Contents
Spotlight on News
- Beijing: Official of the Bureau of Policies and Regulations of the State-owned Assets Supervision and Administration Commission of the State Council Answers Questions from Journalists on the Measures for Compliance Management of Central Enterprises
- Shandong: Guaranteeing the Equal Employment Rights of COVID-19 Convalescents
Legislation Updates
1. Measures for Compliance Management of Central Enterprises will come into force on October 1, 2022
2. Regulations of Hunan Province Trade Union on Supervision of Labor Laws will come into force on December 1, 2022
Case Study
The employee terminated his Employment Contract on the grounds that the employer had not paid social insurance in full, his claim of the severance was not supported by Jiangsu court
Spotlight on News - Beijing: Official of the Bureau of Policies and Regulations of the State-owned Assets Supervision and Administration Commission of the State Council Answers Questions from Journalists on the Measures for Compliance Management of Central Enterprises
Recently, the State-owned Assets Supervision and Administration Commission of the State Council (the "SASAC") published the Measures for Compliance Management of Central Enterprises (the "Measure"), and the official of the Bureau of Policies and Regulations of SASAC gave his opinion on the background of the drafting of the Measure, the comparison between the Measure and the Guidelines for Compliance Management of Central Enterprises (Trial), the background of setting up the "Chief Compliance Officer" position, specific provisions of the compliance investigation, compliance information construction etc. Next, the SASAC will promote the central enterprises to implement the requirements of the Measure actively, improve the mechanism, refine the work measures, and implement the tasks on the ground. - Shandong: Guaranteeing the Equal Employment Rights of COVID-19 Convalescents
On September 23, 2022, the Human Resources and Social Security Department of Shandong Province and Shandong High People’s Court Co-promulgated the Notice on Strengthening the Administrative and Judicial Linkage and Guaranteeing the Equal Employment Rights of COVID-19 Convalescents (the "Notice"). In response to the recent violation of the Labor Law and other relevant laws and regulations by some employers which restrict the candidates who had suffered from COVID-19 to seek employment, the Notice urges employers to strictly comply with relevant laws and regulations in the recruitment process, not to illegally query the nucleic acid test records of candidates, not to discriminate against candidates who had suffered from COVID-19 from the perspective of increasing supervision, strengthening the hearing of related cases, improving the coordination and cooperation mechanism of various departments, so as to maintain a stable employment environment and protect the legitimate and equal employment rights.
Legislation Updates - Measures for Compliance Management of Central Enterprises will come into force on October 1, 2022
On August 23, 2022, the SASAC promulgated the Measure, which will come into force on October 1, 2022. Based on the Guidelines for Compliance Management of Central Enterprises (Trial), the Measure proposes new requirements for compliance management of central enterprises in the aspects of principles, organization and responsibilities, regulations construction, operating mechanism, compliance culture, informatization construction and supervision and accountability. According to Article 18 of the Measure, central enterprises shall formulate specific regulations or guidelines for compliance management over key areas, such as anti- commercial bribery, labor and employment, and data protection. - Regulations of Hunan Province Trade Union on Supervision of Labor Laws will come into force on December 1, 2022
On September 26, 2022, the Standing Committee of Hunan Provincial People's Congress promulgated the Regulations of Hunan Province Trade Union on Supervision of Labor Laws (the "Regulation"), which will come into force on December 1, 2022. The Regulation lays emphasis on the organized supervision conducted by trade unions over employers' compliance with labor laws and regulations as well as protection of employees' legitimate rights and interests in accordance with the laws. Specific matters under supervision include but are not limited to the equality in employment, working hours and vacation, implementation of remuneration and social insurance. The Regulation aims to protect employees' legitimate rights and interests, build harmonious labor relations and promote economic and social development by means of mass supervision.
Case Study
The employee terminated his Employment Contract on the grounds that the employer had not paid social insurance in full, his claim of the severance was not supported by Jiangsu court
Facts
On December 26, 2015, the employee signed an Employment Contract with the employer with a monthly salary of CNY 10,000. On January 31, 2021, the employee resigned from the employer by mail, stating that “I decide to terminate my Employment Contract due to the company has not consulted with me, illegally changed my position, deprived me of the position of marketing director, not providing working conditions, and failed to pay social insurance premiums, violated Article 38 of the Labor Contract Law. The company should pay severance according to relevant regulations, make up the social insurance premiums and bear all losses caused to me.” On February 1, 2021, the employer received the mail and proceeded with the suspension process of social insurance.
Judge’s Viewpoint
Upon trial, the People's Court of Chongchuan District Nantong Jiangsu Province opined that in accordance with Articles 38 and 46 of the Labor Contract Law, where an employer fails to pay social insurance premiums for an employee, the employee shall have the right to unilaterally terminate the Employment Contract and require the employer to pay severance. However, the phrase "where an employer fails to pay social insurance premiums for an employee in accordance with the law" shall be interpreted as the circumstance where an employer fails to apply to the social security bureau for social insurance registration and pay the social insurance premiums for an employee, and shall not be interpreted as the circumstance where an employer has completed the social insurance registration for an employee but fails to pay social insurance premiums in full. Where an employee thinks that the employer fails to pay social insurance premiums for him/her in full and requests correction, he/she may seek remedies from the labor supervision department. The request for severance on the grounds that the employer fails to pay full social insurance premiums shall not be supported. The Intermediate People's Court of Nantong overruled the appeal of the employee side.