Decree No.86
(Promulgated on September 20, 2000 by the Shanghai Municipal People’s Government)
Article 1 Purpose and Basis
In order to enhance labor supervision and inspection (hereinafter referred to as LS&I) and protect the legitimate rights and interests of laborers, these Provisions are formulated in accordance with the provisions of the Labor Law of the People’s Republic of China and laws, rules and regulations governing labor and social security, and in the light of the actual circumstances in this Municipality.
Article 2 Definition
The labor supervision and inspection referred to in these Provisions that administrative law enforcement activities of labor and social security administrative departments conduct lawful supervision and inspection over the compliance of all kinds of enterprises and self-employed (hereinafter referred to as employing-units) with the laws, rules and regulations governing labor and social security, and handling wrongdoings according to law.
Article 3 Administrative Departments
Shanghai Municipal Bureau of Labor and Social Security (hereinafter referred to as SMBLSS) is the competent department of this city’s labor and supervision. District/county labor administrative departments are responsible for the LS&I work within their respective jurisdiction.
The general brigade of LS&I under SMBLSS and the brigades of labor supervision and inspection under district/county labor administrative departments (hereinafter referred to as LS&I organizations) implement specific labor supervision and inspection.
The departments of medical insurance, personnel, public security, industry and commerce, public finance and taxation of this Municipality shall perform their respective duties according to law, and assist labor security administrative departments in carrying out these Provisions.
Article 4 Duties of LS&I Organizations
The LS&I organizations shall perform the following functions and duties:
1. Publicizing the laws, rules, regulations and policies governing labor and social security, and urging employing-units to carry them out;
2. Supervising and inspecting employing-units’ compliance with the laws, rules and regulations governing labor and social security;
3. Handling reports from citizens, legal persons or other organizations about violations against laws, rules and regulations governing labor and social security;
4. Investigating, handling, curbing and correcting employing-units’ violation of laws, rules and regulations governing labor and social security.
Article 5 LS&I Personnel
Labor supervision and inspection organizations shall adhere to the principles of openness, fairness and competition, in employing the best LS&I personnel, and shall give them a planned training in preliminary appointment, post-holding qualification, profession, and updated knowledge, strengthen routine checks and standardize annual review.
IS&I personnel shall be nominated, and reported to the MBLSS for examination and verification, and appointment, by district/county labor administrative departments or the general LS&I brigade.
Article 6 Contents of LS&I
LS&I include the following contents:
1. matters concerning making labor contracts;
2. matters concerning employing-units’ recruitment, employment and dismissal;
3. matters concerning the payment of wages made by employing-units;
4. matters concerning going through of social insurance registration, reporting and paying social insurance premiums;
5. matters concerning the payment of security fees for defaulted wages of small enterprises;
6. matters concerning the implementation of laws, rules and regulations by the personnel agencies, vocational training organizations and vocational skills certification organizations; and
7. other matters prescribed by laws, rules and regulations.
Article 7 Routine LS&I and On-file-case LS&I
LS&I is divided into routine LS&I and on-file-case LS&I.
Routine LS&I means the LS&I activities of LS&I organizations and LS&I personnel, pursuant to laws, rules and regulations, having a general knowledge and check of ’ compliance with the laws, rules and regulations governing labor and social security.
On-file-case LS&I means the LS&I activities of LS&I organizations and LS&I personnel placing a case on file for investigation according to law when they find, during their routine LS&I or by reports from informers, ’ possible contravention of the laws, rules and regulations governing labor and social security.
Article 8 Procedures of Routine LS&I
Routine LS&I shall be conducted according to the following procedures:
1. Informing employing-units of the requirements and contents of LS&I;
2. Telling the party concerned to apply, according to law, for mediation, arbitration or to bring a lawsuit for labor disputes that are confirmed after investigation; and
3. Entering into on-file –case LS&I procedures any possible contravention of the laws, rules and regulations governing labor and social security.
