27.01.10 16:30 Age: 16 yrs
Ministry of Human Resource and Social Security Answers Reporter's Questions
Source: China Employment Newspaper
January 27, 2010
1. Why Were the Rules on Labor and Personnel Arbitration Created?
Answer: the "Rules of the Organizations" were formulated due to the following three reasons:
(1). It is required by current laws. After the implementation of the Law on Mediation and Arbitration of Labor Disputes, the Rules of the Labor Dispute Arbitration Committees (No.300 [1993] of the Ministry of Labor) formulated in accordance with the Regulations of the People's Republic of China on Settlement of Labor Disputes and the relevant provisions of the former Ministry of Personnel were not applicable any more. With the provisions of Article 18 of the Law on Mediation and Arbitration of Labor Disputes, we drafted the Rules of the Organizations to re-set and re-stipulate the labor and personnel dispute arbitration organizations.
(2). It was required for organizational reform. Most of the organizational reforms require integrating labor dispute arbitration and personnel dispute arbitration. To integrate the local labor dispute arbitration organizations and the local personnel dispute arbitration organizations, and with the general idea of organizational reform and the long-term development requirements of labor and personnel dispute arbitration, we made provisions on the settings, structures, functions and safeguard measures of the organizations to integrate the labor dispute arbitration resources and the personnel dispute arbitration.
(3). It is required by the current situation, for handling the labor and personnel dispute cases and the long-term development of arbitration. Due to the influence of the world economic and financial crisis on employment and the labor relations, the number of labor dispute cases has increased sharply, and there is a situation of "fewer people and more cases" in the labor dispute arbitration organizations. Since China had no provisions on establishing arbitration organizations in the past, specialized arbitration organizations and the full-time arbitrators are in a serious shortage. Thus, they cannot effectively meet the requirements demanded by the current situation. This to a certain extent, has affected the work of arbitration and mediation, and parties timely and effectively asserting their rights. Therefore, it was a very important task to meet the demands of the current situation and consider the long-term development of arbitration, to timely formulate the Rules of the Organizations, regulate arbitration organizations, make arbitration organizations to be the primary institutions handling cases, and strengthen the allocation and management of arbitrators.
2. How Should an Arbitration Committee be Established? How Should it be Constituted?
Answer: It is clearly stipulated in Article 17 of the Law on Mediation and Arbitration of Labor Dispute that an arbitration committee may be established by the people's government of the provinces, autonomous regions or municipalities directly under the Central Government.
The Law on Mediation and Arbitration of Labor Dispute provides that an arbitration committee shall consist of the representatives of the labor administrative departments, the representatives of trade unions and the representatives of companies. The Rules of the Organizations, under the guidance of the above basic principle and based on the actual situations after the integration of the personnel dispute arbitration committees, refine the provisions on the composition of labor and personnel dispute arbitration committee. Namely, an arbitration committee shall consist of the representatives of the departments in charge of cadres (namely, the representatives of organizational departments), the representatives of the human resources and social security departments and other relevant administrative departments, the representatives of the competent civilian work departments of army and employing entities, the representatives of the unions and the representatives of the employers. The provisions expand the scope of the members of arbitration committees, but still embody the trilateral principles of arbitration committee.
3. Why Should We Stipulate that an Arbitration Committee May Establish Its Substantiated Offices?
Answer: At present, all the local arbitration committees face the situation of "fewer people and more cases." Due to the restrictions of the administrative departments on the establishment of these organizations, the number of the organizations and personnel engaged in arbitrating the labor and personnel dispute cases in the administrative departments cannot meet the actual needs. In order to address this obvious problem, we, with the approval of the Office of Central Institutional Organization Commission, explicitly stipulated in the Rules of the Organizations that an arbitration committee may set up its substantiated offices responsible for its dispute mediation and arbitration work.
Presently, some provinces and cities have established all kinds of arbitration offices, mainly in the form of arbitration courts to effectively improve the efficiency of the arbitration organizations in handling cases. Meanwhile, the Law on Mediation and Arbitration of Labor Dispute provides that the funds of arbitration committees shall be guaranteed by the Ministry of Finance, which also provides a material guarantee for the substantiated offices of arbitration committees.
4. How is an arbitrator employed?
Answer: An arbitration committee shall, based on its needs, employ its Arbitrators from those persons who can meet the conditions described in Article 20 of the Law on Mediation and Arbitration of Labor Dispute. An arbitration committee may, based on its needs, employ part-time and full-time arbitrators.
5. Why Should Pre-service Training of Arbitrators be Required?
Answer: Because labor and personnel dispute arbitration is a kind of quasi-judicial process, which not only requires that arbitrators have some legal knowledge, but also requires them to be well versed in the laws, regulations and policies related to labor and personnel management.
In order to ensure that the newly appointed arbitrators can be better qualified, the Rules of the Organizations stipulate the pre-service training of arbitrators. It is specifically described as follows:
The arbitrators of the arbitration committees at the prefecture (city), or county (district) level shall participate in the pre-service training of arbitrators organized by the human resource and social security departments at the province (autonomous region or municipality) level.
The arbitrators of the arbitration committees at the province (autonomous region or municipality) level or the sub-provincial city level shall participate in the pre-service training of arbitrators organized by the Ministry of Personnel and Social Security.
6. Since the Rules of the Organizations Have Improved the Arbitration Tribunal System, What Provisions Have Been Added?
Answer: The Rules of the Organizations make the provisions for arbitration tribunals. These include the specific provisions on the composition of arbitration tribunal for the collective labor and personnel dispute cases with more than 10 personnel or the major or difficult dispute cases. The Rules of the Organizations also provide the setup and disciplines of arbitration tribunals, the dress of arbitrators, etc. to ensure that arbitration hearings be standardized and orderly.
7. How to Supervise Arbitration Activities is an Important Part of the Design of the "Labor and Personnel Dispute Arbitration System." So what are the Provisions in this Regard?
Answer: In order to improve the quality of arbitration and increase the credibility of labor and personnel dispute arbitration in society, and to ensure fairness and justice in the arbitration process, the Rules of the Organizations, in accordance with the provisions of Article 19 of the Law on Mediation and Arbitration of Labor Dispute on the functions of arbitration committees, make specific provisions on the supervision of arbitration committees and on arbitration activities, and to strengthen the responsibilities of arbitration committees for supervising arbitration activities, arbitrators and relevant personnel.
The Rules of the Organizations provide that arbitration committees shall supervise the acceptance of cases, the composition of arbitration tribunals and the arbitration activities of arbitrators, and also make the specific provisions on the restrictions on the conducts of arbitrators and employee personnel for record keeping.
Source: China Employment Newspaper January 27, 2010
Translated and Edited by: Zhang Fang and Scott Garner
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