Regulations of Shanghai Municipality on Employees’ Representatives Conference

(Adopted at the 23^rd Session of the Standing Committee of the 13^th Shanghai Municipal

People’s Congress on December 23, 2010)

Chapter I  General Provisions

Article 1

With a view to safeguarding employees’ democratic rights and interests, building harmonious and stable labor relations, and promoting the co-development of employees, enterprises, public institutions, and non-governmental non-profit units, these Regulations are formulated in accordance with the Constitution of the People’s Republic of China, the Labor Law of the People’s Republic of China, the Trade Union Law of the People’s Republic of China, the Company Law of the People’s Republic of China, the Law of the People’s Republic of China on Employment Contracts, and other relevant laws and administrative regulations, and in the light of the actual circumstances of this Municipality.     

Article 2

These Regulations apply to the establishment and implementation of the employees’ representatives conference system by enterprises, public institutions and non-governmental non-profit units (hereinafter collectively referred to as the “enterprises and public institutions”) within the jurisdiction of this Municipality.

Article 3

Enterprises and public institutions shall establish the employees’ representatives conference system.

An enterprise or a public institution with a staff of 100 or more shall hold the employees’ representatives conference; and an enterprise or a public institution with a staff of fewer than 100 shall hold the general meeting of staff and workers as a rule. 

The employees’ representatives conference (or the general meeting of staff and workers, similarly hereinafter) is the basic form of democratic management by enterprises and public institutions, an important system of coordinating the labor relations, and an agency for employees to exercise their democratic rights of management.

For the employees’ representatives conference, democracy shall be given full play and the majority rule shall be observed.   

Article 4

Enterprises and public institutions shall safeguard the employees’ representatives conference exercising functions and powers according to law and ensure the employees’ enjoyment of the rights of information, participation, expression and supervision. 

Employees may participate in the democratic management of the enterprise or public institution via the employees’ representatives conference according to law, support the lawful production, operation and management activities of the enterprise or public institution, and maintain their own legitimate rights and interests. 

Article 5

The trade union of an enterprise or of a public institution is the working body of its employees’ representatives conference and shall undertake the daily work of the employees’ representatives conference.

Article 6

The people’s governments at all levels of this Municipality, their competent departments of state assets, education, and public health, and relevant administrative departments of human resources and social security shall guide and urge enterprises and public institutions to implement the employees’ representatives conference system.  

Article 7

The superior trade union, the trade association and relevant syndication shall guide and help enterprises and public institutions to establish and improve the employees’ representatives conference system. 

Chapter II  Functions and Powers

Article 8

The employees’ representatives conference exercises the functions and powers of giving suggestions upon deliberation, approval upon deliberation, examination and supervision, democratic election, and democratic appraisal.    

Article 9

The following matters shall be reported to the employees’ representatives conference for its deliberation and for the suggestions to be made by representatives of the employees’ representatives conference (hereinafter referred to as the “employees’ representatives”):

1. the development planning, annual business management and important decisions of the enterprises or public institutions;

2. the formulation, revision or decision of the rules, regulations or important matters of the enterprise or public institution directly involving the employees’ immediate interests  

3. the collective bargaining between the trade union and the enterprise on the employees’ salary adjustment, economic layoffs, group labor disputes, and major potential accidents or occupational hazards found in the process of production;    

4. the work of the working body of the employees’ representatives conference, and the matters handled via consultation by the joint conference;

5. a state-owned or collectively-owned enterprise’s and their holding enterprises’ important matters including financial budget and final account, restructuring schemes, major reform measures, and filing for bankruptcy or dissolution; 

6. a public institution’s important matters including financial budget and final account, and major reform and restructuring schemes; and

7. other matters that shall be reported to the employees’ representatives conference as provided by laws and regulations or as determined via consultation between the enterprise or public institution and its trade union.

