The Shanghai Labor and Social Security Bureau revealed the proposition in a reply to a Shanghai People's Congress delegate's proposal of granting benefit equality. The bureau said it had submitted the social-insurance draft, which is awaiting the official go-ahead from the city government.

According to the draft, the social-insurance policy expansion will cover expats working for city employers, foreigners who have acquired permanent residency and residents of Hong Kong, Macau and Taiwan.

If it is approved, qualified candidates will be allowed to join the city's pension, medical and industrial-injury insurance systems on level terms with their Shanghai-native counterparts.

People who have been paying into the city's pension fund for an accumulative period of 15 years before retirement age - 60 for men and 55 for women - can apply for pensions in the city.

Full details of the planned new system, such as how much salary people should surrender, are not available. At present, the city's social-security insurance is only open to overseas returnees who still have Chinese citizenship and hold a Shanghai residence card.

In 2004, the Ministry of Public Security launched a permanent-residency permit policy for foreigners, a practice similar to the United States "green-card" system.

Since then, 478 foreigners have acquired a "Chinese green card" in the city, according to the Shanghai Public Security Bureau.

"The Statute of Migrant Persons' Service and Management" will take effect on January 1, 2010. The statue provides that a holder of a residential certificate who has been continuously living and paying social insurance for seven years within the same district of Guangdong Province, who has a fixed living place and a stable occupation, who has abided by the family planning laws, who has legally paid all taxes, and who is without a criminal record, may apply for permanent residency status.

The Ministry of Human Resources and Social Security, the State Administration of Taxation and the Ministry of Finance have jointly issued a notification prolonging policies to ease the burdens on enterprises until the end of 2010. Included in these policies is the "Granting Enterprises in Hardship the Right to Delay Payment of Social Insurance", "Reducing Four Types of Social Insurance Rates Stage by Stage", "Using Unemployment Insurance Funds to Help Stabilize Working Posts of Enterprises in Hardship", and "Encouraging Enterprises in Hardship to Stabilize their Staff Teams through On-the-job Training".

Discussion of the "Sex Equality Promotion Statute of the Shenzhen Special Economic Zone" (Opinion Soliciting Draft) has just ended in Shenzhen. The draft statute proposes a new infant care system shared by both parents, in which new fathers would be given no less than 30 days' leave for infant care during the same period their wives are enjoying their maternity leave.

Reported by: the Court of Shanghai, Minhang District

Mr. Lu was the personal driver of the general manager of the Shanghai Zijiang Packing Material Company. He left his employment on March 1, 2009 after reaching a termination agreement with the Company. The termination agreement expressly provided that all the obligations owed by the company to Mr. Lu would be settled after the Company paid him RMB 1,500 as severance compensation.

However, in August 2009, Mr. Lu filed an employment suit against the company, claiming unpaid overtime compensation during his employment. He asserted that he had to worked until 8 pm every workday and sometimes until midnight, as well as at least 3 hours every weekend. According to Mr. Lu's calculation, the unpaid overtime compensation owed to him from his three-year service was RMB 36,000.

The Company argued that Mr. Lu's position, driver of the general manager, was subject to the flexible working hour system, which had been approved by local Labor Bureau in November, 2007. Therefore, Mr. Lu's actual daily working time was less than eight hours because his could rest when the general manager was in office.

The Court finally ruled that the Company did not need to pay for the compensation for following reasons:

1) Workers who are subject to the flexible working hour system are not subject to the weekday or weekend overtime compensation provisions stipulated by the Labor Contract Law. However, employers shall still pay overtime compensation to workers who work on legally recognized holidays. Mr. Lu was unable to provide evidence proving that he had worked on a recognized holiday.

2) From March 1, 2007 to November 2007, the company had not yet received approval from the local labor bureau to classify Mr. Lu under the flexible work hour system. However, Mr. Lu's effective working time should not be simply calculated based on the hours he was on or off duty. The nature of his position was that he was idle when the general manager had no transportation needs and there was insufficient evidence to prove he had worked any overtime during this period.

3) All of Mr. Lu's rights from his employment relationship with the company were waived when he signed the termination agreement and therefore his claims were groundless.

Reported by the Court of Shanghai, Minhang District

Mr. Zhao was hired for the position of marketing manager by a Shanghai company in March, 2007. Mr. Zhao left the company in January 2009 and launched a lawsuit immediately after his termination.

Mr. Zhao presented a labor contract at court to prove that had been employed by the Company as a marketing manager, from January 1, 2008 to December 31, 2009 with a monthly salary of 10,000 RMB. However, the Company had only paid him 5,000 RMB per month and his claim was for the 5,000 RMB per month difference. This contract was signed by him and both the company chop and the legal representative's chop were affixed to the contract.

The company stated that despite Mr. Zhao's fully executed labor contract, Mr. Zhao's performance as a marketing manager had been deemed to be unsatisfactory and he had been reassigned as head of the HR department. The company claimed that the two sides had concluded a new labor contract with the new salary being only 5,000 RMB. The company further claimed that the newly executed labor contract could not be found and that the company believed that Mr. Zhao had taken advantage of his position and concealed the contract. The company further claimed that the labor contract provided to the court was a forgery and chopped with the company and legal representative's chop, which Mr. Zhao had easy access to as the HR manager. To support its argument, the Company presented internal documents, including an authorization letter and payroll records to prove that Mr. Zhao had been the head of HR rather than a marketing manager since his reassignment.

