Notice of Nansha District Bureau of Human Resources and Social Security of Guangzhou Municipality on Issuing the Guiding Opinions on Establishing Alternative Dispute Resolution (ADR) Mechanism for Labour Disputes in Nansha District

Guiding Opinions on Establishing Alternative Dispute Resolution (ADR) Mechanism for Labour Disputes in Nansha District

The Guiding Opinions on Establishing Alternative Dispute Resolution (ADR) Mechanism for Labour Disputes in Nansha District are hereby formulated, for the purpose of creating harmonious and stable labour relations, in accordance with Labour Dispute Mediation and Arbitration Law of the People's Republic of China, Rules for Handling Arbitration Cases on Labour and Personnel Disputes, and Measures of Guangdong Province for Handling Labour and Personnel Disputes, in light of the reality of Nansha New Area and Nansha Pilot Free Trade Zone, (Alternative dispute resolution [ADR] is a collective term for alternative means for settling disputes short of litigation and arbitration. Common international practices include conciliation or mediation, neutral listener agreement, and small trial. As a supplementary method to litigation and arbitration, ADR is a manifestation of self-improvement mechanism of the social organism and has been adopted as an important form in civil and commercial dispute settlement system nowadays. ADR is characterised by being informal, non-compulsory, extensive, and flexible.)

I. Guiding Ideology

Requirements of the Nineteenth National Congress of the Communist Party of China for creating harmonious labour relations shall be implemented. Efforts shall be made in ensuring stable development of enterprises and protection of employees' rights and interests; striking a balance between reform, development, and stability; advancing the creation and development of harmonious labour relations with Chinese characteristics in the new era; maximising harmonious factors while minimising disharmonious ones in labour relations, so as to promote sustained sound development of the local economy and ensure social harmony and stability in Nansha New Area and the Nansha Pilot Free Trade Zone.

II. Basic Principles

The ADR mechanism for labour disputes herein refers to the way in which the employer and the employee (hereinafter referred to as the "Parties") agree to resolve their disputes through the alternative dispute resolution under the framework of national laws, regulations, rules, and systems based on the principle of "voluntary negotiation". The Parties specify in an agreement that in the case of any labour dispute, mediation will be adopted as the first resort to settlement and will be followed by a simplified labour dispute arbitration if such mediation fails, so as to prompt both Parties to solve labour disputes more quickly, effectively, and properly and to maintain the harmony and stability of labour relations.  

III. Applicability

These Guiding Opinions applies to the disputes arising from the employment between employers whose place of registration and actual place of employment are in Nansha District and employees during the existence of labour relations.

IV. Agreement 

When an agreement is achieved by the Parties through voluntary negotiation, relevant ADR terms may be specified in one or several instruments confirmed by both parties, such as internal rules and regulations, collective contracts, and labour contracts.

(I) Mediation First

It shall be specified in an agreement that in the case of any labour dispute, either party or both parties shall file an application to the mediation organisation for mediation first.

(II) Simplified Labour Arbitration Procedure

It shall be specified in an agreement that if a labour dispute arbitration is applied for after the mediation fails or either party fails to perform its duties under the mediation agreement, based on the specific circumstances, the pleading period may be combined with the proof period and may be shortened or cancelled.

1. Types of Disputes for Simplified Procedure

Minor disputes with clear facts, rights, and obligations; disputes involving an amount that does not exceed the average annual wage of employees of the province, autonomous region, or municipality directly under the central government in the previous year; or disputes that both parties agree to adopt the simplified procedure.

2. Method of Simplifying the Procedure

Either party can file an application for having the pleading period of labour dispute arbitration shortened to five (5) days or three (3) days or canceled, and presenting all proof in a one-off manner during the pleading period.

V. Establishment Methods

Where the employer specifies the use of mediation first and simplified labour arbitration procedure for labour disputes in instruments such as internal rules and regulations, collective contracts, or labour contracts, it may be established as follows:

(I) Inclusion in Internal Rules and Regulations

The employer may include, in the dispute settlement clause of its internal rules and regulations, content of mediation first for labour disputes, types of disputes to which the simplified labour arbitration procedure is applicable, and specific handling procedures. The employer shall inform all employees in writing of such rules and regulations and archive the signed papers.

(II) Inclusion in Collective Contract of Employer

The employee congress and trade union may conduct collective negotiation with the employer on the relevant content of the dispute settlement clause in the internal rules and regulations, refine and improve the rules and regulations, further clarify the content of agreement on mediation first and application for simplified labour arbitration procedure in the case of a failed mediation, and inform the employees of the content of the collective contract.

(III) Inclusion in Labour Contract of Employee

When signing the labour contract, content concerning mediation first and simplified arbitration procedure for labour disputes may be added in the dispute clause of the labour contract.

VI. Settlement Procedures

(I) Submission to Arbitration Institution

If the Parties have reached an agreement on ADR through voluntary negotiation, the internal rules and regulations, collective contracts, or labour contracts that contain the agreed content (as well as the lists of employees and of agreed content) shall be submitted to the court of arbitration for labour and personnel disputes of Nansha District for archive purpose.

(II) Mediation after Occurrence of Dispute

If a labour dispute occurred between the Parties, an application shall be filed to the mediation organisation first. The mediation organisation shall organise both parties for mediation within a reasonable period, and shall clarify in writing the relevant facts of the labour dispute that needs clarifying, including employment start date, post, wage payment system, work-related injuries and hospitalisation, work injury insurance and work injury compensations.

(III) Application for Written Mediation Arbitration after Successful Mediation

If an agreement has been reached through a successful mediation, the Parties may, within fifteen (15) days after the effective date of the mediation agreement, apply for review and confirmation of the arbitration at the arbitration reception counter of the human resources and social security service agency of the town (street community) where the labour dispute arose. If the relevant requirements are met, the labour and personnel dispute arbitration institution of Nansha District will issue a written mediation arbitration.

(IV) Application for Arbitration after Failed Mediation

In the case of a failed mediation, either party or both parties may apply to the competent institution of arbitration for labour and personnel disputes. The applicant shall submit in writing to the arbitration institution the specific disputed facts that have been clarified after mediation.

(V) Arbitration Case Registration and Review

If case registration requirements are met, the committee of arbitration for labour and personnel disputes of Nansha District will register and review the case without organising cross-examination and investigation of the undisputed content. The arbitral defence pleading shall be determined in accordance with the rules and regulations and contracts agreed by both parties.

VII. Miscellaneous

These Guiding Opinions shall come into force on the date of promulgation and remain in force for five (5) years, and may be revised and adjusted based on the implementation. These Guiding Opinions are interpreted by the Nansha District Bureau of Human Resources and Social Security. Where there is any new provision to relevant laws, regulations, or policies from superior authorities, such provision shall prevail.

Form of Disclosure: Active Disclosure