배움과 공유의 시간

04 Protecting female workers and minors


Against the backdrop of the monologue policy for the past 30 years or so, China's legal protection of three women is so strong that layoff is prohibited until infants reach the age of one after childbirth. As the two-child policy has been revised since 2016, companies are on high alert to manage their third-term female employees. The level of legal protection for underage workers is also being strengthened day by day. It is necessary to be fully aware of the relevant laws and regulations to prevent risks.

1. Protecting female workers

Restrictions on dismissal of female employees during the 3rd term (pregnancy, childbirth, breastfeeding)
From the date of pregnancy to the age of one infant, the labor contract with the woman in the third term cannot be lifted based on the reasons for the worker's negligence, negligence of duty, significant change in objective situation, and layoffs due to the disease for a total of one year and 10 months.

[Reasons for dismissal]
A third-term female worker cannot be fired in any case. For example, if a female employee is pregnant during the trial period, she can be fired for reasons of "uncompliance with the conditions of employment." In addition, in the event that the reason for the disciplinary action specified in Article 39 of the Labor Contract Act exists, the entity may fire a third female employee as follows.
1 In case it has been proved unfit for employment conditions during the trial period
2 In case of a serious violation of the employment rules of the user
3 In case of negligence of duty, cheating, and causing serious damage to the company

Contract expiration date, labor relations automatically extend to end of 3rd term
In the case of a third term female employee, even after the term of the labor contract expires, the contract cannot be terminated and automatically extended until the end of the third term (at the time the infant reaches the age of 1). For example, if an employee due on 31 March 2015 becomes pregnant on 1 March 2014, and gives birth on 1 January 2015, the labor contract automatically extends until 31 December 2015. For periods of automatic extension, there is no need to enter into a labor contract separately.

3rd female employee's response to negligence of duty
In the case of female employees who deliberately overcharge their request or sick leave with a shield, the labor official said,
It's not easy. Most female employees are well aware of the special protection of the law, so they don't try to comply with the lifting of negotiations unless there are some conditions that are quite favorable. In such cases, it will be largely possible to respond in the following ways:

1 Enactment of Vacation Agreement
If long-term rest is required due to the physical burden of pregnancy, the company proposes to sign a "long-term leave agreement" with the company by the beginning of maternity leave. In this case, the company shall continue to pay social insurance and kitchen public funds together to the individual burden. In this case, the company will be able to temporarily hire dispatched workers in the form of labor dispatch, for example, at the cost of reducing the financial burden, as much as the salary expenditure.
* Vacation Agreement [Sample12-1]
2 Promoting negotiation cancellation (in case of non-acceptance of the leave)
Basically, negotiations can be pursued around the following items.
(a) Economic compensation
(b) Replacement of dismissal notice: 1 month
(c) Wage reserves during maternity leave: 3 months
3 Reduction of variable performance in wages
Wage items are structured in advance, and if variable performance items exist, they can be dealt with by reducing performance benefits in case of negligence.

Points in the Special Regulations for Labor Protection for Women Workers (April 2012)

1 Wage reduction and employment protection during the 3rd term of women (pregnancy, fertility, and breastfeeding)
Companies should not reduce or fire female employees during pregnancy, childbirth or nursing. The "wage" mentioned here should not be construed as absolute. If the wage structure is structured in combination with 1 basic wage + 2 job pay and 3 variable performance pay, the variable performance pay varies from time to time depending on the performance of the wage, and if the performance is poor, the amount can be reduced according to the company's performance system.
2 Birth allowance during childbirth
Because of the suspension of the company's wage payment due to the failure of normal work during maternity leave, a "salivative allowance" is paid from the child insurance fund to cover the cost of living (ie the entity is not required to pay wages during the period).
ᄋ Birth insurance policy: Payment from the Birth Insurance based on the average monthly wage of employees in the previous year.
ᄋ Unsubscribed birth insurance: Based on the wages of female employees before childbirth, paid by the company

The basis for calculating raw meat allowances is "the average monthly wage of employees in the company's previous year." This would result in a significant difference between "the average monthly wage of the previous year" and "the actual wages of female employees on maternity leave." By regulation, the company does not have to pay any employee with child insurance during maternity leave. However, the premise is that the company reports the average monthly wage of the employee in the previous year when it reports the social insurance flag.
For example, if the monthly salary is actually 5,000 yuan, and the employee's payout is uniformly reported at 2,500 won (i.e., the payout is lower than the actual wage level), the employee's livelihood allowance will only be 2,500 won per month, which will naturally result in employee complaints, and in this case the company will have to make up for the difference.