The Court examined the labor contract in dispute and found that all of the handwriting contained in the contract, including salary, position, and employment term, belonged to Mr. Zhao and that he failed to provide any evidence to prove he was authorized to conclude the contract on behalf of the Company with himself. The court found the documents provided by the company to be consistent with its arguments. Based on the facts, the Court accepted the Company's arguments and refused to support Mr. Zhao's claim.

Reported by the Court of Shanghai, Minhang District

On December 8, 2009, the People's Court of Yunnan Province Shilin County, announced its verdict on Gao Jian and co-workers v. Shilin Tianhe Tobacco Leaf Double Baking Co., Ltd.(hereinafter referred to as "Tianhe Company"), rejecting the claim filed by Gao Jian and his twenty-two co-workers.

In 1998, Tianhe Company employed dozens of employees, including Gao Jian and his co-workers, to work as security guards in its security department. The Company, in accordance with China's Labor Contract Law, concluded a labor contract with each employee every year. Before the expiry of the labor contract on September 30, 2008, the Company asked these employees if they wished to renew their labor contract in August 2008. The twenty-two employees, including Gao Jian, declined to renew the labor contract. Therefore, the Company issued the Notice of Yunnan Employer on Terminating (Dissolving) the Labor Contract on September 1, 2009 to terminate the labor relationship between two parties on September 30, 2009, and paid financial compensation related to the termination of the labor contract to Gao Jian and his workmates according to the law.

Later, Gao Jian and his workmates applied for arbitration with the Labor Dispute Arbitration Commission of Shilin County on the grounds that the Company failed to purchase social insurance for them and failed to pay overtime wages related to routine work days as well as overtime for national legal holidays. The Labor Dispute Arbitration Commission issued an award to:

1. Order Tianhe Company to purchase the social insurance for Gao Jian and his workmates calculated from the time when they began the work to December 2005;

2. Reject the claim filed by Gao Jian and his co-workers asking for the Company to pay overtime wage for the national legal holidays and overtime working hours

The Shilin People's Court held that:

1. Gao Jian and his workmates were engaged in safety and security work. The particularity and nature of this work makes the positions held by Gao Jian and his co-workers subject to the non-productive, non-fixed working hour system. According to No. 22 document (1993) issued by the Ministry of Labor and No. 4 document (2008) issued by Yunnan Ministry of Labor and Social Security, the non-fixed working hour system can be applied to non-productive posts in the tobacco industry. Article 67 of No. 309 Opinions on the Implementation of Several Issues of the Labor Law of the People's Republic of China [1995] issued by the Ministry of Labor stipulates "The staff and workers who are subject to the non-fixed working hour system upon approval are not restricted to the daily overtime standard and the monthly overtime standard specified in Article 41" ; Article 13.4 of the Provisional Regulations on Payment of Wages stipulates "The Above provisions are not applied to the workers subject to the non-fixed working hour system, who are not entitled to overtime pay". Therefore, the claim filed by Gao Jian and his workmates is not conformity with the relevant laws.

2. Regarding overtime for legal holidays, the court found that the Company usually arranged for employees to either take or defer holidays by turns, or paid the overtime wage to these employees if other arrangements could not be made. Furthermore, the employees received the overtime pay or took the deferred holidays for many years and had not raised any objections to it. Therefore, the claim filed by Gao Jian and his co-workers was rejected.

3. The evidences presented to the court by Gao Jian and his co-workers did not clearly prove how many overtime days had been worked or how much overtime should be paid. Based on a lack of clear evidence, this claim was rejected by the court.

Companies should specify and reasonably define the standard of "serious damage" in their employment rules or employment handbooks. If the employment handbook or employment policies do not define "serious damage" or the definition is not considered to be reasonable, the right to define will be left with arbitration committee or the court. Leaving such definition to the labor arbitrators or the court increases the risk of losing the case.

The Shanghai Labor and Social Security Bureau has reported that the number of complaints over under-payment for overtime is rising, in its recently released quarterly report.

The bureau's labor security supervision body received 8,080 complaints during the first quarter, of which 6,031 have been dealt with. Of these complaints, 64.2 % involved late payments and employers who failed to pay social insurance.

While the bureau reported that the number of cases involving wage delays and employers paying lower than the minimum wage dropped it also reported that the number of complaints related to overtime payments increased by 32.6% during the first quarter.

Salary expectations for graduates of 2010 will reach RMB 2,849, according to a survey conducted by the Wage Data Research Center. This is an increase of RMB 500 over the previous year's monthly rate of RMB 2,348

According to the Monitoring Center of the China HR Market Information website www.chrm.gov.cn, China retained a labor surplus in the third quarter of 2009, based on information collected from the 102 cities.

The Guangdong Provincial Statistics Bureau recently released figures on the average wages of urban workers in their province for the first three quarters of 2009. The statistics show that the average wage of workers was RMB 2,845, a 10.8% increase over that of the same period the previous year. However, the statistics also showed that wages of workers in private enterprises were lower in absolute terms and had lower growth rates than those of public institutions and the government.