As for the retirement of female employees in enterprises in China, due to the dual system of retirement age, coupled with the low level of legislation, the long time of legislation, the relevant provisions and concepts are vague, enterprises have nothing to follow in the application. Employees' demands for retirement age and employers' demands for termination of labor relations often conflict. In addition, the specific regulations and operations in different places are not uniform, so it is necessary to systematically sort out the problem and put forward targeted lawyer suggestions. It can be used as reference for enterprises to deal with the retirement of female employees.

First, the state's legal and regulatory system on the "retirement age of female employees"

(1) In 1974, the "Interim Measures of The State Council on the placement of elderly, Infirm and disabled cadres" (Guofa [1978] No. 104) stipulates that cadres of Party and government organs, mass organizations, enterprises and institutions can retire if they meet one of the following conditions: men have reached the age of 60, women have reached the age of 55, and they have participated in revolutionary work for at least 10 years.

2. Article 75 of the Notice issued by the Ministry of Labor in 1995 on the issuance of Several Opinions on the Implementation of the Labor Law of the People's Republic of China (Ministry of Labor Issue [1995] 309) : After the implementation of the labor contract system by all the employees of the employing unit, the retirement age of the employees who are transferred from the former worker's post before the transformation into the former cadre (technical) post, or from the former cadre (technical) post to the former worker's post in the employing unit shall be subject to the provisions of the current post state.

3. Notice of The General Office of the State Council on Further Improving the Basic Living Security of laid-off Workers in State-owned Enterprises and Issues related to the payment of pensions for retired Workers in Enterprises [State Council (1999) No. 10] and Notice of the Ministry of Labor and Social Security on Stopping and Correcting Issues Related to the Early Retirement of Enterprise Workers in Violation of State Regulations [1 The retirement age of enterprise employees is 60 years old for men, 50 years old for women, and 55 years old for female cadres.

4, 2001 "the Ministry of Labor and Social Security Office on the meaning of" statutory retirement age "(Labor Department letter [2001] No. 125) stipulates: the national statutory retirement age of enterprise employees refers to the normal retirement age stipulated by the state law, that is, male 60 years old, female 50 years old, female cadres 55 years old.

Lawyer analysis: The above provisions are the origin of the dual retirement age system for female employees. With the promulgation and implementation of these regulations, the retirement age of female employees has a traditional division of "cadres" and "workers". That is, female cadres reach the retirement age at 55, and female workers reach the retirement age at 50.

 
5. Opinions of the State Economic and Trade Commission, the Ministry of Personnel, and the Ministry of Labor and Social Security on Deepening the Reform of the Internal Personnel, labor, and distribution systems of State-owned Enterprises in 2001 (National Economic and Trade Reform [2001] No. 230) stipulates: Enterprises no longer apply the administrative level of state organs, and managers no longer enjoy the administrative level treatment of cadres in state organs. Break the traditional boundary between "cadres" and "workers", change identity management to post management. Those who work in managerial positions are managers. After the post changes, its income and other benefits shall be adjusted according to the new post.

According to the above provisions, the current retirement age of female workers should be based on whether they are engaged in management or technical posts. And the nature of the post can be converted to each other, once engaged in ordinary posts, can also be engaged in management and technical posts; Those who have been engaged in managerial and technical positions may also be engaged in ordinary positions. That is, management technical posts reach the retirement age at 55, and ordinary posts reach the retirement age at 50.

2. Provisions of relevant provinces and municipalities on the "retirement age of female employees"

Lawyer's analysis:

The above regulations have more detailed provisions on the retirement age of female workers, and the following conclusions can be drawn:

(1) The retirement age of female employees in management and technical positions is 55 years old, and the retirement age of non-management and technical positions is 50 years old.

(2) The specific retirement age for female employees of enterprises is determined according to the nature of their posts at the time of retirement. If the position changes, the retirement age shall be determined according to the current position. Current posts generally have tenure requirements, such as two years in Sichuan and one year in Guangdong.

(3) To determine the nature of the positions of female employees when they retire, mainly the positions agreed upon in the labor Contract between the two parties shall prevail.