Article 9 Procedures of On-file-case LS&I
On-file-case LS&I shall be conducted according to the following procedures:
1. Conducting preliminary examination of the matters that are possibly in contravention of the laws, rules and regulations governing labor and social security;
2. Placing, upon examination and approval by the person-in-charge of the SMBLSS or of the district/county labor administrative department, a case on file that is, after preliminary examination, considered to have facts of wrongdoing and needs to be investigated for legal liability according to law; the placing of a case of major matters on file shall be reported to the government at the corresponding level or the SMBLSS for the record;
3. Organizing the investigation of, and collecting evidence of, the matters that have been placed on file; and
4. Ordering those who are proved by evidence to have violated the laws, rules and regulations governing labor and social security to rectify within set time; putting forward proposals to the SMBLSS or the district/county labor administrative department with regard to those subject to administrative penalties according to law.
Article 10 Dropping an On-file case
LS&I organizations shall drop the on-file case concerning matters under on-file-case LS&I which, after investigation, are held to have no facts in contravention of the laws, rules and regulations governing labor and social security, or not to be subject to investigation for legal liability.
Article 11 Designated Handling and filing for Handling
LS&I brigades shall refer the matters placed on file which have major impact, or which have trans-regional jurisdiction, to the general LS&I brigade.
The general LS&I brigade has the authority to handle the matters placed on file for supervision under the jurisdiction of LS&I brigades, and may also designate the LS&I brigades to handle the matters placed on file for LS&I under its own jurisdiction.
LS&I organizations, upon finding the matters under investigation during LS&I to fall within the scope of duties of other administrative departments, shall timely refer such matters to the department that has the handling power. If the matters are related with suspected crimes, the LS&I organizations shall refer such matters to judicial organs.
Article 12 Measures of Routine LS&I
LS&I organizations, when conduct routine LS&I, may ask
1. employing-units to explain matters related to labor and social security;
2. employing-units to provide true materials relating to LS&I, such as employment, payroll and financial statement concerning payment of social insurance premiums;
3. to consult and duplicate the materials relating to LS&I.
Article 13 Measures of On-file-case LS&I
LS&I organizations, when conducting on-file-case LS&I, may also adopt the following measures in addition to the measures of routine LS&I:
1. Where any evidence is likely to be destroyed or is difficult to collect afterwards, it may be first registered and preserved upon approval by the person-in-charge of the SMBLSS or the district/county labor administrative department, and a decision on the handling shall be made timely within seven days;
2. Sending instructions to correct their mistakes within a specified time;
3. Other measures prescribed by laws, rules and regulations.
Article 14 Provisions on Performing Official Duties
There shall be two or more than two LS&I members of staff who jointly perform official duties of LS&I. They shall present to the employing-units their certificate of administrative law enforcement and notification of LS&I.
When entering the premises of employing-units to perform official duties of IS&I, LS&I personnel shall observe the employing-units’ rules and regulations set according to law and shall not disturb the normal production, operation and work order of the employer-unites.
The employing-units have the right to resist LS&I personnel who fail to perform official LS&I duties according to the provisions of Clause l and 2 of this Article, and may report against them to the LS&I organizations.
Article 15 Prohibitive Provisions
LS&I personnel, when performing official duties of LS&I, shall observe the following provisions:
1. LS&I personnel shall not take advantage of their positions to seek personal gains;
2. LS&I personnel shall not disclose employing-units business secrets that come to their knowledge and are mastered in the course of LS&I work.
3. LS&I personnel shall not participate in the activities organized by the unit under IS&I, such as entertainment, recreation and tours; or
4. LS&I personnel who have interests with the unit under LS&I are prohibited from participating in LS&I activities of such Unit.
Article 16 Obligations of Those under Investigation
Any employer, when undergoing LS&I, shall undertake the following obligations:
1. Answering LS&I personnel’s questions relating to LS&I;
2. Providing true materials relating to LS&I such as employment, payroll and financial statement concerning payment of social insurance premiums;
3. Keeping relevant materials in a safe place.
Article 17 Annual Inspection
Where annual inspection of labor & social security as prescribed by laws, rules and regulations is to be conducted, LS&I organizations shall give a prior public notice, and conduct annual inspection of labor & social security according to the set scope and procedures. Employing-units shall undergo the annual inspection conducted by labor & social security administrative departments as required.
