Regulations on Labor Security Supervision

(Adopted at the 68th executive meeting of the State Council on October 26, 2004 and promulgated by Order No. 423 of the State Council of the the People's Republic of China Council on November 1, 2004, and effective as of December 1, 2004)

Chapter I General Provisions

Article 1 In order to implement the labor and social security (hereinafter referred to as labor security) laws, regulations and rules, regulate labor security supervision, and safeguard the legitimate rights and interests of workers, these regulations are formulated in accordance with the Labor Law and relevant laws.

Article 2 These Regulations shall apply to the labor security supervision of enterprises and individual industrial and commercial households (hereinafter referred to as employing units).

Labor security supervision over employment agencies, vocational skills training institutions and vocational skills assessment and appraisal institutions shall be carried out in accordance with these regulations.

Article 3 The administrative department of labor security under the State Council shall be in charge of labor security supervision throughout the country. The labor security administrative departments of the local people's governments at or above the county level shall be in charge of labor security supervision within their respective administrative areas.

The relevant departments of the people's governments at or above the county level shall, in accordance with their respective functions and duties, support and assist the labor security supervision work of the labor security administrative departments.

Article 4 The labor security administrative department of the people's government at the county level and the city divided into districts may entrust the organization that meets the conditions for supervision and law enforcement to implement labor security supervision.

Labor security inspectors in labor security administrative departments and organizations entrusted with labor security supervision shall be recruited through corresponding assessments or examinations.

The production of labor security inspection certificates shall be supervised by the labor security administrative department of the State Council.

Article 5 Local people's governments at or above the county level shall strengthen labor security supervision. The funds required for labor security supervision shall be included in the financial budget at the corresponding level.

Article 6 Employers shall abide by labor security laws, regulations and rules, and accept and cooperate with labor security supervision.

Article 7 Trade unions at all levels shall safeguard the legitimate rights and interests of workers in accordance with the law, and supervise the employers' compliance with labor security laws, regulations and rules.

The administrative department of labor security shall pay attention to the opinions and suggestions of trade union organizations in the work of labor security supervision.

Article 8 Labor security supervision shall follow the principles of fairness, openness, high efficiency and convenience to the people.

Implement labor security supervision, adhere to the combination of education and punishment, and accept social supervision.

Article 9 Any organization or individual shall have the right to report to the administrative department of labor security any violation of laws, regulations or rules on labor security.

If a worker believes that the employer has infringed upon his or her legitimate rights and interests in labor security, he or she shall have the right to lodge a complaint with the administrative department of labor security.

The administrative department of labor security shall keep the whistleblower confidential; reward the whistleblower who is true and provides the main clues and evidence for investigating and dealing with major violations of labor security laws, regulations or rules.

Chapter II Labor Security Supervision Duties

Article 10 The administrative department of labor security shall carry out labor security supervision and perform the following duties:

(I) publicize labor security laws, regulations and rules, and urge employers to implement them;

(II) check the compliance of the employing units with labor security laws, regulations and rules;

(III) to accept reports and complaints on violations of labor security laws, regulations or rules;

(IV) correct and investigate and deal with violations of labor security laws, regulations or rules in accordance with the law.

Article 11 The administrative department of labor security shall conduct labor security supervision over the following matters:

(I) the situation of the employer's formulation of internal labor security rules and regulations;

(II) the conclusion of labor contracts between employers and workers;

(III) the employer's compliance with the prohibition of child labor;

(IV) the compliance of the employing units with the provisions on special labor protection for female employees and juvenile workers;

(V) the employer's compliance with the regulations on working hours and rest and vacation;

(VI) the employer's payment of wages to workers and the implementation of minimum wage standards;

(VII) the employer's participation in various social insurances and payment of social insurance premiums;

(VIII) the compliance of job introduction agencies, vocational skills training agencies, and vocational skills assessment and appraisal agencies with national regulations on job introduction, vocational skills training, and vocational skills assessment and appraisal;

Other labor security supervision matters stipulated by (IX) laws and regulations.

Article 12 Labor security inspectors shall perform their duties of labor security supervision according to law and shall be protected by law.

Labor security inspectors should be devoted to their duties, enforce the law impartially, be diligent and honest, and keep secrets.

Any organization or individual shall have the right to report or file a complaint with the labor security administrative department or the relevant organ against the violation of law and discipline by the labor security inspector.

Chapter III Implementation of Labor Security Supervision
 
Article 13 The labor security supervision of the employing unit shall be under the jurisdiction of the labor security administrative department at the county level or at the city level divided into districts where the employing unit is employed.

The administrative department of labor security at a higher level may, according to the needs of work, investigate and handle cases under the jurisdiction of the administrative department of labor security at a lower level. If the labor security administrative department has a dispute over the jurisdiction of labor security supervision, it shall report to the labor security administrative department at the next higher level to designate jurisdiction.

The people's governments of provinces, autonomous regions and municipalities directly under the Central Government may formulate specific measures for labor security supervision.

Article 14 Labor security supervision shall be carried out in the form of daily inspection, examination of written materials submitted by employers in accordance with the requirements and acceptance of reports and complaints.