4. The concept and specific job names of management and technical posts are not specified everywhere.

 
Iii. The substance of the dispute, the determination of management and technical positions

Current retirement policies do not specify what constitutes a manager. Regarding the definition of management and technical posts, at present, only the ninth article of the "Trial Measures for the Establishment and Management of Public Institution Posts" issued by the Ministry of Personnel stipulates that "management posts refer to jobs that assume leadership responsibilities or management tasks", and article 10 stipulates that "professional and technical posts refer to jobs that engage in professional and technical work and have the corresponding professional and technical level and ability requirements." The regulation is aimed at public institutions, not ordinary enterprises, and the definition is very broad, which does not help solve the problem. Because of the wide variety of industries and diverse positions, how to define is more complicated.

It is precisely because of the lack of specific judgment standards for "management positions" that the identification of the retirement age of female employees in judicial practice is relatively confused, some of the power of interpretation is exercised by the employer, some of the employer assumes the burden of proof for "non-management positions", and some cases are completely left to the discretion of the judicial organ. The disunity of justice brings legal risks to the management of enterprises.

Of course, there is nothing we can do to change the status quo, but by reading some of the decisions, we can learn from them.

1. The main point of the Supreme People's Court Judgment: For the nature of the employee's job at the time of retirement, whether it is a management or technical post or an operation, production or service post, how to deal with the situation of internal retirement, etc., it should be comprehensively identified in combination with the enterprise's internal job classification management documents and employee files, and it belongs to the scope of the enterprise's labor autonomy management. [Administrative Ruling of the Supreme People's Court of the People's Republic of China (2017) No. 8303 of the Supreme Law Bank]

2, Beijing Xicheng District People's Court: On the identification of management positions and non-management positions: After consulting the Beijing Municipal Human Resources and Social Security Department, the answer is that at present, there is no accurate definition or enumerative definition of "management positions and non-management positions" in various national normative documents for retirement conditions. In practice, the supervisor can be a management post, and the steward can also be called a management post. The employer and the worker mainly agree on whether the worker's post has management nature in the labor contract. If there is no agreement, it can also be stipulated in the rules and regulations of the employer, post structure and other documents. If there is no agreement or regulation, the nature of the post shall be determined through consultation between the employer and the worker. 【 (2017) Beijing 02 Minend No. 12662 】

Lawyer's analysis:

1. Current laws and regulations do not clearly stipulate the quality of management positions, and judicial practices are not uniform, which brings risks and challenges to enterprises in dealing with similar issues.

2. Judicial practice tends to leave the characterization of management positions to the enterprise and the laborer to be agreed upon, and respect the agreement between the two parties if there is an agreement. If there is no agreement between the two parties, it shall be classified as the autonomy of employment management of the enterprise, which shall be stipulated by the enterprise according to the actual situation of the enterprise. However, the identification of enterprises cannot exceed the common sense understanding of ordinary people, nor can they violate the provisions of the law. For example, the general manager of the company is identified as a non-management position.
3, in order to avoid disputes over whether to manage positions, it is suggested that enterprises can improve in the following aspects:

1) When the labor contract specifies the position, it shall clearly specify whether the position belongs to management and technical positions.

2) It shall be clearly stipulated in corporate rules and regulations (labor manual), post structure and other documents.

Iv. Compliance suggestions and risk prevention strategies

In practice, the actual operation of the retirement age of female workers in different places is not consistent. In some areas, companies are required to report to the labor department whether a female employee's job is a managerial and technical position. Therefore, when dealing with such problems, the company should not be one-size-fits-all, and should deal with them according to the actual conditions of various places and the specific positions of employees. In this regard, based on the above analysis, the following suggestions are put forward:

1. First of all, sort out the situation of the personnel to be dealt with. Whether the company's entry materials, labor contracts or related documents have identified the employee's position as a management position. Pay special attention to the materials issued to employees, such as rules and regulations, reward and punishment notices, etc., whether their positions are characterized as management positions. For example, if a female employee wins the honorary title of the company's management expert, if the employee holds the certificate of award on this surface, it can be used as rational evidence that its position is of a management nature.

