarify that the national holidays are not included in the nuptial vacation or maternity leave.

On March 30, 2016, the Standing Committee of Jiangsu Province People’s Congress adopted the Decision on Revising the Regulations of Jiangsu Province on Population and Family Planning (hereinafter referred to as the “Amended Regulations”).  The Amended Regulations became effective on the same day.  According to the Amended Regulations, couples whose marriages are registered in compliance with the laws shall have an additional 10-day leave besides the nuptial leave provided for by the legislation at the state level.  Furthermore, since January 1, 2016, as regards a married couple that gives birth in compliance with this Amended Regulations, the female shall be entitled to an additional 30-day leave for giving birth in addition to the maternity leave provided for by the legislation at the state level, and the male shall be entitled to 15-day paternity leave.  The Amended Regulations clarify that the national holidays are not included in the nuptial or maternity leave aforementioned.
☞深圳市人力资源和社会保障局发布关于印发《深圳市建筑施工企业参加工伤保险管理办法》的通知

2016年3月14日,深圳市人力资源和社会保障局印发《深圳市建筑施工企业参加工伤保险管理办法》(下称“《管理办法》”),推行按建设项目参加工伤保险的方式,切实维护建筑业职工工伤保险权益。该《管理办法》提出建筑施工企业对建设项目使用的职工,不能按用人单位参加工伤保险的,应当按照该《管理办法》的规定执行,按建设项目参加工伤保险。建设单位在办理施工许可手续时,应当提交建设项目工伤保险参保的证明材料,作为保证工程施工安全的具体措施之一;施工安全措施未落实的项目,住房建设主管部门不予核发施工许可证。

Notice of Shenzhen Municipality Human Resources and Social Security Bureau on Printing and Distributing the Measures of Shenzhen Municipality for the Administration of the Enrollment of Construction Enterprises in the Work-related Injury Insurance

On March 14, 2016, Shenzhen Municipality Human Resources and Social Security Bureau promulgated the Measures of Shenzhen Municipality for the Administration of the Enrollment of Construction Enterprises in the Work-related Injury Insurance (hereinafter referred to as the “Administration Measures”), to promote enrollment in work-related injury insurance on the basis of construction projects and effectively protect the rights and interests of workers in construction industry with respect to the work-related injury insurance.  The Administration Measures provide that if a construction enterprise itself, as an employing entity, cannot enroll the employees working on a construction project in the work-related injury insurance, then such employees shall be enrolled in the work-related injury insurance on the basis of the construction projects according to the Administration Measures.  When the developer applies for the construction permit, it shall submit documents to prove that the construction project has enrolled in the work-related injury insurance, which is regarded as a specific measure to ensure the safety of the construction project; Department in charge of housing development will not grant construction permits to the developer of a construction project that fails to implement the safety measures.

案例介绍Case Study

 

男员工请假为二胎,用人单位以不符合公司请假制度为由解除劳动合同被判违法

 

An employer was ruled wrongful termination for terminating a male employee on the ground that his asking for paternity leave for his second child in violation of the attendance rules of the company.

☞案情简介
涂某自2006年5月4日起在A公司工作,双方最后一份劳动合同约定的工作时间为2012年1月1日至2016年12月31日。

2013年7月22日下午将下班时,涂某接到妻子将分娩的电话而要求请假回家陪护妻子,并写好了《请假条》,将工作移交给了同事,主管唐某签名同意。在主管签名同意后,涂某想找部门经理陈某批假,因陈某当时不在且快到下班时间,其就电话告知陈某妻子将要分娩,自己要休陪产假,但未明确请假天数。陈某在电话里同意后,涂某委托同事将请假条转交给陈某。之后,涂某于2013年7月30日上午提前回公司上班。由于7月27、28日为周末休息日,涂某实际请假时间为5天(23日、24日、25日、26日、29日)。涂某回公司上班后,又补写了请假5天的《请假条》,主管唐某签名确认。然而,涂某的请假问题,未能取得有权批准的总经理的书面同意。

2013年8月6日,A公司作出《处罚通告》,通告依照《中华人民共和国劳动合同法》第三十九条第(二)项“严重违反用人单位的规章制度的”的规定,以涂某连续旷工5天为由,与涂某解除了劳动合同关系。

