CHINA Law and Practice Contributed by: Linda Liang, Piao Liu, Chutian Wang and Xiangbo Lv, King & Wood Mallesons
in 2021) further clarifies the status of a trade union, which is a voluntary organisation formed by employ - ees of their own free will. Trade unions have the general right to represent and protect the rights of employees. According to the Trade Union Law, specific rights of trade unions include but are not limited to: • monitoring employers’ violation of relevant policies, demanding that employers rectify any violations, and ensuring that the employees exercise their right to democratic management in accordance with the law; • assisting and guiding the employees in signing employment contracts, attending negotiation and signing collective contracts with the employers on behalf of the employees, and filing arbitration or cases on behalf of the employees; and • providing advice regarding the employers’ dispo - sition of employees and reviewing the reason for unilateral termination of employees. 6.2 Employee Representative Bodies Under PRC employment laws, employees can exer - cise their right to democratic management through the employee representatives’ congress, which has the right to inspect the daily operation of the employer and is responsible for representing the employees’ legal interests. The employee representatives shall be elected by employees; the specific proportion and number shall be determined in accordance with the implementation measures of the employee representatives’ congress of the enterprise, or determined by the enterprise through consultation with the trade union, but shall be no fewer than 30 people. 6.3 Collective Bargaining Agreements In most cases, employment terms and conditions are agreed and executed individually, but collective bar - gaining also takes place at both the enterprise level and the industry level. According to PRC employment laws, collective employment contracts shall be con - cluded between the employer and the trade union that represents employees (for an employer that has not established a trade union, the next higher-level
trade union shall guide the representatives elected by the employees to conclude a collective contract with the employer) in (i) matters relating to remuneration, working hours, rest and vacation/holidays, occupa - tional safety and health, insurance and welfare; or (ii) specialised collective contracts on matters relating to occupational safety and health, female employ - ees’ rights protection, salary adjustment mechanism, etc, while requiring that the draft be submitted to the employee representatives’ congress or all employees for discussion. Currently, most collective contracts are negotiated at the enterprise level, and collective con - tracts are more common in enterprises in the manu - facturing and retail industries. The collective contract shall be submitted to the labour administrative department after being concluded, and shall become effective after the lapse of 15 days from the date of receipt by the labour administrative depart - ment, unless any objections to the contract are raised. The PRC employment laws set strict limitations on employment relationship terminations, and there is no concept of “termination at will” for full-time employ - ees. The statutory grounds can be divided as follows. Non-Fault Termination Termination upon mutual agreement An employment contract may be terminated upon mutual agreement between the employer and the employee, and the employer is obliged to pay the employee the statutory severance. Unilateral termination by the employer An employer is entitled to unilaterally terminate the employment contract with 30 days’ prior written notice or one month’s salary in lieu, and with statu - tory severance pay, in the following circumstances: 7. Termination 7.1 Grounds for Termination • where an employee suffers from an illness or a non-work-related injury and is unable to undertake the original job or other job arranged for them by the employer following completion of the stipulated medical treatment period;
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