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Public Notice of the Standing Committee
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of the Shenzhen Municipal People' s Congress
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(No.
116) |
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Regulations of the
Shenzhen Municipality on the Wage Payment to Employees was
adopted at the Thirty-Third Meeting of the Standing Committee of
the Third Shenzhen Municipal
People' s Congress on August 27,
2004, approved at the Thirteen Meeting of the Standing Committee
of the Tenth Guangdong Provincial People' s Congress on
September 24, 2004, and is now promulgated. It shall
take effect
as of December 1, 2004. |
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The Standing Committee of the Shenzhen |
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Municipal People' s Congress |
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October 28, 2004 |
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Regulations of the Shenzhen Municipality on the Wage
Payment to Employees
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(Adopted
at the Thirty-Third Meeting of the Standing Committee of the
Third Shenzhen Municipal People'
s Congress on August 27, 2004,
approved at the Thirteen Meeting of the Standing Committee of
the
Tenth Guangdong Provincial People' s Congress on September
24, 2004) |
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Chapter I General
Provisions
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Article 1 In order to
maintain the right of employees to have remuneration for labor
and standardize the
acts of wage payment, these regulations are
hereby formulated in accordance with Labor
Law of the People' s Republic of China and other related
laws, regulations, and in the light of the practical conditions
of the Shenzhen
City. |
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Article 2 These
regulations shall apply to the enterprises, individual
organizations and other economic organizations
(hereinafter
referred to as employing units) within this municipality' s
administrative areas as
well as the employees who have formed a
labor relationship with these employing units. |
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These regulations shall be complied with in
implementation by government offices, institutions, social
organizations and the employees who have formed a labor
relationship with these employing units except civil
servants,
the personnel who are administered by referring to the rules
concerning civil servants,
etc. |
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Article 3 The
wage referred to in these regulations shall mean the
remuneration for labor paid to employees
in a monetary form by
employing units according to the related rules of the state and
an agreement
between both parties of a labor relationship. But
the following expenses which employing units bear for or pay to
employees according to laws, regulations, rules shall not fall
into wages: |
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(1)
social insurance expenses; (2) labor protection expenses;
(3) welfare expenses; (4) a lump-sum severance pay for
the
termination of a labor relationship between an employing unit
and an employee; (5) birth control
expenses; (6) other expenses
that are not part of wages. |
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Article 4 The
standard wage referred to in these regulations shall mean the |
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remuneration
for labor that an employee earns by providing normal labor for
an employing unit within
normal working hours, but not including
the following items: |
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(1)
the remuneration for labor which has a payment term
exceeding 1 month such as quarterly bonus, half year bonus,
year-end bonus, year-end double pay, business royalty calculated
on the basis of quarter, half year,
year; (2) the remuneration
for labor which has no regular payment term such as lump-sum
bonuses,
allowances, subsidies, etc.; the standard wage paid by
an employing unit to an employee shall not be lower than
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minimum wage. |
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Article 5 An
employing unit shall pay its employees wages on time and in
full. |
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Article 6 Wages
shall be paid in a monetary form, and it shall not be allowed to |
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pay
wages in non-monetary form such as pay in kind, etc. |
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An employing unit shall pay wages to employees at least
once every month. |
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Article 7 The
administrative departments of labor security of the municipal,
district people' s governments
(hereinafter referred to as the
department of labor security) shall be responsible for
supervision
and inspection of the implementation of these
regulations. |
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The related departments of public security, industrial
and commercial administration, construction shall, within
their
respective authorities, help the departments of labor security
to have the wage payment of
employing units well supervised and
administered. |
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Chapter II General Rules
on Wage Payment
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Article 8 An employing unit
shall formulate a wage payment system according to law through
collective consultation
or in other democratic ways, and make it
public to all the employees of the unit. |
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Article 9 An
employing unit shall have agreements with employees on wages,
payment term, date of payment,
etc. |
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Article 10 If
an employing unit has a yearly salary system or it pays wages
according to an assessment term,
the unit shall pay part of
wages in advance every month which should not be lower than the
minimum
wage. |
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The payment term of overtime wages shall not exceed one
month. |
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Article 11 If
a wage payment term is less than 1 month, an agreed date of wage
payment shall not be later than
the 7th day after the
term expires; if a wage payment term is more than 1 month but
less than 1 year, an
agreed date of wage payment shall not be
later than 1 month after the term expires; if a wage payment
term is 1 year or more than 1 year, an agreed date of wage