涂某承认阅读、知晓A公司的规章制度和劳动纪律。根据《规章制度》的请假规则:员工请假3天以内(含3天),必须提前一天办理请假手续。遇紧急情况未来得及事先请假者,必须在用假当天12点之前通知部门领导,得到批准。并在假期结束后的第一个出勤日补办请假手续。员工请假5天以上的,必须提前一周申请,以便工作安排。员工请假必须将自己所负责的业务交接给工作代理人,以保障公司的正常运作。员工请3天(包括3天)以内的假期由各部门经理审批;3天以上的假期须将请假单上报行政人事部审核,由总经理审批。

Factual Summary
Mr. Tu started working in Company A since May 4, 2006.  The term of the last employment contract between Mr. Tu and Company A is from January 1, 2012 to December 31, 2016.

In the afternoon of July 22, 2013, when Mr. Tu was about to go off work, he received a call informing him that his wife would soon give birth.  He asked for leave to go home and accompany his wife, prepared a written request for leave and handed over his work to his colleague.  His supervisor, Mr. Tang, approved his request for leave by signing.  Mr. Tu then went to Mr. Chen, the manager of the department, to approve his request for leave.  However, Mr. Chen was not around and it was near the close of business.  Hence, he called and informed Mr. Chen that his wife would soon give birth and he wanted to ask for paternity leave, without specifying number of days for leave though.  Mr. Chen consented to his request on the call and Mr. Tu asked his colleague to pass on his written request for leave to Mr. Chen.  Afterwards, Mr. Tu came back to work on July 30, 2013.  Because July 27 and July 28 are weekends, Mr. Tu was in fact on leave for five days (i.e., July 23, July 24, July 25, July 26, July 29).  After Mr. Tu was back he resubmitted a written request for leave for five days and his supervisor, Mr. Tang, approved the request by signing.  However, Mr. Tu’s request for leave was not approved in writing by the general manager who had the approving authority.

On August 6, 2013, Company A issued a Penalty Notice which provided that Mr. Tu’s employment relationship with the company was terminated due to his absenteeism for five consecutive days according to Article 39(2) of the PRC Labor Contract Law, i.e., serious violation of the rules and regulations of the employer.

Mr. Tu acknowledged that he had read and was aware of the company’s rules and regulations and labor disciplines.  According to the company’s policy on attendance and leave, an employee shall go through the application procedure one day prior if the intended leave is less than three days (inclusive).  In case of any emergency where an employee does not have enough time to go through the application procedure in advance, he/she shall notify the departmental head before 12:00 at noon on the first day of leave and get the approval subsequently.  In addition, he/she shall go through the application procedure on the first day when he/she is back to work.  In the event that an employee asks for leave for over five days, the employee shall submit a one-week prior application in advance so as to facilitate the work arrangement.  The employee shall hand over his or her work to a work agent to ensure the normal operation of the company.  Employee’s request for leave for less than three days (inclusive) shall be approved by the managers of each department.  Employee’s request for leave for more than three days shall be submitted to the Administration and HR department for review and be approved by the general manager.

☞审理结果
一、二审法院认为:涂某在2013年7月22日下午将要下班的时候,接到电话获知妻子要分娩,作为丈夫请假回家陪护、照顾妻子,属人之常情。其次,由于妻子的分娩时间很难提前准确预知,涂某未能按照A公司的规定,提前一周办好请假手续,系情有可原。再次,涂某已经履行了一定的请假手续,只是没有按照A公司规章制度的规定完成整个请假程序。最后,公司主张曾明确告知涂某公司只批准其一天假期,超出3天(含)的假期必须提前经总经理批示才可休假,否则作旷工处理。但是公司的请假制度规定的是3天以上的假期(不含3天),才须将请假单上报行政人事部审核,由总经理审批。另外,在本案的情形下,A公司只批准涂某一天假期显然过于苛刻。