Article 10

The following matters shall be reported to the employees’ representatives conference for approval upon deliberation:

1. the draft collective contract involving matters of remuneration, working hours, rest and vacation, and insurance and welfare;

2. the special draft collective contract involving the mechanism of salary adjustment, the protection of women employees’ rights and interests, and labor safety and hygiene;

3. a state-owned or collectively-owned enterprise’s and their holding enterprises’ salary system, welfare system, labor and employment management system, employee education and training system, employee resettlement plan involved in reform and restructuring, and other important matters involving employees’ immediate interests;   

4. a public institution’s measures of employee appointment, assessment, reward and punishment, principles and measures of income distribution, welfare system for employees, employee resettlement plan involved in reform and restructuring, and other important matters involving employees’ immediate interests; and

5. other matters that shall be submitted to the employees’ representatives conference for approval upon deliberation as provided by laws and regulations or as determined via consultation between the enterprise or public institution and its trade union.

Article 11

The following matters shall be reported to the employees’ representatives conference and be subject to its examination and supervision:

1. the handling of the employees’ representatives conference’s proposals;

2. the implementation of important matters approved by the employees’ representatives conference upon deliberation;

3. the fulfillment of collective contracts and special collective contracts;

4. the implementation of labor safety and hygiene standards, the payment of social insurance premiums, and the extraction and use of employee training funds; and

5. other matters that shall be reported to the employees’ representatives conference and be subject to its examination and supervision as provided by laws and regulations or as determined via consultation between the enterprise or public institution and its trade union.

Article 12

The following personnel shall be elected democratically by the employees’ representatives conference:

1. members of the democratic management panel (commission);

2. employees’ representatives on the board of directors and on the board of supervisors; and

3. other personnel that shall be elected democratically by the employees’ representatives conference as provided by laws and regulations or as determined via consultation between the enterprise or public institution and its trade union. 

Article 13

The following personnel shall be subject to the democratic appraisal by the employees’ representatives conference:

1. employees’ representatives on the board of directors and on the board of supervisors;

2. senior managers of a state-owned or collectively-owned enterprise or their holding enterprises, the person in charge of a public institution, and other personnel that shall be subject to the democratic appraisal by the employees’ representatives conference according to relevant provisions of this Municipality; and

3. other personnel that shall be subject to the democratic appraisal by the employees’ representatives conference as provided by laws and regulations or as determined via consultation between the enterprise or public institution and its trade union. 

Chapter III  Employees’ Representatives

Article 14

Employees of an enterprise or a public institution may be elected as its employees’ representatives.

Employees’ representatives shall be elected democratically by the employees and the system of permanent tenure shall be implemented therefor. Employees’ representatives may continue to hold office when reelected, and may hold office until the expiration of the employees’ representatives conference.

Branch companies, branch institutes (schools), departments, teams or groups, and administrative or technical offices are generally electoral precincts for the election of employees’ representatives. Over two thirds of all the employees of an electoral precinct shall participate in the election, and a candidate may be elected only when he/she won affirmative votes of more than half of all the employees of the electoral precinct. The election result shall be made public.  

Article 15

Employees’ representatives shall be mainly made up of front-line employees. The proportion of middle and senior managers to all employees’ representatives shall not exceed 20%, but such proportion for a trans-regional or an inter-trade large-scale group enterprise may be increased appropriately. The proportion of women employees’ representatives shall generally match the proportion of women employees to all the employees of the unit.

The personnel directly engaged in corresponding professional work shall be the main part of employees’ representatives of an enterprise or a public institution in the field of education, science and technology, culture, and public health.

Article 16

The rights and interests of employees’ representatives:

1. the rights to elect and stand for election, and the rights of deliberation and voting on the employees’ representatives conference;

2. the rights of information, suggestion, participation and supervision of important matters involving the development of their own units and the employees’ rights and interests;

3. participating in activities such as training and inspection relevant to the performance of employees’ representatives’ duties; and

4. enjoying the due treatment for regular attendance when their production and working time is used for the performance of their duties.

