Contents
Spotlight on News
- The National Bureau of Statistics announced the per capita disposable income of urban residents nationwide in 2021, the lump-sum subsidy for the death triggered by the work-related accident in 2022 will be adjusted to CNY 948240 accordingly.
- Four Departments including the Ministry of Human Resources and Social Security conducted the second round of the administrative guidance to 11 platform enterprises including Meituan, Eleme and Didi aiming to protect the rights and interests of workers under New Employment Modes.
- The National Chief Procurators' (enlarged) Meeting further emphasized the implementation of the Supervision and Evaluation Mechanism of Enterprise Compliance.
- Shenzhen Municipal Bureau of Human Resources and Social Security has imposed administrative penalties on several HR service providers for contributing the social insurance on behalf of their clients.
Legislation Updates - The Trade Union Law was revised to provide more protection to the rights and interests of workers.
- The Rules for Public Security Organs in the Handling of Criminal Record Inquiry Work came into force, and employers can check the criminal records of their employees or candidates.
- The Civil Procedure Law was revised to speed up the process of resolving labor dispute cases.
Case Study
The HR of the company claimed double salary for failure to sign the employment contract, and the court upheld the claim of the HR on the ground that the HR could not sign the employment contract with herself on behalf of the company.
Spotlight on News - The National Bureau of Statistics announced the per capita disposable income of urban residents nationwide in 2021, the lump-sum subsidy for the death triggered by the work-related accident in 2022 will be adjusted to CNY 948240 accordingly
The National Bureau of Statistics released the Income and Consumption Expenditure of Residents in 2021 on January 17, 2022, which shows that in 2021, the per capita disposable income of residents nationwide reached CNY 35128, a nominal increase of 9.1% over the previous year, and an actual increase of 8.1% after deducting price factors. Among them, the per capita disposable income of urban residents nationwide was CNY 47412, increased by 8.2%, and actually increased 7.1% after deducting price factors. Pursuant to The Regulations on Work-related Injury Insurance, the standard for the lump-sum subsidy for the death triggered by the work-related accident shall be 20 times the per capita disposable income of urban residents nationwide in the preceding year. Therefore, the most updated figure in 2022 will be adjusted to CNY 948240 accordingly. - Four Departments including the Ministry of Human Resources and Social Security conducted the second round of the administrative guidance to 11 platform enterprises including Meituan, Eleme and Didi aiming to protect the rights and interests of workers under New Employment Modes
Recently, the Ministry of Human Resources and Social Security, the Ministry of Transport, the State Administration for Market Regulation and the All-China Federation of Trade Unions have conducted the second round of administrative guidance to 11 first-tier platform enterprises, including Meituan, Eleme, Didi, aiming to protect the rights and interests of workers under New Employment Modes. It is emphasized at the meeting that platform enterprises shall be fully and accurately in compliance with the requirements of policies, understand the in-depth demands of workers, constantly improve platform algorithms and labor rules, and then improve the system and mechanism for enterprises to protect workers’ rights and interests under new employment modes. - The National Chief Procurators' (enlarged) Meeting further emphasized the implementation of the Supervision and Evaluation Mechanism of Enterprise Compliance
The National Chief Procurators' (enlarged) Meeting was held in Beijing on January 17, 2022. It was mentioned at the meeting that depending on the different entities, the requirements for the compliance plans vary from each other. The Supreme People’s Procuratorate shall come up with a batch of Models of Compliance Management Rules and Typical Cases of Enterprise Compliance Rectification for large, medium, small and mini-enterprises as soon as possible to strengthen demonstration, regulation and guidance. - Shenzhen Municipal Bureau of Human Resources and Social Security has imposed administrative penalties on several HR service providers for contributing the social insurance on behalf of their clients
Recently, the official website of Shenzhen Municipal Bureau of Human Resources and Social Security has released a number of punishment cases against human resources services enterprises for their illegal contribution of social insurance, in which several well-known human resources services enterprises handle social insurance for unqualified personnel by means of fraud, falsification of evidentiary materials or other means. Apparently, following Beijing’s practice, the requirements for social insurance compliance are becoming more and more stringent nationwide, and the intensity of punishment is gradually increasing. Enterprises shall further pay attention to the legal risk brought by the social insurance non-compliance.
