New Developments in the Rules for Protecting Workers' Basic Rights and Interests
Recently, the Ministry of Human Resources and Social Security and other departments issued the Provisional Regulations on the Protection of Basic Rights and Interests of Overage Workers (hereinafter referred to as the "Provisional Regulations"). Within the overall institutional framework of current laws, the Provisional Regulations clarify the specific rules for protecting the basic rights and interests of overage workers, further developing China's system for protecting workers' basic rights at the regulatory level.
Reviewing the specific provisions of the Provisional Regulations, the allocation of rights and interests reveals the following prominent conceptual characteristics:
Employing an Additive Approach in Legislative Technique Adhering to a problem-oriented approach, the Provisional Regulations grant basic labor rights to overage workers through explicit enumeration. This breaks the existing mindset of strictly tying labor relations to labor protection, as well as the "all-or-nothing" pattern of rights protection in the labor field. It expands the scope of application of labor laws and broadens the approach to worker protection in China.
Ensuring Broad Coverage of Protected Subjects Regarding the applicable subjects—namely, the scope of overage workers—the approach is twofold:
Inclusive Protection: Individuals who have reached the statutory retirement age, regardless of whether they receive pension benefits, are included under the protection of the Provisional Regulations. At the same time, workers who retire early in accordance with the law are also included as subjects of rights protection for overage workers.
Avoiding Redundancy: Overage workers who maintain a labor relationship during a flexible delayed retirement period are not subject to the Provisional Regulations.
This ensures that overage workers who need protection receive it, while avoiding redundant protection for those whose rights are already covered.
- Maintaining a Bottom Line for Statutory Rights Sticking to the principle of doing one's best while acting within one's capabilities, the Provisional Regulations adopt a "bottom-line and basic-guarantee" approach to the scope and standards of statutory rights for overage workers. This balances the institutional arrangements of higher-level laws with the actual needs of overage workers, holistically considering both basic worker rights and corporate employment costs.
Scope of Rights: The rights that employers are legally obligated to safeguard are all fundamental rights concerning the survival and health of overage workers, including working hours and rest, wages, working conditions, and work-related injury protection.
Standards of Protection: The standards by which employers must protect these rights encompass the right to rest, minimum wage, and statutory wage payment forms and cycles.
This basic-guarantee approach not only protects the lives, bodies, and health of overage workers and prevents social risks, but also avoids imposing unreasonable burdens on employers.
- Allowing for Optimized Rights Arrangements Building upon the protection of basic rights, the Provisional Regulations offer the possibility for free and mutually agreed arrangements between parties. Overage workers and employers can agree to provide better rights and interests for the worker above the statutory standards.
Employment Agreements: The Provisional Regulations explicitly state that overage workers and employers may, based on the principles of equality and voluntariness, sign a written employment agreement through consensus to determine the rights and obligations of both parties.
Insurance Benefits: For benefits such as pension and medical insurance, the regulations clarify that overage workers can choose to continue contributing. It also permits workers and employers to negotiate and agree that the employer will pay the basic employee pension and medical insurance premiums on their behalf according to national regulations.
This provides the possibility for parties to arrange rights and obligations through mutual agreement based on the market allocation of labor resources.
Overall, under the general landscape of current human resources and social security legislation, the Provisional Regulations have designed specific rules for protecting the rights and interests of overage workers. This meets the practical needs of protecting their basic rights while aligning with current socio-economic realities. It strikes a good balance between the interests of overage workers and employers, reflecting the new developmental approach of China's system for protecting workers' basic rights and interests.