Opinion: New Provisions protect female workers
July 12, 2012 | BY
clpstaff &clp articles &Sexual harassment becomes a legal issue for the first time under new Provisions to protect female employees
Fourteen years have passed since the State Council first promulgated regulations protecting female employees. Since then, China has experienced unprecedented growth of its economy and changes to traditional culture. A new generation of female workers has emerged, demanding better treatment and working conditions. The Ministry of Human Resources and local governments have promulgated multiple pieces of legislation during this time to protect female workers. This legislation slowly raised the standards for female employees. However, when the State Council promulgated the Special Provisions for the Work Protection of Female Employees (女职工劳动保护特别规定) on April 28 2012, it sent a clear message the country is ready to provide protection in line with international standards.
Holding employers accountable
The Special Provisions increase a company's responsibility to protect female employees. They also enlarge the scope of prohibited work for female employees during pregnancy and strictly forbid overtime after the seventh month of pregnancy. The Provisions have made the standard of protection clearer and more detailed. Article 7 of the Provisions extends maternity leave from 90 days to 98. The main driving force behind the extension is to bring maternity leave in line with international practices, where 14 weeks is common.
Article 8 concerns maternity insurance. Similar to the previous Provisions, the insurance will cover the subsidies female employees enjoy during maternity leave. However, the rate of the subsidy has changed from the personal average salary to the average salary of the company. Higher-level employees can no longer enjoy greater gains from the subsidies. Since they are no longer fully compensated by the insurance and typically, these employees enjoy important positions with the company, employers should consider compensating them for their losses. This will retain loyalty from higher-level female employees. At the same time, lower-level employees will enjoy greater subsidies, perhaps even more than their usual salary, encouraging them to take maternity leave. Companies should also consider how Article 8 could affect an enterprise's culture between senior and lower-level female workers.
While Western countries have absorbed sexual harassment in their legal practices, creating a theoretical and practical system for it, Article 7 of the Provisions represents the first time China has ever made sexual harassment a legal issue. This is a great leap from policymakers to improve equality in the work place. However, sexual harassment is still a new concept. Judges will face difficulties with sexual harassment and its obscure legal definition. The Provisions are also unclear as to what evidence is necessary to prove sexual harassment. Article 7 is a stepping-stone for female employees. Detailed explanations of what constitutes sexual harassment and better understanding among employees are essential in the future. Companies also need to consider their role as a result of Article 7.
Enforcement
According to Article 13 of the Special Provisions, employers are accountable by local government departments for failing to comply with the Provisions. Fines ranging from Rmb1,000 ($157) to Rmb5,000 ($787) may be imposed, depending on the severity of the violation. Employers also have to compensate employees for any losses incurred and take criminal responsibility if necessary. Since the country's highest legislative body, the State Council, promulgated the Provisions, enforcement is likely. In terms of maternity leave and prohibited work, they will be implemented. However, considering the inadequate legal support, it remains to be seen how effective the provision against sexual harassment becomes.
Tara Tang, Shanghai HR&L Law Firm
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