Legislation Updates - The Trade Union Law was revised to provide more protection to the rights and interests of workers
The 32nd session of the Standing Committee of the 13th National People's Congress completed the revision to the Trade Union Law on December 24, 2021. The newly revised Trade Union Law focuses on safeguarding the rights of workers under new employment modes, such as truck drivers, online car-hailing drivers, couriers and take-away food delivery clerks. Mr. Zhang Yong, deputy director of the Legislative Affairs Commission of the Standing Committee of the National People's Congress, said that this revision effectively strengthens the leadership of the China Communist Party on the work of trade unions, timely upgrades the effective experience and practices to legal provisions, enhances the political nature, advancement and mass character of trade union organizations, and can better play the role of trade unions in protecting the legitimate rights and interests of employees and serving the public. - The Rules for Public Security Organs in the Handling of Criminal Record Inquiry Work came into force, and employers can check the criminal records of their employees or candidates
The Rules for Public Security Organs in the Handling of Criminal Record Inquiry Work promulgated by the Ministry of Public Security came into force On December 31, 2021. Under the Rules, employers are eligible to check the criminal records of their employees or candidates if the employers comply with the provisions of the laws and administrative regulations regarding the prohibition of practice. The provisions of the Rules set up a series of procedures on how to check the criminal records, and provide a new way of background investigation and personnel management for employers, while setting up some restrictions on such right.
In combination with the relevant provisions of the Personal Information Protection Law, we believe that the following points need to be brought to the attention of employers: (1) the Rules specifies that employers can only check the criminal records of employees or employees to be recruited “if the employers comply with the provisions of laws and administrative regulations on the prohibition of employment practices”, the Rules does not apply to employees at all posts; (2) the personal consent is not required while checking the criminal records of an employee which comply with laws and administrative regulations on prohibition of employment practices. - The Civil Procedure Law was revised to speed up the process of resolving labor dispute cases
The Standing Committee of the 13th National People's Congress adopted the Decision of the Standing Committee of the National People's Congress on Revising the Civil Procedure Law of the People's Republic of China on December 24, 2021. The newly revised Civil Procedure Law was implemented on January 1, 2022. Seven new articles have been added, and 26 articles have been revised in this revision. And the revised contents mainly relate to the judicial confirmation, petty lawsuit procedures, application of the sole-judge system, online litigation rules, starting date for calculating the time limit of an enforcement application, electronic delivery etc. The newly revised Civil Procedure Law, based on the judicial practice in recent years, confirms the effectiveness of online court hearing and electronic delivery in law, further promotes the separation of complicated cases and simple ones, improves the efficiency of litigation, and may, to a certain extent, accelerate the time limit for labor dispute cases in some regions.
Case Study
The HR of the company claimed double salary for failure to sign the employment contract, and the court upheld the claim of the HR on the ground that the HR could not sign the employment contract with herself on behalf of the company.
Facts
In September 2017, Ms. Mo joined the company as a HR personnel, and responsible for the signing of employment contracts between the company and employees. Since joining the company, the company did not sign a written employment contract with Ms. Mo. In November 2017, the company fired Ms. Mo on the grounds that her behavior in the probation period did not meet the recruitment standard. After that, Ms. Mo applied for the labor arbitration and claimed double salary for without signing the employment contract and compensation for the wrongful termination.
Judge’s Viewpoint
With respect to the issue of double salary for failure to sign an employment contract, the court of appeal held that labor laws and regulations do not stipulate different provisions on signing employment contracts with this kind of employees (Human Resources Directors). Although Ms. Mo, as the HR personnel of the company, could sign employment contracts with other employees on behalf of the company, Ms. Mo could not sign the employment contract with herself on behalf of the company. For such kind of employees, the company shall arrange others to sign written employment contracts with them on behalf of the company. For the written employment contracts signed with these employees, the company shall also arrange others to keep them separately. Therefore, the company failed to prove that it had signed a written employment contract with Ms. Mo, and should pay double salary to Ms. Mo in accordance with the law.
Our Observation
Since HRDs are usually responsible for the execution of employment contracts, managing and using the official seals of companies, they have the right to sign employment contracts with other employees on behalf of companies. However, it is quite common cases that if HRDs do not sign the employment contract with companies, whether companies need to pay the double salary.
There is no standard opinion in judicial practice, but no matter which viewpoint the court holds, we believe it can be judged based on following aspects: 1. clarify the common process of signing employment contracts for other employees, such as how the HRD performs the approval procedures before signing; 2. clarify whether the HRD has requested the relevant leaders of the company to sign the employment contract with him/her within a reasonable period of time, or whether the HRD has fulfilled the common approval procedures for the signing of his/her own employment contract; 3. daily storage and use condition of the company's official seal, etc. We tend to believe that due to the particularity of the position and responsibilities of HRDs, if there is evidence that the failure to sign the employment contract is due to HRDs’ own reasons (such as the negligence of the approval procedures, etc.), the company should not pay the double salary; if the failure to sign the employment contract is due to the company's management loophole, the company should pay the double salary.