Changes in the calculation criteria of raw meat allowance
New Regulations for Separation
The previous year of a company belonging to the average monthly wage of an employee (paid by the Birth Insurance Fund) based on the calculation standard of the living allowance.
Average employee wage

3 1 hour feeding time during the breastfeeding period is provided
During the breast-feeding period until the infant reaches the age of one year after childbirth, the company is required to provide one hour of breast-feeding time every day. Most companies respond by letting them leave work an hour early.

4 Labor hours of pre-birth checkup
It stated that the time required for pre-birth examinations would be scattered into working hours. It is necessary to properly control the recovery and time of pre-birth examinations on the basis of "health measures" issued by the medical institution during pregnancy, in order to prevent them from leaving the hospital on the pretext of non-discontinuous examination.

Key contents of the Regulations for the Protection of Women's Occupational Labor
an oblique reference within a quarter.
child birth
In addition to 98 total vacation days and the base 98 days, an additional 30-60 days of vacation are granted by region.
The 15th of 98 days of maternity leave.
Number of vacation days during miscarriage 15 days less than 4 months pregnant
4 months and more than 42 days of pregnancy
1 hour breast feeding time is given to children under 1 year. 1 hour more feeding time per twin
child birth
on vacation
Birth insurance for raw meat allowance
Standard for calculation of payments from subscription insurance fund: average monthly wage for employees in the previous year
Calculation criteria for non-subsidiary companies: Birth ( Heritage)
principal wage

liability for violating the law

relevant clause
Penalty for violating my dragons
Bureau of Labor Safety Production Supervision
Article 6 Clause 2 (Overtime work,
No night shift) For female workers over seven months pregnant, no overtime or no night shift.

1,000-
five thousand
Article 9 Clause 1
(Overtime work, night class eye boat)
For female workers under the age of one year, the company shall not extend their working hours or provide night labor.
Article 7 (Birth holiday violation) Female workers take 98 days of maternity leave, 1,000-5,000 cologne
Appendix 1, Article 2
Article 1: Labor Scope Avoiding the End of Women
Article 2: Labor Scope Avoiding Ends Between Months-
five thousand
Annex 3, Clause 4
Article 3: Labor scope to avoid termination during pregnancy
Article 4: Labor range avoiding closure during lactation 50,000-
300,000 won

[Scope of working as a female worker]

1. The working range of female workers who avoid employment
(1) Work on Mine Mine Mine Mine Mine
(2) Work on the fourth-class physical strength as defined in the criteria for physical strength and strength grade
(3) Work that carries an increase of more than six times an hour and weighs more than 20 kilos each time or continuously carries a weight of more than 25 kilos each time.
2. The working range of female workers who avoid working during the monthly business
(1) Cold water activities of Grade 2, Grade 3, and Grade 4 stipulated in the criteria for cold water operation grade
(2) Low-temperature work of grades 2 and 3 and 4 as defined in the criteria for low-temperature operation grade
(3) Work of the physical strength of the second, third, and fourth grades as stipulated in the water supply standards for the physical strength of the labor force.
(4) Level 2, 3 and 4 of the complaints set out in the water supply standard for the complaint work
3. Labor range avoided by female workers during pregnancy
(1) Air-grade lead and compounds, mercury and their compounds, benzene, cardium, beryllium, arsenic, cyanide, nitrous oxide, carbon monoxide, chlorine, caprolactam, chloroprene, chloride, epoxylane, anilene, poomdehyde, etc. in the workplace, and their harmful substance concentration exceeds the country's occupational standards.
(2) Working in the production of anti-cancer drugs and diethylvestrol and in contact with gas, etc. of anesthetic drugs;
(3) Operation of non-sealed radioactive materials, first aid for nuclear accidents and radiation accidents
(4) Complaint work stipulated in the complaint work grade standard
(5) Cold water operation stipulated in the criteria for cold water grade
(6) Low temperature operation stipulated in the criteria for low temperature operation grade
(7) Class 3 and Class 4 work stipulated in the complaint work grade standard
(8) Class 3 and Class 4 work stipulated in the noise work grade standard
(9) Work of the third and fourth classes of physical strength as stipulated in the criteria for physical strength and strength grade
(10) Work in an enclosed space, in a high-pressure room, or in a diving operation, involving strong vibration, also requires frequent back bending, climbing and crouching.
4. The scope of labor that female workers avoid during the nursing period
(1) Paragraphs 1, 3 and 9 of the scope of labor that avoids death during pregnancy;
(2) Work in which harmful substances such as manganese, arsenic, methyl alkohol, organic phosphorus compounds, and organic chlorine compounds in the air of a workshop exceed the national occupational hygiene standard.