2, to the local labor department to verify that the nature of the position of the employee has not been recorded, if there is a record for the management of female workers, the retirement age of 55 years should be applied. If you want to adjust the retirement time of the employee to 50 years old, you need to negotiate the adjustment in advance. (See Section 2 for details)

3. Determine the nature of the post with the labor contract of the employee to be dealt with.

4. The company can clearly define the scope of management and technical positions by sorting out the actual situation of the company's positions. This content may be stipulated in the labor manual, and then the labor manual shall be changed according to the law and delivered to the employee according to the law. Although there is no clear provision in the law for management positions, the determination of the company should also have a certain rationality and meet the common sense understanding of the general public. The company tries its best to reach agreement with employees and minimize disputes. Otherwise, once a dispute occurs between the two parties, the company will still face uncertain legal risks based on the inconsistency of judicial application and rulings.

5. Answer typical questions of enterprises

The following questions are typical problems in the retirement age of female employees in enterprises, and their answers can provide useful enlightenment for enterprises to deal with this problem.

1. Is the retirement age of 50 for female employees legal across China?

Lawyer analysis and advice:

According to the current regulations, the retirement age of female employees is not uniformly 50 years old, that is, the retirement age of female employees in management and technical positions is 55 years old, and the retirement age of non-management and technical positions is 50 years old. (See the second part of this opinion for details)

Therefore, the retirement age of female employees can not be cut across the board, and the uniform provision is 50 years old, otherwise the provision is invalid because it violates the current law. The enterprise shall determine the retirement age of the employee according to the nature of his/her post at the time of retirement. (See the third part of this opinion for details)

2. If it is illegal and the employee signs the employee manual or expressly agrees to the employee manual, does the employee subsequently lose the right to require the company to continue to perform the labor contract?

Lawyer analysis and advice:

According to Article 80 of the Labor Contract Law, "Where the rules and regulations of an employing unit directly related to the vital interests of workers violate the provisions of laws and regulations, the labor administrative department shall order it to make corrections and give it a warning; If any damage has been caused to the laborers, they shall be liable for compensation." The rules and regulations (employee handbook) stipulate that the law must not be violated. Therefore, the uniform retirement age of female employees in enterprises is 50 years old, which is contrary to the current law and is invalid.

The law on retirement age is clearly stipulated, so the rules and regulations of the enterprise can only be invoked, and inconsistent provisions shall not be made. In other words, the enterprise rules and regulations do not provide for this problem, and it has no effect on solving the retirement problem of female employees in enterprises.

For violations of the provisions of the law, even if the employee has signed or agreed to the provisions of the employee manual, there is no legal binding force on the employee.

3. If it is legal, can an employee refuse to sign the employee manual and what other measures can be taken?

Lawyer analysis and advice:

According to Article 4 (4) of the Labor Contract Law, "The employer shall publicize the rules and regulations and major decisions directly related to the vital interests of the worker, or inform the worker." Disclosure of the employee handbook to employees is one of the necessary conditions for the effectiveness of the rules and regulations. In addition, the content of the employee handbook must be reasonable and legal, and the development of the employee handbook must go through democratic procedures.

The formulation of employee manual is the scope of the enterprise's independent management. As long as the enterprise formulates it in accordance with legal procedures, the content does not need to be agreed by all employees. Employees signing labor manuals is just one of the ways companies inform employees, but it's not the only way. In other words, if the employee does not sign the employee manual, it will not be effective. In practice, there are other ways for enterprises to publicize the employee manual to employees: training on the content of rules and regulations (keep the training sign-in sheet), as an attachment to the labor contract, sending rules and regulations by mail in time, or delivering them to workers in person (audio and video recording). The law requires the worker to be informed, not to consent.

However, regarding the content of labor manuals, enterprises should not be arbitrary. According to Article 4 of the Labor Contract Law, "When an employer formulates, modifies or decides on rules and regulations or major matters directly related to the vital interests of workers, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance and welfare, employee training, labor discipline and labor quota management, it shall be discussed by the employee congress or all employees. To put forward plans and opinions and determine them through equal consultation with the trade union or employee representatives. In the course of implementing rules and regulations or decisions on major matters, if the trade union or the employees think that they are inappropriate, they shall have the right to raise the issue with the employing unit for amendment and improvement through consultation." In other words, employees have the right to make suggestions on the content of the rules and regulations, and if the provisions of the rules and regulations damage the rights and interests of workers, they also have the right to claim compensation from the unit.