Decree of the Ministry of Human Resources and Social Security of the People's Republic of China
17
The "Provisions on the Mediation and Consultation of Enterprise Labor Disputes" has been deliberated and adopted by the 76th Ministerial Meeting of the Ministry of Human Resources and Social Security.
Ministry Minister Chang Wei Yin Weimin
November 30, 2011
Provisions on the negotiation and mediation of labor disputes in enterprises
Chapter 1 General Rules
Article 1 In order to regulate the labor dispute negotiation and mediation of enterprises and promote the harmonious and stable labor relations, these regulations are formulated in accordance with the “Labor Dispute Mediation and Arbitration Law of the People ’s Republic of China”.
Article 2 规定 These provisions apply to the negotiation and mediation of labor disputes in enterprises.
Article 3 Enterprises shall implement democratic management systems such as the Workers ’Congress, the Workers’ Congress, and the disclosure of factory affairs in accordance with the law, establish a collective negotiation and collective contract system, and maintain a harmonious and stable labor relationship.
Article 4 Enterprises shall establish a mechanism for communication and dialogue between employers and employees, and unblock the channels for the expression of labor interests.
If a worker believes that there are problems in the performance of labor contracts, collective contracts, enforcement of labor security laws, regulations, and enterprise labor rules and regulations, they can raise the matter with the Enterprise Labor Dispute Mediation Committee (hereinafter referred to as the Mediation Committee). The mediation committee shall verify the situation in time, coordinate the enterprise to make rectifications or make explanations to the workers.
Workers can also make other reasonable demands to the enterprise through the mediation committee. The mediation committee shall communicate to the enterprise in a timely manner and report the situation to the workers.
Article 5 Enterprises should strengthen their humane care for workers, care about their demands, pay attention to their mental health, guide workers to reasonably defend their rights, and prevent labor disputes from occurring.
Article 6 Negotiation and mediation of labor disputes shall follow the principles of equality, willingness, legality, fairness, and timeliness in accordance with the facts and the provisions of relevant laws and regulations.
Article 7 The administrative department of human resources and social security shall guide enterprises to carry out labor dispute prevention and mediation work, and specifically perform the following duties:
(1) Guiding enterprises to abide by labor security laws, regulations and policies;
(2) Supervising enterprises to establish a labor dispute prevention and early warning mechanism;
(3) Coordinating labor unions and enterprise representative organizations to establish emergency mediation coordination mechanisms for major collective labor disputes in enterprises, and jointly promoting the prevention and mediation of labor disputes in enterprises;
(4) Check the organization, system and team building of the mediation committee within the jurisdiction.
Chapter Two
Article 8 劳动 If a labor dispute occurs, one party may settle it through consultations and interviews with the other party.
Article 9 Laborers may require their trade unions to participate in or assist them in negotiating with the enterprise. Trade unions can also take the initiative to participate in the negotiation and settlement of labor disputes to protect the legitimate rights and interests of workers.
Laborers may entrust other organizations or individuals as their representatives to negotiate.
(Article 10) After one party requests a negotiation, the other party shall actively respond verbally or in writing. Failure to respond within 5 days is deemed unwilling to negotiate.
的 The time limit for negotiation is agreed by the parties in writing. If no agreement is reached within the agreed time limit, it shall be deemed that the negotiation has failed. The parties may agree in writing to extend the period.
Article 11 达成 When agreement is reached through consultation, a written settlement agreement shall be signed. The settlement agreement is binding on both parties and the parties shall perform it.
(2) After examination by the arbitral tribunal, if the procedures and contents of the settlement agreement are legal and effective, the arbitral tribunal may use it as evidence. However, the parties' recognition of the facts of the dispute involved in the compromise for the purpose of reaching a settlement shall not be used as evidence against them in subsequent arbitrations.
Article 12 If a labor dispute occurs and the parties are unwilling to negotiate or fail to reach agreement or reach a settlement agreement, if one of the parties fails to perform the settlement agreement within the agreed time limit, they may apply to the mediation committee or the township and street labor employment social security service center ) And other mediation organizations established in accordance with the law to apply for mediation, you can also apply for arbitration to the Labor and Personnel Dispute Arbitration Commission (hereinafter referred to as the arbitration commission).
Chapter III Mediation
十三 Article 13 Large and medium-sized enterprises shall set up a mediation committee according to law, and be staffed with full-time or part-time staff.
的 Enterprises with branches, stores and factories can set up mediation committees in branches as needed. The headquarters mediation committee directs the branch mediation committee to carry out labor dispute prevention mediation.
The mediation committee may set up a mediation group in the workshop, section, and team as needed.
Article 14 Small and micro enterprises may set up mediation committees, or workers and enterprises may jointly recommend personnel to carry out mediation work.
Article 15 The mediation committee is composed of workers 'representatives and enterprises' representatives. Workers' representatives are held by members of the trade union committee or are elected by all workers. Enterprise representatives are designated by the person in charge of the enterprise. The chairman of the mediation committee shall be a member of the trade union committee or a person recommended by both parties.
(Article 16) The mediation committee performs the following duties:
(1) Publicizing labor security laws, regulations and policies;
(2) mediating labor disputes in the enterprise;
(3) Supervising the implementation of settlement agreements and mediation agreements;
(4) Hiring, dismissing and managing mediators;
(5) Participation in coordinating the performance of labor contracts, collective contracts, and implementation of enterprise labor rules and regulations;
(6) Participate in research on major programs involving the vital interests of workers;
(Vii) Assist enterprises in establishing labor dispute prevention and early warning mechanisms.