Article 17

The obligations of employees’ representatives:

1. studying and publicizing relevant laws, regulations, and policies, improving their own qualities, enhancing their ability to participate in democratic management, and doing the best for their duties;

2. contacting employees of their electoral precinct, soliciting their opinions and suggestions, and expressing the employees’ will and requirements;

3. implementing the resolution of the employees’ representatives conference, and doing well various work allocated by the employees’ representatives conference;

4. notifying employees of their electoral precinct in a timely manner of their participation in the activities of the employees’ representatives conference and their performance of duties, and being subject to the latter’s appraisal and supervision; and

5. abiding by in an exemplary way the unit’s rules and regulations, and keeping commercial secrets.

Article 18

When there are vacancies of employees’ representatives, the original electoral precinct shall hold a by-election in a timely manner according to the provided democracy procedures. The by-election result shall be made public.

The dismissal of an employee’s representative for nonperformance without reason or inability of performance of his/her duties shall be approved by over half of all the employees of the original electoral precinct. 

Article 19

No organization’s or individual’s repression, obstruction and retaliation is allowed when employees’ representatives exercise their rights according to law.

Chapter IV  Organization System

Article 20

The number of employees’ representatives of the employees’ representatives conference of an enterprise or a public institution shall be determined according to the following provisions:

1. for the total number of employees from 100 to 3,000,  the base is 30 employees’ representatives, and the increased employees’ representatives shall not be fewer than five for every 100 increased employees;

2. for the total number of employees over 3,000, the number of employees’ representatives shall not be fewer than 175; and

3. for the total number of employees fewer than 100 and the employees’ representatives conference system being implemented, the number of employees’ representatives shall not be fewer than 30.

The employees’ representatives conference may set nonvoting delegates as needed. Nonvoting delegates have no right to vote or to stand for election.

Article 21

Each term of office of the employees’ representatives conference lasts from three to five years. If a term of office of the employees’ representatives conference needs to be extended, the extended time shall not exceed the limit of one year. 

The employees’ representatives conference shall meet at least once a year. A session of the employees’ representatives conference may be held if the enterprise or public institution, its trade union, or over one third of its employees’ representatives make a proposal therefor.

Article 22

The presidium elected by the employees’ representatives conference shall preside over the session, and handle relevant important issues during the session. The total number of the members of the presidium shall not be fewer than seven, of which the front-line employees’ representatives shall not be fewer than 50%. 

Article 23

The employees’ representatives conference may set up democratic management panels (commissions), which shall organize employees’ representatives to carry out special activities of democratic management and shall handle relevant matters allocated by the employees’ representatives conference. The person in charge of the panel (commission) shall be an employee’s representative. 

Article 24

During the inter-session of the employees’ representatives conference, the enterprise or public institution may hold a joint meeting of the employees’ representatives conference to handle via consultation the important matters that need to be handled in a timely manner (except for the matters that shall be submitted to the employees’ representatives conference for approval upon deliberation as provided by laws or regulations), and the result of settlement shall be reported at the next session of the employees’ representatives conference. 

The joint meeting shall be convened by the trade union and shall be attended by the leader of the employee delegate (representative group), the person in charge of the democratic management panel (commission), members of the presidium, and members of the trade union commission.

Article 25

Branch companies (factories) and branch institutes (schools) of an enterprise or of a public institution shall establish the employees’ representatives conference system, and shall exercise the employee rights of democratic management corresponding to their purview of management.  

Article 26

The expenditure of the employees’ representatives conference shall be disbursed from the management fees of the enterprise or public institution.

Chapter V  Rules of Procedures

Article 27

A session of the employees’ representatives conference cannot be held without the attendance of over two thirds of the employees’ representatives.

Article 28

The topics and agenda of a session of the employees’ representatives conference shall be determined by the enterprise or public institution and its trade union after consultation.

Article 29

The written materials to be submitted to the employees’ representatives conference for deliberation and vote upon deliberation shall be sent to the employees’ representatives seven days before the session of the employees’ representatives conference; the employee delegate (representative group) shall organize employees’ representatives to discuss such materials, and the trade union shall collect and sort out the opinions and suggestions of the employee delegate (representative group) in a timely manner. 

Upon sharp disagreement from the employees’ representatives on the important matters involving the employees’ immediate interests, the enterprise or public institution and the trade union shall submit the matter to the employees’ representatives conference for further deliberation after revision via consultation according to the employees’ opinions.