payment shall not be later than 6 months after
the term expires. |
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If a date of wage payment happens to be a legal holiday
or a non-business day, the payment shall be made in a preceding
business day. |
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Article 12 If
an employing unit is not able to pay wages at an agreed date of
wage payment for a reason, the
date of wage payment may be
extended for 5 days; if the extension has to be more than 5 days
because
of difficulties in production and operation, a written
agreement with the unit' s trade union or employees themselves
shall be reached, but the extension shall be no more than 15
days. |
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Article 13 When
a labor relationship between an employing unit and an employee
is canceled or terminated according
to law, the wages shall be
paid in full within 3 business days from the date of
cancellation or
termination of the labor relationship if the
wage payment term is less than 1 month; if the wage payment term
is more than 1 month, the wages may be paid on an agreed date of
wage payment. |
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Article 14 An
employee' s wages shall be calculated to be paid from the date
of starting a labor relationship
with an employing unit to the
date of cancellation or termination of such relationship. |
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If an employee' s monthly bonus, quarterly bonus,
year-end bonus have not become due on the date of cancellation
or termination of the labor relationship, they shall be
calculated and paid according to the actual
working hours. |
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Article 15 An
employing unit shall formulate a wage payment table for paying
wages. |
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A wage payment table shall have records of the name of
the unit to make payments, period of wage calculation and
payment, date of wage payment, names of employees, normal
working hours, overtime working hours,
items payable such as
standard wages, overtime wages, etc., and items of deduction,
amount, and
account numbers of wages, etc. |
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A wage payment table shall be kept at least for 2 years. |
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When paying employees wages, an employing unit shall
provide pay lists for the employees who should sign after
receiving their pay lists. The contents of pay lists shall be in
accord with those of wage payment
tables, if employees take
issue on their pay lists, an employing unit shall reply. |
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Article 16 An
employing unit shall pay wages to employees themselves. |
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If an employing unit entrust a bank with wage payment,
the wages shall be deposited into employees' personal
accounts. |
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If an employing unit makes wage payment to employees by
cash, the employees shall take their wages in person and
sing on
the wage payment tables. If an employee cannot take wages in
person for a reason, other
persons may be entrusted with taking
the wages instead, but a written authorization shall be
provided.
If an employee died, the heir or the devisee of this
employee shall take the wages. |
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Article 17 If
an employing unit pays its employees wages on the basis of week,
day, hour, the wages shall be
calculated according 8 hours per
day, 40 hours per week, 21.75 days per month on an average. |
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Chapter III Rates of
Overtime Wage Payment
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Article 18 If an employing
unit is in one of the following situations, overtime wages shall
be paid to employees
according to the following rates: |
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(1)
in case of arrangement for an employee to work at the
time beyond normal working hours, the overtime pay shall be
no
less than 150% of the employee' s standard wage or piecework
wage; (2) in case of arrangement
for an employee to work on a
non-business day, the pay shall be no less than 200% of the
employee'
s standard wage or piecework wage; (3) in case of
arrangement for an employee to work on legal holidays, the pay
shall be no less than 300% of the employee' s standard wage or
piecework wage. |
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Article 19 Within
the term of comprehensive calculation of working hours for the |
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employees
under the work system of comprehensive calculation of working
hours, if an employing unit
makes an arrangement for such an
employee to work after the actual working hours of this employee
have reached the normal working hours, it shall be regarded as
overtime working, and the overtime pay shall be
no less than
150% of the employee' s standard wage or piecework wage. |
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If an employing unit arranges for an employee under the
work system of comprehensive calculation of working hours
to
work on a legal holiday, the overtime pay shall be no less than
300% of the employee' s standard
wage or piecework wage. |
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Article 20 If
an employing unit arranges for an employee under the work system
of non-scheduled working hours
to work on a legal holiday, the
overtime pay shall be no less than 300% of the employee' s
standard
wage or piecework wage. |
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Chapter IV Rates of
Vacation Wage Payment
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Article 21 If an employee
takes a vacation on legal holidays, an employing unit shall pay
wages. |
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If an employee under the hourly wage system, day wage
system and piecework wage system takes a vacation on legal
holidays, an employing unit shall pay this employee the wages
during the legal holidays which should
be no less than the
employee' s own standard wage. |
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Article 22 When
an employee enjoys a maternity leave, a nursing leave, a leave
for birth control surgery, etc.,
according to law, an employing
unit shall see it as providing normal labor and pay wages. |
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When an employee enjoys a yearly vacation, a home leave,
a marriage leave, a funeral leave, etc., according to law,
an
employing unit shall pay the employee the vacation wage which
should be no less than the employee'
