New guidance on labour/employment issues

The People's High Court of the Guangdong Province（广东省高级人民法院） ("Guangdong High Court") and the Labour Dispute Arbitration Committee of the Guangdong Province（广东省劳动人事争议仲裁委员会） ("Guangdong Labour Arbitration Committee") held a forum in Foshan on 21 June 2012 to address several questions relating to the resolution of labour/employment disputes. The forum focussed largely on the applicability of the following laws in the resolution of labour/employment disputes, and how the resolution process may be facilitated:

1. Social Insurance Law;
2. Labour Contract Law; and
3. Law on Mediation and Arbitration of Labor Disputes.

Following the forum, the Guangdong High Court and the Guangdong Labour Arbitration Committee formulated the minutes of the meeting ("Meeting Minutes") which cover a total of 43 issues, relating to, notably:

• how disputes related to payments of social insurance, pension fund or work safety insurance, compensation for injury sustained at work or otherwise, shall be treated and resolved;
• the types of remunerations (such as year end double pay, one-off reward, allowances, yearly or half-yearly incentive payments, profit sharing, etc.) that shall be excluded from the basis for calculating any double-salary payment due to an employee as a result of the employer's failure to conclude or require the conclusion of a written employment contract with the employee even after employment has commenced for more than a month;
• issues related to fixed term and open term employment contracts (including circumstances under which an employer is obliged to enter into an open term employment contract with the employee), as well as the determination and payment of economic compensation upon termination of an employment contract (including circumstances under which an employee is disentitled to claim for economic compensation on the termination of employment contract, the basis on which to determine economic compensation due to an employee, etc.); and
• the types of issues which are to be resolved by the labour arbitration tribunal rather than by the court, the requirement for the labour arbitration tribunal to state in its award whether the award is final or otherwise, the requirement for the court to apply the provisions in specific regulations or laws in its adjudication of a labour dispute, and absent such provisions, to rely on alternative laws or rules relevant to the matter in dispute, etc.

The Meeting Minutes have been issued to all the courts and labour dispute arbitration tribunals in the Guangdong Province, for their reference and implementation forthwith. In case of inconsistencies between the stipulations in the Meeting Minutes and those in the earlier guidelines, the stipulations in the Meeting Minutes shall prevail.