Article 30

The employees’ representatives conference shall adopt the mode of secret ballot for its approval of matters, and no matters may be approved without the affirmative votes of over half of the employees’ representatives.

Article 31

The matters and resolutions approved upon deliberation by the employees’ representatives conference shall be made public to the whole staff after the session of the employees’ representatives conference is closed.

Article 32

The trade union of an enterprise or of a public institution has the right to require the correction of the failure of submitting according to the statutory procedure the matters that shall be submitted to the employees’ representatives conference for deliberation as provided by laws and regulations. And the enterprise or public institution shall make the correction according to the requirements of the trade union. 

Upon failure to submit for approval after deliberation according to the statutory procedure the matters that shall be submitted to the employees’ representatives conference for approval as provided by laws or regulations, the decision made by the enterprise or public institution on such matter is not binding to its employees.   

Article 33

The matters approved by the employees’ representatives conference upon deliberation within its purview of power are binding to the corresponding unit and its whole staff, and shall not be altered without its re-deliberation.

Chapter VI  Working Body

Article 34

During the preparation and a session of the employees’ representatives conference, the trade union of the enterprise or of the public institution shall perform the following functions and duties:

1. organize and carry out the election, reshuffle, and training of employees’ representatives;

2. make good preparations for the documents of the employees’ representatives conference;

3. propose the recommended list of candidates for the presidium members of the employees’ representatives conference, of the democratic management panel (commission), and of employees’ representatives on the board of directors and on the board of supervisors;

4. carry out collective consultation on behalf of the employees with the enterprise or public institution to form the draft collective contracts, the special draft collective contracts, notes for drafting, and the report on collective consultation;

5. organize the employee delegate (representative group) to discuss before or during a session the matters submitted to the employees’ representatives conference for deliberation and vote upon deliberation, collect and sort up the opinions, and consult with the enterprise or public institution for revision; and

6. take charge of other preparatory and organizational work of the employees’ representatives conference.

Article 35

The trade union of an enterprise or of a public institution shall perform the following functions and duties during the inter-session of the employees’ representatives conference:

1. mobilize the employees to implement the resolutions of the employees’ representatives conference, and supervise the implementation of the resolutions and the handling of the proposals;

2. establish a liaison system with employees’ representatives, accept the employees’ representatives’ complaints and proposals, and safeguard their legitimate rights and interests;

3. organize the employees’ representatives and the democratic management panel (commission) to conduct daily democratic management activities such as making proposals, inspection tours, and quality assessment; and

4. fulfill other work allocated by the employees’ representatives conference.

Article 36

The trade union of an enterprise or of a public institution shall report relevant matters of a session to the trade union at the next higher level within seven working days after the closing of the session of the employees’ representatives conference.

Chapter VII  Regional and Industrial Employees’ Representatives Conference

Article 37

Enterprises within the same region such as in the same community, industrial park or commercial building may establish jointly a regional employees’ representatives conference. Enterprises with the same or similar business operations may establish jointly an industrial employees’ representatives conference.

The working body of a regional or an industrial employees’ representatives conference is the regional or industrial trade union.

Town/township people’s governments and sub-district offices shall push forward actively the establishment of regional and industrial employees’ representatives conference, and shall support and guarantee the normal operation of the employees’ representatives conference system.

Article 38

A regional or an industrial employees’ representatives conference exercises the following functions and powers:

1. listen to the report on the implementation of labor laws, regulations and policies in the region or industry, and the report on the status of labor relations in the region or industry, and give opinions and suggestions thereon;

2. deliberate the important matters that involve directly the employees’ immediate interests of enterprises in the region or industry, such as remuneration, working hours, rest and vacation, labor safety and hygiene, insurance and welfare, employee training, and labor quota;

3. approve upon deliberation the regional or industrial draft collective contracts and of the special draft collective contracts;

4. examine and supervise the implementation of labor laws and regulations and of the decisions of the regional or industrial employees’ representatives conference by the enterprises within the region or industry, and their implementation of the regional or industrial collective contracts; and

5. other functions and powers that shall be exercised by the regional or industrial employees’ representatives conference.