s own standard wage. |
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Article 23 If
an employee is ill or injured for a reason not related to work
and has to stop working for medical
treatment, an employing unit
shall, within the period of medical treatment prescribed by the
state,
pay the employee the wages for sick or injury leave which
should be no less than the 60% of the employee' s own
standard
wage, but may not be less than 80% of the minimum wage. |
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Article 24 If
an employee is injured in line of duty, the wages or
work-related injury benefits shall be paid
according to the
related rules of employment injury insurance. |
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Article 25 If
an employee takes a leave for private affairs, an employing unit
may not pay the employee wages
during the leave. |
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Article 26 Within
the term of comprehensive calculation of working hours for the |
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employees
under the work system of comprehensive calculation of working
hours, taking a break after
the actual working hours have
reached the normal working hours shall be seen by an employing
unit
as providing normal labor and the wage shall be paid for
the break. |
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Chapter V Wage Payment
in Special Situations
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Article 27 If an employee
is in one of the following situation within normal working
hours, an employing unit
shall regard it as providing normal
labor and pay wages: |
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(1)
exercising the right to vote and stand for election; (2)
attending the meetings of the organizations such as the
peoples
congress and its standing committee, governments, parties, labor
unions, Communist Youth
League, Women' s Federation, etc. at
district level or higher levers as an elected representative or
member; (3) participating in trials as a people' s juror or
taking part in the activities of litigation, arbitration
as a
witness; (4) participating in the activities of a trade union as
a member of a grassroots
committee of the trade union who is not
released from production according to Law
of the People' s Republic of China on Trade Unions; (5)
other situations stipulated by laws, regulations. |
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Article 28 If
an employing unit partly or entirely suspends production,
operation |
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for
a reason which is not employee' s own fault, the employing unit
shall pay wages to the employee
suspended from work during the
period of suspension according to the following rates: |
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(1)
in case of being suspended from work for less than 1
month, the pay shall be 80% of the employee' s own standard
wage; (2) in case of being suspended from work for more than 1
month, the pay shall be no less
than 80% of the employee' s own
standard wage. |
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Article 29 If
an employee is suspended from work for the employee' s own
fault, |
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an
employing unit may not pay the employee wages during the period
of suspension except that the
suspension is verified as a result
of a work-related injury. |
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Article 30 If
an employee is sentenced to public surveillance or penal
servitude, placed on probation for fixed-term
imprisonment or
paroled, serving a sentence outside prison, out on bail to await
trial with restricted
liberty of moving, and the labor
relationship has not been canceled, an employing unit shall pay
wages according to the labor that the employee provides. |
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Article 31 If
enforcement measures have been taken to restrict an employee' s
right to freedom of the person
because the employee is suspected
of violating law or an administrative penalty to restrict the
employee' s right to freedom of the person has been imposed, an
employing unit may not pay wages during the period
when the
employee' s right to freedom of the person is restricted. |
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Article 32 When
an employing unit goes into liquidation according to law because
of bankruptcy, dissolution,
or being terminated, the liquidating
organization shall, according to the liquidation order
stipulated
by the related laws, pay the wages due to employees
first. |
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Chapter VI Withholding
and Deduction of Wages
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Article 33 An employing
unit shall withhold or pay the following expenses from employees
wages on behalf of
the employees according to law: |
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(1)
the personal income taxes of the employees' own wages;
(2) the social insurance premiums born by the employees
themselves; (3) the expenses of bringing up children, expenses
of supporting family members, expenses
of supporting parents and
grandparents which should be paid by the employees according to
a court
decision put into execution with assistance of the
employing unit; (4) other expenses that should be withheld or
paid from the employees wages by the employing unit according to
laws, regulations. |
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Article 34 An
employing unit may deduct the following expenses from |
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employee' s
wages: |
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(1)
the compensation for the economic loss of the employing
unit caused by the employees themselves; (2) the economic
penalties for violation of disciplines imposed on the employees
by the employing unit in compliance
with the regulations and
rules formulated according to law; (3) other expenses agreed on
by the
employee themselves. |
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The
remaining sum of an employee' s wages after every month' s
deduction by an |
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employing
unit of the expenses referred to in Items (1), (2) of the
preceding section shall not
be lower than the minimum wage. |
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Chapter VII Minimum Wage
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Article 35 The minimum wage
referred to in these regulations shall mean the minimum
remuneration of labor that
an employing unit should pay after an
employee has provided normal labor within normal working hours.
