China: PRC Labour Law Update – What Is New In 2017? (Chinese)

Last Updated: 2 February 2017
Article by Richard Bell and Victor Yang

简介

2017年1月1日,根据中华人民共和国劳动法起草的两套新规定正式生效:

  1. 《重大劳动保障违法行为社会公布办法》 (以下简称《公布办法》)
  2. 《企业劳动保障守法诚信等级评价办法》(以下简称《评价办法》)

这两套新规定旨在全面改善各行业劳动者的劳动保障。下文将讨论这些规定的影响。

主要内容

一.《重大劳动保障违法行为社会公布办法》

《公布办法》由人力资源和社会保障部(英文简称MHRSS)监管,对严重违反中华人民共和国劳动法的用人单位进行点名和曝光。《公布办法》列出七类重大劳动保障违法行为,包括:

  1. 克扣、无故拖欠劳动者劳动报酬,数额较大的;拒不支付劳动报酬,依法移送司法机关追究刑事责任的;
  2. 不依法参加社会保险或者不依法缴纳社会保险费,情节严重的;
  3. 违反工作时间和休息休假规定,情节严重的;
  4. 违反女职工和未成年工特殊劳动保护规定,情节严重的;
  5. 违反禁止使用童工规定的;
  6. 因劳动保障违法行为造成严重不良社会影响的;
  7. 其他重大劳动保障违法行为。

《公布办法》明确,向社会公布重大劳动保障违法行为,应当列明下列事项:

  1. 违法主体全称;
  2. 用人单位的统一社会信用代码(或者注册号)及注册地址
  3. 用人单位的法定代表人或者负责人姓名;
  4. 主要违法事实; 以及
  5. 相关处理情况。

但涉及国家秘密、商业秘密以及个人隐私的信息不得公布。

就公布途径和频次,《公布办法》明确,应当在人社行政部门门户网站公布,并在本行政区域主要报刊、电视等媒体予以公布。地市级、县级人社行政部门对本辖区发生的重大劳动保障违法行为每季度向社会公布一次,人社部和省级人社行政部门每半年向社会公布一次重大劳动保障违法行为。

二.《企业劳动保障守法诚信等级评价办法》

《评分办法》同样由人力资源和社会保障部门监管,是对用人单位遵守劳动法的情况进行评价的一套评分系统。该《评分办法》将基于以下9个标准进行评分:

  1. 制定内部劳动保障规章制度的情况;
  2. 与劳动者订立劳动合同的情况;
  3. 遵守劳务派遣规定的情况;
  4. 遵守禁止使用童工规定的情况;
  5. 遵守女职工和未成年工特殊劳动保护规定的情况;
  6. 遵守工作时间和休息休假规定的情况;
  7. 支付劳动者工资和执行最低工资标准的情况;
  8. 参加各项社会保险和缴纳社会保险费的情况;
  9. 其他遵守劳动保障法律、法规和规章的情况。

根据这些标准,对用人单位给出A、B、C三个等级的评分。不同的评分最终也将构成对于用人单位不同程度的监督管理。对A级用人单位,人力资源社会保障行政部门将减少劳动保障监察日常巡视检查频次;对B级用人单位,增加劳动保障监察日常巡视检查频次,直至其改正任何违法行为;对C级用人单位,将列入劳动保障监察重点对象,强化劳动保障监察日常巡视检查直至其改正所有违法行为。同时,对于C级用人单位,人力资源社会保障行政部门也将对其主要负责人(如法定代表人、首席执行官或总经理)进行约谈,敦促其采取必要的改正措施以遵守劳动保障法律、法规和规章。

企业劳动保障守法诚信等级评价情况将以适当方式告知用人单位,并归入企业劳动保障守法诚信档案。今后,人社部门将与工商、金融、住房城乡建设、税务等部门和工会组织建立信用信息交换共享机制,对企业实行守信联合激励和失信联合惩戒。

简评

这些新规定旨在通过对违反法律的用人单位进行"点名和曝光",并且根据用人单位遵守法律的程度来评级,以确保用人单位遵守中国劳动法和法规。

《公布办法》和《评价办法》有一个共同的特征就是他们的措辞过于笼统,不够规范。举例来说,在《公布办法》中,并没有明确说明何为"严重违法"。"严重违法"是指一次重大的违法行为(如违反健康和安全的标准而导致的火灾)还是指一系列小的违法行为(如不完整的劳动合同)呢?因此,很难预测这些法规将产生多大的影响。用人单位只能持观望态度,根据人社部对法规的实际应用情况来调整内部政策。

根据即将实施的新规定,建议用人单位应确保:

  1. 拥有一套完善的内部规章制度,且已分发给所有雇员;
  2. 所有劳动合同均正确签署,员工手册已更新。用人单位还应确保员工手册的最新版本已分发给所有雇员并有雇员签名;
  3. 如果雇员通过劳务派遣机构聘用,确保该劳务派遣机构的文件正常有序且根据法规实时更新;
  4. 符合劳动法的规定,特别是针对:
    1. 妇女和儿童;
    2. 工作时间,休息和休假;
    3. 最低工资(特别是通常会以最低工资雇佣年轻员工的零售业和餐饮业)
  5. 雇员的工资单正确且所有按照规定应该支付的权益和福利已全部支付;
  6. 按时缴纳社会保险费用。

诚然,防患于未然比亡羊补牢更为重要。只要用人单位确保内务正常有序,且完全遵守劳动法的相关规定,就不必担心《公布办法》和《评价办法》会带来任何影响。

PRC Labour Law Update – What Is New In 2017? (Chinese)

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