China: Ministry of Human Resources and Social Security: Reported Typical Cases of Violations Against Employment Rights of Employees
Authors: Carol Zhu and Lynsey Liu
Recently, the Ministry of Human Resources and Social Security of PRC, in coordination with relevant departments, has carried out special rectification of the human resources market in various regions, focusing on investigating and penalizing a batch of cases of false recruitment, discrimination in employment and illegal labour dispatch and other violations of the law. On October 18th, 2024, this batch of typical cases was publicized.
In one of the cases, a manpower agency in Shanghai published discriminatory recruitment information, specifically stating that “the number of employees from a certain place has been filled” and “employees from a certain place are not needed.” This restricted the employment of workers with a particular household registration, violating their rights to equal employment. In response to this illegal act of publishing discriminatory job advertisements, the local human resources and social security department in Shanghai ordered the manpower agency to rectify the situation within a specified period, remove the relevant job advertisements, and imposed an administrative penalty of CNY 5,000.
According to the Employment Services and Employment Management Regulations and Regulations for Human Resource Service Agencies, both human resource service agencies and employers are prohibited from including discriminatory content in their job advertisements. The local human resources and social security department has the authority to require human resource service agencies that violate these regulations to rectify their actions and may even impose fines.
Key Action Points
Under PRC Employment Contract Law, the employer could formulate its internal policies in accordance with law. If such policies involve the matters such as working hours, work discipline, etc., which have a direct impact on employees’ immediate rights and interests, the said policies shall be discussed by the employee representative congress or all employees, and then determined by the employer after consultation with the trade union or employee representatives. This process is known as “Democratic Procedures” within the context of China’s employment law.
The Opinions potentially elevate the requirements for Democratic Procedures. When it comes to matters affecting the vital interests of industrial workers, the necessary Democratic Procedures extend beyond simple consultation; they necessitate the approval of the employee representative congress. However, it remains to be seen how this requirement will be interpreted and applied in judicial practice and will require further close observation.
