Introduction
Social organisations added to employer category
Addition of gig workers clause
Expanding scope of trade unions' services
Since the second half of 2021, China has issued regulations on the protection of gig workers. The term "gig workers" usually refers to:
- truck drivers who rely on internet platforms for employment;
- network car drivers;
- couriers; and
- takeaway food delivery workers.
The Trade Union Law of the People's Republic of China (the Law) was revised on 24 December 2021 and came into effect on 1 January 2022. This revision is the third revision in 12 years after two earlier updates in 2001 and 2009. Each revision has further strengthened the protection of workers, but the third revision is the first time that the right to unions of gig workers has been addressed.
This article provides an overview of the major revisions.
Social organisations added to employer category
The revision has added social organisations to article 3 of the Law and it collectively refers to "enterprises, institutions, government agencies and social organisations" as "employers".
Different scope of "employer" compared with other statutes
Article 2 of the Labour Contract Law refers to employers as "enterprises, individual economic organisations, private non-enterprise units and other organisations within the territory of the People's Republic of China", and highlights that "government agencies, institutions and social groups" shall refer to the Labour Contract Law. Social organisations are not mentioned. The scope is narrower compared with the revised Law.
Article 2 of the Special Provisions on Labour Protection of Female Workers refers to employers as "government agencies, enterprises, institutions, social groups, individual economic organisations and other social organizations within the territory of the People's Republic of China". As this includes individual economic organisations, the scope appears to be broader than that of the revised Law.
Lack of clear legal definition of "social organisation"
There is no clear definition of "social organisation" in national laws and regulations. In 2018, the Ministry of Civil Affairs issued the Regulation on the Registration and Administration of Social Organisations (Draft for Comment), which pointed out that "social organisations referred to in this regulation include social groups, foundations and social service organisations". As of February 2022, these draft regulations have not been formally adopted.
Addition of gig workers clause
A second paragraph has been added to article 3 of the revised Law:
Trade unions adapt to the development and changes of enterprise organisation forms, workforce structure, labour relations, employment forms, etc., and safeguard workers' rights to join and organise trade unions according to law.
It is generally believed that this new clause clarifies gig workers' right to join and organise trade unions.
Standard employment relationship no longer strict prerequisite for union membership
Article 3 of the Measures for the Administration of Trade Union Membership, which came into effect on 12 December 2016, stipulates that:
the management of trade union membership changes with the flow of employment (work) relationship, and where the employment (work) relationship is, the membership is.
According to this regulation, standard labour relations are the prerequisite for workers to join and organise trade unions. Gig workers, due to the flexible nature of their work, are uncertain about whether there is an employment relationship and which entity is the employer. Although the revised Law has not responded directly to the qualitative problem of gig workers' employment relations, it has pointed out that trade union organisations should adapt to the new changes in employment relations and employment forms, which provided a legal basis for workers with non-standard labour relations to join trade unions.
Upper-level unions may try to encourage workers to join trade unions
In July 2021, the PRC National Federation of Trade Unions issued a notice to launch a nationwide initiative entitled "Encouraging gig workers to join and establish trade unions", which will run until the end of December 2022. In addition to the revised Law, such action may be further strengthened, with leading platform enterprises feeling most of the impact. In the long run, an increase in gig workers joining trade unions may enhance their negotiating position and further attract the attention of legislation and courts, which may have an impact on employers.
Expanding scope of trade unions' services
The phrase "serving the workers wholeheartedly is the basic duty of trade unions" has been added to article 6 of the revised Law and specifies that trade unions shall provide legal aid to workers according to law in article 29 of the Law.
For further information on this topic please contact Jianjun Ma or Meng Li at JunHe by email ([email protected] or [email protected]). The JunHe website can be accessed at www.junhe.com.