综上,法院认为A公司以涂某无故旷工为由解除其劳动合同,依据不充分,A公司依法应支付涂某解除劳动合同赔偿金。

Outcome of the Trial

The courts of first and second instance held that: when Mr. Tu received a call and was informed that his wife was about to give birth in the afternoon of July 22, 2013 when he was about to go off work, it was an action out of his human nature that he asked for leave to go home to accompany and look after his wife.  Secondly, since it was very hard to accurately predict when his wife would give birth to their baby, it is excusable that Mr. Tu failed to follow the regulations of Company A to apply for leave one week in advance.  Furthermore, Mr. Tu performed certain procedure for applying for leave, and he merely failed to go through the whole procedure for applying for leave according to the internal regulations of Company A.  At last, the company claimed that Mr. Tu was explicitly informed that he was only allowed to take an emergency leave for one day, and if he took further leave for more than three days (inclusive) without the approval from the general manager, he would be deemed as absent from work.  However, Company A’s regulations on employee attendance stipulates that only employee’s request for leave of more than three days shall be submitted to the Administration and HR department for review and be approved by the general manager.  Moreover, given the circumstances in the present case, obviously it would be too harsh for Mr. Tu if Company A only approved his leave for one day.

In conclusion, the courts held that Company A lacked sufficient ground to terminate the employment contract with Mr. Tu on the basis of his absence from work.  Company A is liable for compensation to Mr. Tu for such termination.

☞分析

《最高人民法院关于审理劳动争议案件适用法律若干问题的解释》第十九条规定:“用人单位根据《劳动法》第四条之规定,通过民主程序制定的规章制度,不违反国家法律、行政法规及政策规定,并已向劳动者公示的,可以作为人民法院审理劳动争议案件的依据。”本案中,A公司的相关规章制度,不违反法律、行政法规及政策规定,且涂某也承认阅读、知晓该制度和劳动纪律,那么该相关规章制度即履行了公示手续,可以作为本案处理的依据。

但是,法院在本案中主要考虑的是依据该规章制度,解除涂某劳动合同的合理性。考虑到涂某是因为妻子分娩而临时请假,且尽己可能地找主管调整了工作,做好工作移交,主管也对他的请假行为签字认可。虽然没有根据公司规章制度的要求,提前一周申请,并得到总经理的批准,但涂某已经通过电话向部门经理请假,并委托同事将请假条交给了部门经理。所以法院认为涂某已经履行了一定的请假手续,因此综合而言,认定不属于无故旷工。

我们认为公司在规章制度的制定过程中,除了注意履行一定的公示手续以外,需要考虑规章制度的合理性。例如在请假制度的规定中,应尽可能规定完善,并保持公司规章制度、假期申请单、及内部操作上的一致性,并应明确紧急情况的事后补充程序,以避免类似本案的有制度而无法执行情况的出现。

 
Analysis

Article 19 of the Interpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law on Cases Involving Labor Disputes provides that the rules and regulations formulated by an employer by way of democratic procedures and in accordance with the provisions of Article 4 of the Labor Law may be taken as a basis for a people’s court conducting trial over a labor dispute case, provided that such rules and regulations do not violate the laws, administrative regulations and policies of the State and have been publicized to its employees.  In this case, the relevant rules and regulations of Company A do not violate the regulations of the laws, administrative regulations and policies of the State, and Mr. Tu acknowledged that he had read and was aware of such regulations and labor disciplines.  This means that such rules and regulations have been publicized, and therefore could be taken as the basis to try this case.

However, what the court in this case mainly reasoned is the reasonableness of the termination of Mr. Tu’s employment contract in accordance with such rules and regulations.  Considering that the reason why Mr. Tu asked for leave with a short notice was that his wife was about to give birth, Mr. Tu has tried as much as possible to find his supervisor to adjust and hand over this work.  The supervisor also approved his leave request by signing.  Although Mr. Tu failed to submit a one-week prior application and obtain the approval from the general manager according to the rules and regulations of the company, he verbally explained to and applied with the manager of the department via phone and also asked his colleagues to pass on the written request to the manager.  Therefore, the courts held that Mr. Tu had performed, to a reasonable extent, certain application procedure for taking leave.  As such, he should not be deemed as absent from work for no reasons.

We are of the view that during the formulation of its rules and regulations, in addition to going through necessary publication formalities, a company shall also take into consideration the reasonableness of its rules and regulations.  For instance, the rules on taking leave shall be completed and perfected as much as possible to ensure the consistency among the rules and regulations, application form for leave and implementation, and shall specify the procedure to follow as a remedy after occurrence of emergencies so as to avoid the circumstances in this case where the employer was unable to implement the existing rules.

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