If the administrative department of labor security believes that the employer has violated labor security laws, regulations or rules and needs to investigate and deal with them, it shall file a case in time.

The administrative department of labor security or the organization entrusted to carry out labor security supervision shall set up a mailbox and telephone for reporting and complaint.

For mass incidents caused by violations of labor security laws, regulations or rules, the labor security administrative department shall promptly handle them in conjunction with relevant departments in accordance with the emergency plan.

Article 15 When conducting labor security supervision, the administrative department of labor security shall have the right to take the following measures of investigation and inspection:

(I) enter the workplace of the employing unit for inspection;

(II) ask relevant personnel about investigation and inspection matters;

The (III) requires the employer to provide documents related to the investigation and inspection matters, and make explanations and explanations, and may issue an investigation inquiry when necessary;

(IV) collect relevant information and materials by means of recording, audio recording, video recording, photographing or reproduction;

(V) entrust an accounting firm to audit the payment of wages and social insurance premiums by the employing unit;

Other investigation and inspection measures that may be taken by the labor security administrative department in (VI) with the provisions of laws and regulations.

The administrative department of labor security has the right to correct on the spot the acts in violation of labor security laws, regulations or rules that the facts are clear, the evidence is conclusive and can be dealt with on the spot.

Article 16 Labor security inspectors shall have no less than two persons to conduct investigations and inspections, and shall wear labor security inspection signs and show labor security inspection certificates.

If the labor security supervision matters handled by the labor security inspector have a direct interest in the person or his close relatives, he shall withdraw.

Article 17 The administrative department of labor security shall complete the investigation of the violation of labor security laws, regulations or rules within 60 working days from the date of filing the case; if the situation is complicated, it may be extended by 30 working days with the approval of the person in charge of the administrative department of labor security.

Article 18 The administrative department of labor security shall, on the basis of the results of investigation and inspection, deal with the acts violating the laws, regulations or rules of labor security as follows:

The (I) shall make a decision on administrative punishment in accordance with the law for those who should be subject to administrative punishment in accordance with the law;

If the (II) should be corrected but not corrected, it shall be ordered to correct or make a corresponding administrative decision according to law;

If the circumstances of the (III) are minor and have been corrected, the case shall be revoked.

If it is found that an illegal case does not belong to labor security supervision, it shall be promptly transferred to the relevant department for handling; if a crime is suspected, it shall be transferred to the judicial organ according to law.

Article 19 The administrative department of labor security shall, before making a decision on administrative punishment or administrative treatment for acts in violation of labor security laws, regulations or rules, listen to the statements and arguments of the employing unit; and shall inform the employing unit of the right to apply for administrative reconsideration or bring an administrative lawsuit in accordance with the law.

Article 20 If the violation of labor security laws, regulations or rules has not been discovered by the labor security administrative department within 2 years, nor has it been reported or complained, the labor security administrative department shall no longer investigate and deal with it.

The time limit specified in the preceding paragraph shall be calculated from the date of the violation of labor security laws, regulations or rules; if the violation of labor security laws, regulations or rules is continuous or continuous, it shall be calculated from the date of the end of the act.

Article 21 Where an employing unit violates laws, regulations or rules on labor security and causes damage to workers, it shall be liable for compensation according to law. Any dispute between the laborer and the employer over compensation shall be dealt with in accordance with the provisions of the State on the handling of labor disputes.

For matters that should be resolved through labor dispute handling procedures or matters that have been applied for mediation, arbitration or litigation in accordance with labor dispute handling procedures, the labor security administrative department shall inform the complainant to handle in accordance with the labor dispute handling or litigation procedures.

Article 22 The administrative department of labor security shall establish the labor security law-abiding and honest files of the employing unit. If the employer has committed a major violation of labor security laws, regulations or rules, the relevant labor security administrative department shall make it known to the public.

Chapter IV Legal Liability

Article 23 If an employing unit commits any of the following acts, the administrative department of labor and social security shall order it to make corrections and impose a fine according to the standard of 1000 yuan to 5000 yuan per person of the injured laborer:

(I) arranging female workers to engage in underground work in mines, work with Grade IV physical labor intensity as prescribed by the State, or other work that is contraindicated;

(II) arranging for female workers to engage in high-altitude, low-temperature, cold-water work or work with Grade III physical labor intensity as stipulated by the State during their menstrual periods;

The (III) arranges for female employees to engage in labor with Grade III physical labor intensity as stipulated by the State during pregnancy or labor that is contraindicated during pregnancy;

(IV) arranging night shift work for female employees who are more than 7 months pregnant or extending their working hours;

(V) female workers enjoy less than 90 days of maternity leave;

(VI) arranging female workers to engage in labor with Grade III physical labor intensity as stipulated by the State or other labor that is contraindicated during the period of breastfeeding an infant under the age of one year, as well as extending her working hours or arranging her to work on night shifts;

(VII) arranges for juvenile workers to engage in underground mines, toxic and harmful, labor with Grade IV physical labor intensity as stipulated by the State, or other labor that is contraindicated;

(VIII) failing to conduct regular health examinations for juvenile workers.