But the following items shall not be included as part of the
minimum wage: |
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(1)
overtime wage; (2) allowances for working in special conditions
of night shift, high temperature,
low temperature, underpit
operation, exposure to toxic and harmful materials, etc.;
(3)other expenses
which do not fall into wages according to the
rules. |
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Article 36 The
minimum wage shall be determined by taking the minimum living
cost of employees themselves and
their supported family members
on an average as a base and taking the following factors into
comprehensive
consideration: |
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(1)
the average wage level of a society; (2) the level of labor
productivity and the level of economic
development; (3) the
state of employment; (4) the social insurance standards. |
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The
municipal department of labor security shall, jointly with the
municipal department of state
assets management, municipal
federation of trade unions, municipal federation of chambers of
commerce,
study and determine the minimum wage, and report it to
the municipal people' s government (hereinafter referred
to as
the municipal government) for approval. |
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Article 37 The
minimum wage shall be adjusted once every year. The methods of
such adjustment shall be decided
separately by the municipal
government. |
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Article 38 The
minimum wage shall be announced during the last ten days of June
every year by the municipal
government respectively in this
city' s major newspapers, radio stations and television
stations.
The units of press shall publish, broadcast it
promptly. |
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Article 39 An
implementation year of the minimum wage shall be from July 1 of
the year to June 30 of the next
year. |
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Article 40 The
minimum wage shall take hourly wage as its basic form. As for
the wage forms such as piecework
wages or deduction wages, etc.,
their hourly wages shall be calculated according to normal
working
hours, and the corresponding sum as a result of
calculation shall not be lower than the minimum hourly wage. |
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Article 41 The
municipal government may fix different minimum wages for the
different administrative areas
of this municipality on the basis
of their specific conditions. |
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Article 42 Within
one month from the date when the municipal government announces
the minimum wages, an employing
unit shall notify its employees
in writing of the rules of the municipal government on the
minimum
wages of the current year. |
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Chapter VIII Supervision
and Inspection
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Article 43 The municipal,
district people' s governments shall establish a system to
monitor the wage payments
of employing units and to supervise
and inspect the credit information of the wage payments of these
units. |
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Article 44 The
departments of labor security shall supervise and inspect the
wage payments of employing units,
and deal with illegal acts
according to law. Employing units shall make truthful reports
and provide
the related materials and evidence when accepting
such supervision and inspection. |
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Article 45 When
the departments of labor security supervise and inspect the wage
payments of employing units
according to law, the related
departments of public security, industrial and commercial
administration,
and construction, etc., shall give assistance at
the request of the departments of labor security. |
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Article 46 The
trade unions at various levels shall supervise the acts of wage
payment of employing units according
to law, have the right to
stop the illegal acts of employing units and ask the departments
of labor
security to deal with the illegal acts of employing
units. |
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Article 47 Any
organizations and individuals shall have the right to report to
the departments of labor security
and indict for the acts
violating the laws, regulations on the wage payment. |
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Article 48 If
an employing unit is in one of the following situations,
employees shall have the right to report
to the departments of
labor security: |
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(1)
the paid wages are lower than the minimum wage; (2)
embezzling or defaulting employees' wages without reason; (3)
the legal representative or the person in charge of operation
has diverted assets, or escaped,
hidden so that the wage payment
to employees might be affected; (4) other situations which might
affect the wage payments to employees. |
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Article
49 After
receiving a report, a department of labor security shall deal
with |
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and
finish the case within 30 days from the date of accepting the
case; if the circumstances are
complicated, the deadline to
close the case may be extended, but the longest time limit shall
be
no more than 60 days, and the reporter shall have a feedback
on the settlement. |
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Article 50 If
an employing unit has embezzled, defaulted employees' wages
without reason, or paid wages which
are lower than the minimum
wage, a department of labor security shall have the authority to
ask
the employing unit to submit the wage payment tables on the
regular basis within one year. |
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Article 51 If
an employing unit has embezzled, defaulted employees' wages
without reason, or paid wages which
are lower than the minimum
wage, a department of labor security may make it public
according to
the seriousness of circumstances. |
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Chapter IX Legal
Liabilities
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Article 52 If an employing
unit is a partnership, its partners shall have joint and several