Article 18 Matters Relating to complaints
Labour & social security administrative departments shall set up hotlines and reception rooms for complaints against wrongdoings, and make public such hotline numbers and addresses of reception rooms.
Any citizens, legal persons, or other organizations have the rights to complain about the employing-units’ violations against the laws, rules and regulations governing labor and social security to the labor & social security administrative departments, which shall timely investigate, report and handle according to law. The departments shall keep secret for the informers.
Article 19 Penalties for Obstruction of LS&I
Any employer that has violated any of these Provisions shall be given warnings, and may be cumulatively fined 100 to 10,000 yuan inclusive by the SMBLSS or the district/county labor administrative department:
1. Obstructing, without any reason, LS&I personnel’s entry into the site to perform LS&I duties according to law, and refusing supervision and inspection;
2. Refusing to provide LS&I organizations with relevant materials, or providing false materials;
3. Transfer, concealing or destroying evidence;
4. Retaliating against informers.
Article 20 Dealing with Obstruction of Official Duties
Anyone who resists or obstructs LS&I personnel in performance of their official duties, resulting in violation against the Regulations of the People’s Republic of China on Public Security Administration and Imposition of Punishment, shall be punished by public security department according to law. If the case is serious enough to constitute a crime, the wrongdoer shall be prosecuted for criminal liability.
Article 21 Prosecution of Law-enforcers’ Wrongful Acts
LS&I personnel shall abide by disciplines and laws, and enforce the law impartially. Anyone who commits dereliction, abuses power, engages in malpractice for selfish ends, seeks and takes bribes and perverts the law in enforcement shall be given administrative penalties by his or her work unit or the higher authority; if the wrongful act constitutes a crime, the wrongdoer shall be prosecuted for criminal liability.
Article 22 Supplementary Provisions
These Provisions apply to the supervision and inspection of State organs, institutions and mass organizations that have established labor contract relations with laborers.
Article 23 Date of Implementation
These Provisions shall become effective on January 1,2001.
Decree No.86
(Promulgated on September 20, 2000 by the Shanghai Municipal People’s Government)
Article 1 Purpose and Basis
In order to enhance labor supervision and inspection (hereinafter referred to as LS&I) and protect the legitimate rights and interests of laborers, these Provisions are formulated in accordance with the provisions of the Labor Law of the People’s Republic of China and laws, rules and regulations governing labor and social security, and in the light of the actual circumstances in this Municipality.
Article 2 Definition
The labor supervision and inspection referred to in these Provisions that administrative law enforcement activities of labor and social security administrative departments conduct lawful supervision and inspection over the compliance of all kinds of enterprises and self-employed (hereinafter referred to as employing-units) with the laws, rules and regulations governing labor and social security, and handling wrongdoings according to law.
Article 3 Administrative Departments
Shanghai Municipal Bureau of Labor and Social Security (hereinafter referred to as SMBLSS) is the competent department of this city’s labor and supervision. District/county labor administrative departments are responsible for the LS&I work within their respective jurisdiction.
The general brigade of LS&I under SMBLSS and the brigades of labor supervision and inspection under district/county labor administrative departments (hereinafter referred to as LS&I organizations) implement specific labor supervision and inspection.
The departments of medical insurance, personnel, public security, industry and commerce, public finance and taxation of this Municipality shall perform their respective duties according to law, and assist labor security administrative departments in carrying out these Provisions.
Article 4 Duties of LS&I Organizations
The LS&I organizations shall perform the following functions and duties:
1. Publicizing the laws, rules, regulations and policies governing labor and social security, and urging employing-units to carry them out;
2. Supervising and inspecting employing-units’ compliance with the laws, rules and regulations governing labor and social security;
3. Handling reports from citizens, legal persons or other organizations about violations against laws, rules and regulations governing labor and social security;
4. Investigating, handling, curbing and correcting employing-units’ violation of laws, rules and regulations governing labor and social security.