Article 24 Where an employer establishes a labor relationship with a worker and fails to conclude a labor contract in accordance with the law, the administrative department of labor security shall order it to make corrections.

Article 25 Where an employing unit extends the working hours of a worker in violation of labor security laws, regulations or rules, the administrative department of labor security shall give a warning and order it to make corrections within a time limit, and may impose a fine according to the standard of 100 yuan to 500 yuan per person of the injured worker.

Article 26 If an employing unit commits any of the following acts, the administrative department of labor and social security shall respectively order it to pay the wages of the laborer within a time limit, the difference between the wages of the laborer and the local minimum wage standard, or the economic compensation for the termination of the labor contract; if it fails to pay within the time limit, the employing unit shall be ordered to pay additional compensation to the laborer according to the standard of more than 50% and less than 1 times of the payable amount payable:

(I) withholding of wages or arrears of wages without reason;

The wages paid by the (II) are lower than the local minimum wage standard;

The (III) rescinds the labor contract without giving the laborer economic compensation according to law.

Article 27 Where an employing unit conceals the total amount of wages or the number of employees when reporting the amount of social insurance premiums payable to the social insurance agency, the administrative department of labor security shall order it to make corrections and impose a fine of not less than one time but not more than three times the amount of wages concealed.

Whoever defrauds social insurance benefits or defrauds social insurance fund expenditures shall be ordered by the labor security administrative department to return the funds and impose a fine of not less than one time but not more than three times the amount defrauded; if a crime is constituted, criminal responsibility shall be investigated according to law.

Article 28 If an employment agency, vocational skill training agency or vocational skill examination and appraisal agency violates the provisions of the state on employment introduction, vocational skill training or vocational skill examination and appraisal, the administrative department of labor security shall order it to make corrections, confiscate the illegal income and impose a fine of not less than 10000 yuan but not more than 50000 yuan; if the circumstances are serious, the license shall be revoked.

Organizations or individuals engaged in job introduction, vocational skills training or vocational skills assessment and appraisal without the permission of the administrative department of labor and social security shall be investigated and banned by the administrative department of labor and social security and the administrative department for industry and commerce in accordance with the relevant provisions of the state on the investigation and punishment of unlicensed business operations.

Article 29 Where an employing unit, in violation of the the People's Republic of China Trade Union Law, commits any of the following acts, the administrative department of labor security shall order it to make corrections:

(I) obstructing laborers from joining and organizing trade unions in accordance with the law, or obstructing superior trade unions from helping and guiding laborers in preparing for the establishment of trade unions;

(II), without justifiable reasons, transfer to work posts of trade union staff members who perform their duties in accordance with the law to retaliate;

The labor contract of a (III) worker is terminated because of his participation in trade union activities;

The labor contract of the (IV) trade union staff is terminated due to the performance of their duties in accordance with the law.

Article 30 Whoever commits any of the following acts shall be ordered by the administrative department of labor and social security to make corrections. For acts specified in item (I), (II) or (III), a fine of not less than 2000 yuan but not more than 20000 yuan shall be imposed:

(I) unreasonably resist or obstruct the labor security administrative department in carrying out labor security supervision in accordance with the provisions of these Regulations;

The (II) fails to submit written materials as required by the administrative department of labor security, conceals the truth, issues false evidence or conceals or destroys evidence;

(III) refusing to make corrections after being ordered by the administrative department of labor security to make corrections, or refusing to comply with the administrative handling decisions of the administrative department of labor security;

(IV) retaliate against whistleblowers and complainants.

Anyone who violates the provisions of the preceding paragraph and constitutes a violation of public security management shall be punished by the public security organ according to law; if a crime is constituted, criminal responsibility shall be investigated according to law.

Article 31 If a labor security inspector abuses his power, neglects his duty, engages in malpractices for personal gain, or divulges business secrets he knows in the course of performing his duties, he shall be given administrative sanctions according to law; if a crime is constituted, he shall be investigated for criminal responsibility according to law.

If the administrative department of labor security and the labor security inspector illegally exercise their functions and powers and infringe upon the legitimate rights and interests of the employing unit or the laborer, they shall be liable for compensation according to law.

Article 32 If laws and other administrative regulations provide otherwise for punishment, such provisions shall prevail.

Chapter V Supplementary Provisions

Article 33 For those who have no business license or whose business license has been revoked in accordance with the law, and who have engaged in labor and employment, the labor security administrative department shall implement labor security supervision in accordance with these regulations, and promptly notify the administrative department for industry and commerce to investigate and ban them.

Article 34 The administrative department of labor security shall, in accordance with its duties and in accordance with these Regulations, supervise the implementation of labor security laws, regulations and rules by State organs, institutions and social organizations.

Article 35 The supervision and inspection of labor safety and health shall be carried out by the health department, the safety production supervision and management department, the special equipment safety supervision and management department and other relevant departments in accordance with the provisions of relevant laws and administrative regulations.

Article 36 These Regulations shall enter into force as of December 1, 2004.