(Article 17) The mediator performs the following duties:
(1) Pay attention to the labor relationship of the company and report to the mediation committee in a timely manner;
(2) Accepting the assignment of the mediation committee to mediate labor dispute cases;
(3) Supervising the implementation of settlement agreements and mediation agreements;
(4) Complete other tasks assigned by the mediation committee.
(Article 18) The mediator shall be fair and decent, contact the masses, be enthusiastic about mediation work, and have a certain knowledge of labor security laws and policies and communication and coordination capabilities. The mediators are staffed by the staff of the enterprise appointed by the mediation committee, and all members of the mediation committee are mediators.
(Article 19) The term of employment of a mediator is at least one year and can be renewed. When a mediator is unable to perform his mediation duties, the mediation committee shall make adjustments in a timely manner.
Article 20 Where a mediator performs mediation duties in accordance with the law and needs to occupy production or working time, the enterprise shall support it and treat it according to normal attendance.
(Article 21) In the event of a labor dispute, the parties may submit an application for mediation to the mediation committee, either orally or in writing.
The content of the application shall include the basic information of the applicant, the request for mediation, facts and reasons.
For an oral application, the mediation committee shall record on the spot.
(Article 22) After receiving the mediation application, the mediation committee shall accept the application within 3 working days if it is within the scope of labor dispute acceptance and both parties agree to mediation. If it is not within the scope of labor dispute acceptance or one of the parties does not agree with the mediation, it shall make a record and notify the applicant in writing.
(Article 23) A labor dispute has occurred and the parties have not applied for mediation. The mediation committee may take the initiative to mediate after obtaining the consent of both parties.
Article 24 Mediation committees generally mediate labor disputes in private. However, except where the parties require public mediation.
(Article 25) The mediation committee shall designate a mediator or a mediation team to conduct mediation according to the circumstances of the case. After obtaining the consent of the parties, it may also invite relevant units and individuals to assist in mediation.
The mediator should fully listen to the statements of both parties, adopt flexible and diverse methods, carry out patient and meticulous persuasion and guidance, and help the parties reach a mediation agreement voluntarily.
(Article 26) If a mediation agreement is reached through mediation, the mediation committee shall prepare a mediation agreement. The mediation agreement shall specify the basic conditions of the parties, the mediation request, the results of the mediation, the time limit for performing the agreement, and the method of performance.
The mediation agreement shall be signed or sealed by both parties, and shall take effect after being signed by the mediator and stamped by the mediation committee.
三 The mediation agreement is in triplicate, and the parties and the mediation committee each hold one.
(Article 27) The mediation agreement in force is binding on both parties and the parties shall perform.
Both parties may jointly submit an arbitration review application to the Arbitration Commission within 15 days of the effective date of the mediation agreement. After the arbitration commission accepts it, it shall review the mediation agreement and issue a mediation agreement in accordance with Article 54 of the "Rules for Handling Labor and Personnel Disputes Arbitration Rules" in accordance with the legal and effective procedures and contents of the mediation agreement.
(Article 28) If the two parties fail to submit an application for arbitration review in accordance with the provisions of the preceding article, and if one party fails to perform the mediation agreement within the agreed period, the other party may apply for arbitration in accordance with law.
受理 After accepting the arbitration application, the arbitration commission shall review the mediation agreement. If the mediation agreement is legally valid and does not harm the public interest or the third party ’s legitimate interests, the arbitration commission may make an arbitral award based on the mediation agreement in the absence of new evidence.
(Article 29) The mediation committee's mediation of labor disputes shall end within 15 days from the date of acceptance of the mediation application. However, the parties agree that the extension may be extended.
(2) Failure to reach a mediation agreement within the time limit specified in the preceding paragraph shall be deemed to have failed.
Article 30 If a party is unwilling to mediation, fails to reach mediation, or reaches a mediation agreement, if a party fails to perform the mediation agreement within the agreed time limit, the mediation committee shall keep records, sign or seal the parties, and notify the parties in writing that The arbitration commission applied for arbitration.
(Article 31) In any of the following circumstances, the arbitration limitation period shall be interrupted in accordance with the provisions of Article 10 of the “Rules for Handling Cases of Labor and Personnel Disputes”, and the arbitration limitation period shall be recalculated from the time of interruption:
(1) After one party requests a negotiation, the other party does not agree to the negotiation or does not respond within 5 days;
(2) one or both parties do not agree to continue the negotiation within the agreed negotiation period;
(3) Failure to reach agreement within the agreed consultation period;
(4) After reaching a settlement agreement, one or both parties fail to perform the settlement agreement within the agreed period;
(5) After one party submits an application for mediation, the other party does not agree with the mediation;
(6) After the mediation committee accepts the mediation application, one or both parties do not agree to the mediation within the time limit specified in Article 29;
(7) Failure to reach a mediation agreement within the time limit provided in Article 29;
(8) After a mediation agreement is reached, one party fails to perform the mediation agreement within the agreed period.
Article 32 The mediation committee shall establish and improve mediation registration, mediation records, supervision and implementation, file management, business training, statistical reports, and work evaluation systems.
Article 33 An enterprise shall support the mediation committee to carry out mediation work, provide office space and guarantee working expenses.
Article 34 If an enterprise fails to establish a mediation committee in accordance with these regulations, labor disputes or mass incidents frequently occur, affecting the harmonious labor relationship, and causing major social impact, the human resources and social security administrative departments at or above the county level shall report it; If required by law, it shall be dealt with according to law.
(Article 35) If the mediator commits serious misconduct or violates the law and discipline in the process of mediation and infringes on the lawful rights and interests of the parties, the mediation committee shall dismiss him.
Chapter Four
Article 36 The implementation of labor dispute negotiation and mediation by private non-enterprise units and social organizations shall be implemented with reference to these regulations.
Article 37 These Provisions shall become effective on January 1, 2012.