Article 5 LS&I Personnel
Labor supervision and inspection organizations shall adhere to the principles of openness, fairness and competition, in employing the best LS&I personnel, and shall give them a planned training in preliminary appointment, post-holding qualification, profession, and updated knowledge, strengthen routine checks and standardize annual review.
IS&I personnel shall be nominated, and reported to the MBLSS for examination and verification, and appointment, by district/county labor administrative departments or the general LS&I brigade.
Article 6 Contents of LS&I
LS&I include the following contents:
1. matters concerning making labor contracts;
2. matters concerning employing-units’ recruitment, employment and dismissal;
3. matters concerning the payment of wages made by employing-units;
4. matters concerning going through of social insurance registration, reporting and paying social insurance premiums;
5. matters concerning the payment of security fees for defaulted wages of small enterprises;
6. matters concerning the implementation of laws, rules and regulations by the personnel agencies, vocational training organizations and vocational skills certification organizations; and
7. other matters prescribed by laws, rules and regulations.
Article 7 Routine LS&I and On-file-case LS&I
LS&I is divided into routine LS&I and on-file-case LS&I.
Routine LS&I means the LS&I activities of LS&I organizations and LS&I personnel, pursuant to laws, rules and regulations, having a general knowledge and check of ’ compliance with the laws, rules and regulations governing labor and social security.
On-file-case LS&I means the LS&I activities of LS&I organizations and LS&I personnel placing a case on file for investigation according to law when they find, during their routine LS&I or by reports from informers, ’ possible contravention of the laws, rules and regulations governing labor and social security.
Article 8 Procedures of Routine LS&I
Routine LS&I shall be conducted according to the following procedures:
1. Informing employing-units of the requirements and contents of LS&I;
2. Telling the party concerned to apply, according to law, for mediation, arbitration or to bring a lawsuit for labor disputes that are confirmed after investigation; and
3. Entering into on-file –case LS&I procedures any possible contravention of the laws, rules and regulations governing labor and social security.
Article 9 Procedures of On-file-case LS&I
On-file-case LS&I shall be conducted according to the following procedures:
1. Conducting preliminary examination of the matters that are possibly in contravention of the laws, rules and regulations governing labor and social security;
2. Placing, upon examination and approval by the person-in-charge of the SMBLSS or of the district/county labor administrative department, a case on file that is, after preliminary examination, considered to have facts of wrongdoing and needs to be investigated for legal liability according to law; the placing of a case of major matters on file shall be reported to the government at the corresponding level or the SMBLSS for the record;
3. Organizing the investigation of, and collecting evidence of, the matters that have been placed on file; and
4. Ordering those who are proved by evidence to have violated the laws, rules and regulations governing labor and social security to rectify within set time; putting forward proposals to the SMBLSS or the district/county labor administrative department with regard to those subject to administrative penalties according to law.
Article 10 Dropping an On-file case
LS&I organizations shall drop the on-file case concerning matters under on-file-case LS&I which, after investigation, are held to have no facts in contravention of the laws, rules and regulations governing labor and social security, or not to be subject to investigation for legal liability.
Article 11 Designated Handling and filing for Handling
LS&I brigades shall refer the matters placed on file which have major impact, or which have trans-regional jurisdiction, to the general LS&I brigade.
The general LS&I brigade has the authority to handle the matters placed on file for supervision under the jurisdiction of LS&I brigades, and may also designate the LS&I brigades to handle the matters placed on file for LS&I under its own jurisdiction.
LS&I organizations, upon finding the matters under investigation during LS&I to fall within the scope of duties of other administrative departments, shall timely refer such matters to the department that has the handling power. If the matters are related with suspected crimes, the LS&I organizations shall refer such matters to judicial organs.
Article 12 Measures of Routine LS&I
LS&I organizations, when conduct routine LS&I, may ask
1. employing-units to explain matters related to labor and social security;
2. employing-units to provide true materials relating to LS&I, such as employment, payroll and financial statement concerning payment of social insurance premiums;
3. to consult and duplicate the materials relating to LS&I.