liability, a partner
who paid the defaulted wages first may
recover the payment from other partners later according to law. |
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Article 53 When
undertaking construction activities, if units such as a unit in
charge of construction, an
enterprise as a general contractor of
construction, etc., have given out a contract, subcontract or
subletting contract, in violation of law, to an organization or
individual unqualified as an employing subject
for failure to go
through industrial and commercial registration or unqualified in
terms of appropriate
aptitude, and this organization or
individual has defaulted employees' wages, the unit giving out
the contract shall pay the defaulted wages of employees for such
an organization or individual. |
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Article 54 In
case of contracted management of an employing unit, if a
contractor defaults employees' wages,
the party giving out
contract shall bear the corresponding legal responsibility
according to law. |
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Article 55 If
an employing unit is in one of the following situations, a
department of labor security shall
give a warning, order
correction by a deadline; in case of failure to make correction
after the
deadline, a fine of more than 10,000 but less than
50,000 RMB shall be
imposed: |
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(1)failure
to make or keep the wage payment tables according to these
regulations; (2) failure to
provide the pay lists for employees
according to these regulations; (3) failure to provide the wage
payment tables for employees to sign when paying wages by cash. |
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Article 56 If
an employing unit is in one of the following situations, a
department of labor security shall
order correction by a
deadline; in case of failure to make correction after the
deadline, a fine
of more than 30,000 but less than 50,000 RMB
shall be imposed according to the seriousness of circumstances: |
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(1)
paying employees wages lower than the minimum wage; (2)
embezzling or defaulting employees' wages without reason;
(3)
paying employees wages in non-monetary forms such as wage in
kind, etc. |
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Article 57 If
an employing unit has paid employees wages lower than the |
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minimum
wage, the deficiency shall be made up, and the economic
compensation equivalent to 200%
of the gross amount of the
deficiency shall be paid to employees as well. |
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Article 58 If
an employing unit has embezzled or defaulted employees' wages
without reason, the employees'
wages shall be paid in full,
and the economic compensation equivalent to 25% of the gross
amount
of the embezzled or defaulted wages shall be paid to
employees as well. |
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Article 59 If
an employing unit, whose violation is reported, complained of,
has refused to provide the related
materials of the wage
payments of the unit or hidden facts, provided false materials
or hidden,
destroyed the related materials when a department of
labor security is supervising and inspecting the wage payments,
a department of labor security shall impose a fine of more than
10,000 but less than 50,000 RMB
according to the seriousness of
circumstances, and may also impose a fine of more than 5,000 but
less than 20,000 RMB on the chief responsible person and
directly responsible persons of the employing unit. |
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Article 60 If
the party concerned has refused to accept a decision on
administrative penalties made by a department
of labor security,
an application for administrative review may be filed according
to law or an
administrative action may be taken. If the party
concerned has failed to apply for administrative review, to take
administrative action, and to carry out the decision on
administrative penalties, the department
of labor security shall
apply for coercive execution to the people' s court according
to law. |
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Article 61 When
supervising and inspecting the wage payments of employing units,
the personnel of the departments
of labor security and the
related departments shall abide by the related rules and present
valid
certificates. |
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Article 62 If
the departments of labor security and the related departments
have failed to execute duties according
to these regulations,
administrative sanctions shall be imposed on directly
responsible chief officers
and directly responsible persons
according to law. |
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If the personnel of the departments of labor security and
the related departments have abused power, practiced favoritism
and engaged in irregularities, and neglected duties,
administrative sanctions shall be imposed
according to law; if a
crime has been constituted, the criminal responsibility shall be
ascertained
according to law. |
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Chapter X Supplementary
Provisions
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Article 63 The
meaning of the following terms used in these regulations shall
be as follows: |
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(1)
normal working hours shall mean the working hours fixed
by an employing unit within legal working hours; (2) normal
labor shall mean the labor that employees provide within normal
working hours according to an agreement
of both parties of the
labor relationship; (3) embezzling wages shall mean the acts of
an employing
unit to withhold and cut employees' wages in
violation of these regulations; (4) defaulting wages without
reason shall mean the acts of an employing unit to fail to pay
or to pay in full employees' wages not
because of force
majeure after a deadline stipulated or endorsed by these
regulations. |
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Article
64 The
municipal government may formulate detailed implementation |
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rules
according to these regulations. |
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Article 65 These regulations shall take effect as of December 1,
2004. |