Article 39

The number and composition of employees’ representatives of the regional or industrial employees’ representatives conference shall be determined upon consultation between the regional or industrial trade union and the enterprises within the region or industry, and such trade union shall set up electoral precincts according to the actual circumstances and organize the employees to elect employees’ representatives democratically according to the following proportion. 

The total number of employees’ representatives of a regional or an industrial employees’ representatives conference shall not be fewer than 30, of which the enterprise managers shall not exceed 30% and the front-line employees shall not be fewer than 50%.

Article 40

The collective contracts, special collective contracts and the relevant resolutions approved by the regional or industrial employees’ representatives conference shall be made public to all the employees.

Article 41

The organization system, rules of procedures, and duties of the working body, of the regional or industrial employees’ representatives conference, shall be implemented by reference to relevant provisions on the employees’ representatives conference of enterprises or public institutions. 

Chapter VIII  Supervision, Inspection and Legal Liabilities

Article 42

The municipal and district/county human resources and social security administrative departments, the trade union at the same level, and the representatives of enterprises and of public institutions shall, via the tripartite consultation mechanism of the labor relations, push forward jointly enterprises and public institutions to establish the employees’ representatives conference system.

Article 43

The municipal and district/county federation of trade unions shall include the enterprises’ or public institutions’ implementation of the employees’ representatives conference system in the contents of the trade union’s supervision and inspection of labor laws and regulations. In case of violating the provision of these Regulations by an enterprise or a public institution, the federation of trade unions may issue a rectification submission upon the trade union’s labor law supervision and require the enterprise or public institution to make corrections. If the enterprise or public institution fails to make corrections within the prescribed time limit, the federation of trade unions may, as needed, make written treatment recommendations upon the trade union’s labor law supervision to the competent departments of state-owned assets, education, and public health, and the human resources and social security administrative departments at the same level, and such competent departments of state-owned assets, education, and public health, and human resources and social security administrative departments shall investigate and deal with it according to law.     

Article 44

If disputes over the implementation of the employees’ representatives conference system arise between an enterprise or a public institution and its trade union, the two parties shall settle them via consultation. Upon the failure of such consultation, the dispute shall be submitted to the trade union at higher level for settlement via coordination with relevant competent departments. 

Article 45

If an enterprise or a public institution conducts any of the following acts in violation of the provisions of these Regulations, the municipal and district/county people’s governments and relevant departments shall order it to make corrections and criticize and educate the legal representative of the enterprise or public institution and the relevant persons liable; those who refuse to make corrections shall be dealt with according to law:

1. obstructing the establishment of the employees’ representatives conference system;

2. preventing the employees’ representatives conference from exercising its powers according to law;

3. failing to submit according to statutory procedures the matters that shall be submitted to the employees’ representatives conference for deliberation and approval upon deliberation, and causing harm to the employees; or

4. altering without authorization or refusing to implement the resolution by the employees’ representatives conference and making infringements on the employees’ rights and interests.

Article 46

If the legal representative or other managers of an enterprise or of a public institution insult or slander the employees’ representatives, retaliate against them by means of violence or threat and, cause personal injury thereto, the public security organ shall impose public security punishment thereon according to law; if such act causes serious consequences and constitutes a crime, the wrongdoer shall be prosecuted for criminal liability according to law.

If the person in charge of the trade union of an enterprise or a public institution fails to perform his/her functions and duties as provided by these Regulations and causes harm to the employees’ rights and interests, the municipal, district/county and industrial (bureau) trade unions shall order him/her to make corrections within a prescribed time limit, and if the case is serious, he/she shall be dismissed according to law. 

Article 47

If relevant departments of the municipal and district/county people’s governments or their working personnel, in violation of the provisions of these Regulations, neglect their duties, abuse their powers, or commit irregularities for personal gains, the unit where they work or the superior competent department shall impose administrative sanctions thereon according to law; if such act constitutes a crime, the wrongdoer shall be prosecuted for criminal liability according to law.     

Chapter IX  Supplementary Provision

Article 48

These Regulations shall be effective as of May 1, 2011.