Article 13 Measures of On-file-case LS&I
LS&I organizations, when conducting on-file-case LS&I, may also adopt the following measures in addition to the measures of routine LS&I:
1. Where any evidence is likely to be destroyed or is difficult to collect afterwards, it may be first registered and preserved upon approval by the person-in-charge of the SMBLSS or the district/county labor administrative department, and a decision on the handling shall be made timely within seven days;
2. Sending instructions to correct their mistakes within a specified time;
3. Other measures prescribed by laws, rules and regulations.
Article 14 Provisions on Performing Official Duties
There shall be two or more than two LS&I members of staff who jointly perform official duties of LS&I. They shall present to the employing-units their certificate of administrative law enforcement and notification of LS&I.
When entering the premises of employing-units to perform official duties of IS&I, LS&I personnel shall observe the employing-units’ rules and regulations set according to law and shall not disturb the normal production, operation and work order of the employer-unites.
The employing-units have the right to resist LS&I personnel who fail to perform official LS&I duties according to the provisions of Clause l and 2 of this Article, and may report against them to the LS&I organizations.
Article 15 Prohibitive Provisions
LS&I personnel, when performing official duties of LS&I, shall observe the following provisions:
1. LS&I personnel shall not take advantage of their positions to seek personal gains;
2. LS&I personnel shall not disclose employing-units business secrets that come to their knowledge and are mastered in the course of LS&I work.
3. LS&I personnel shall not participate in the activities organized by the unit under IS&I, such as entertainment, recreation and tours; or
4. LS&I personnel who have interests with the unit under LS&I are prohibited from participating in LS&I activities of such Unit.
Article 16 Obligations of Those under Investigation
Any employer, when undergoing LS&I, shall undertake the following obligations:
1. Answering LS&I personnel’s questions relating to LS&I;
2. Providing true materials relating to LS&I such as employment, payroll and financial statement concerning payment of social insurance premiums;
3. Keeping relevant materials in a safe place.
Article 17 Annual Inspection
Where annual inspection of labor & social security as prescribed by laws, rules and regulations is to be conducted, LS&I organizations shall give a prior public notice, and conduct annual inspection of labor & social security according to the set scope and procedures. Employing-units shall undergo the annual inspection conducted by labor & social security administrative departments as required.
Article 18 Matters Relating to complaints
Labour & social security administrative departments shall set up hotlines and reception rooms for complaints against wrongdoings, and make public such hotline numbers and addresses of reception rooms.
Any citizens, legal persons, or other organizations have the rights to complain about the employing-units’ violations against the laws, rules and regulations governing labor and social security to the labor & social security administrative departments, which shall timely investigate, report and handle according to law. The departments shall keep secret for the informers.
Article 19 Penalties for Obstruction of LS&I
Any employer that has violated any of these Provisions shall be given warnings, and may be cumulatively fined 100 to 10,000 yuan inclusive by the SMBLSS or the district/county labor administrative department:
1. Obstructing, without any reason, LS&I personnel’s entry into the site to perform LS&I duties according to law, and refusing supervision and inspection;
2. Refusing to provide LS&I organizations with relevant materials, or providing false materials;
3. Transfer, concealing or destroying evidence;
4. Retaliating against informers.
Article 20 Dealing with Obstruction of Official Duties
Anyone who resists or obstructs LS&I personnel in performance of their official duties, resulting in violation against the Regulations of the People’s Republic of China on Public Security Administration and Imposition of Punishment, shall be punished by public security department according to law. If the case is serious enough to constitute a crime, the wrongdoer shall be prosecuted for criminal liability.
Article 21 Prosecution of Law-enforcers’ Wrongful Acts
LS&I personnel shall abide by disciplines and laws, and enforce the law impartially. Anyone who commits dereliction, abuses power, engages in malpractice for selfish ends, seeks and takes bribes and perverts the law in enforcement shall be given administrative penalties by his or her work unit or the higher authority; if the wrongful act constitutes a crime, the wrongdoer shall be prosecuted for criminal liability.
Article 22 Supplementary Provisions
These Provisions apply to the supervision and inspection of State organs, institutions and mass organizations that have established labor contract relations with laborers.
Article 23 Date of Implementation
These Provisions shall become effective on January 1,2001.
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