By: Luo Ai,Pan Faluan, Guo Xian
On May 31, 2018, the regulations of Guangdong Province on population and Family Planning (hereinafter referred to as "the Regulations") were further amended. Compared with the previous revision, which came into effect on September 29, 2016, the revision of 2018 mainly adjusts Article 40, 41 and 46.
The clause" Where any of its employees has given birth to another child in violation of the family planning policy, a state organ, public institution, state-owned enterprise, state-control enterprise or township collective enterprise shall dismiss him/her or terminate his/her employment contract. " (hereinafter referred to as the " dismissal "clause) in Article 40 is deleted. And Article 40 is amended to read as:" Where the person that shall pay the social maintenance fees in accordance with the law and regulation is a government functionary, the person shall also be given an administrative sanction in accordance with the law; for others that are not government functionaries, a disciplinary sanction will also be given by their employers or the organizations concerned. " According to Article 39 of the Regulations, one couple who shall pay the social maintenance fees refer to who " have given birth to a child in violation of laws or regulations ".
According to reports, in October 2017, the Commission of Legislative Affairs of the NPC Standing Committee had sent letters to five local people's congress in Guangdong, Yunnan, Jiangxi, Hainan and Fujian. It is suggested that according to the actual situation in the province, the " dismissal "clause in the local regulations on population and family planning should be amended timely.
At present, except in Guangdong, only Fujian made amendments to the relevant clause of the regulations of Fujian Province on population and Family Planning in November 2017. However, it can be predicted that with the release of the "two-child" policy, it is no longer appropriate for local laws and regulations to continue to enforce strict control measures and penalties on the employees that who give birth to another child. It may be only a matter of time for other provinces to amend the relevant clause of the local regulations on population and Family Planning.
After the" dismissal "clause was amended, whether the employer can terminate the labor contract with the employee on the grounds that the employee violates the family planning policy and related regulations. In judicial practice, the court will have different judgments depending on the specific circumstances.
The first situation is that employee gives birth to another child after the amendment of the Regulations. If the employer only takes Article 40 of the Regulations as the basis for the dismissal of the employee, then the employer's decision to terminate the labor contract will not be supported by the adjudication organ.
The second situation is that the employee has already given birth to another child before the amendment of the Regulations, but the employer is informed of the fact after the amendment. In this case, the employer's decision to terminate the labor contract may obtain the support of the adjudication organ according to the relevant regulations at that time.
In the appeal case of labor contract disputes between Nie Zhaofen and Guangdong Guangye Linmao sewage treatment Co., Ltd., Nie Zhaofen, an employee, gave birth to another child in 2013. According to the Regulations at that time, the behavior of giving birth to another child violates the relevant national laws and policies. However, the employer learned the fact until 2016. At this time, the Regulations have been amended with the release of the "two-child" policy. The Foshan Intermediate people's Court of Guangdong Province held that Nie Zhaofen's behavior occurred before the revision of Law of the People's Republic of China on Population and Family Planning (2015Amendment) and the Regulations. Therefore, the legal provisions at that time should be applied. Meanwhile, Nie Zhaofen did not truthfully inform the company of the fact, even kept concealment of the fact. Therefore, the company didn’t handle Nie Zhaofen's behavior until checking the fact with the family planning department, and did not exceed the reasonable time limit.
Recently, Guangdong Provincial Higher People's Court and Guangdong Labor and Personnel Dispute Arbitration Commission issued the notice of The certain opinions of Guangdong Provincial Higher People's Court and Guangdong Labor and Personnel Dispute Arbitration Commission concerning the connection between arbitration and litigation of labor and personnel disputes (Yue Gao Fa Fa No.2, hereinafter referred to as “No. 2 document”). The Article 13 clearly states that, the employers who dismiss a employee on the grounds of his/her violation of the "one-child" policy shall bear the legal responsibility for the illegal termination of the labor contract. Therefore, with the release of No. 2 document, the employer's termination of the labor contract in the second situation will be difficult to obtain the support of the labor dispute arbitration commission or the court.
With the amendment and promulgation of the Regulations and the application of the No. 2 document in the practice of adjudication, it is no longer appropriate for the employers in Guangdong Province to take measures of severing the labor relations when dealing with the employee's behavior of violating the family planning policy. In view of this, we suggest that the employer should review and adjust the internal rules and regulations of the enterprise in time. The relevant regulations of terminating the labor contract with the employee for "violating the relevant laws of the family planning policy " or "violating the family planning policy " should be adjusted.
There may be doubts about whether employer have no restriction on employee's behavior of violating the family planning policy. Judging from the contents of the Regulations, although the " dismissal "clause has been deleted, there is a provision that "the employees shall be given disciplinary punishments by the units or organizations to which they belong ". The employer can no longer terminate the labor contract with the employee, however, the corresponding disciplinary punishments can still be clearly defined in the rules and regulations of the enterprise.
To sum up, the employer should be cautious when dealing with the employee's behavior of violating the family planning policy, and adjust the rules and regulations of the enterprise as early as possible to maintain coordination with the relevant national laws and policies.