80 81 In the above-mentioned case, the dispute between the female employee and the employer arose due to differing interpretations regarding the female employee’s retirement age and the determination of her status at the time of retirement. Nowadays, with the emergence of new business forms, diversification of employment entities, and various job positions, it has become increasingly difficult to simply distinguish whether a female employee’s status is cadre or worker, and whether her job position is managerial or non-managerial, as well as determining whether the retirement age should be 50 or 55. Therefore, research on the retirement age and determination of status for female employees has practical significance at various levels, be it for the management of retiring employees by employers or for each female employee facing retirement to clarify their own rights, as well as for the formulation of national policies on retirement age reform. II. DETERMINATION OF RETIREMENT AGE CRITERIA FOR FEMALE EMPLOYEES It is evident from the above regulations that the determination of the retirement age for female employees depends on whether the female employee holds a “cadre” position or a “worker” position at the time of retirement. A female employee may initially hold a “worker” position when she first joins the workforce, and later, with the growth of work experience and changes in job skills, her position may change to ‘cadre”, or she may even change from a “cadre” to a “worker”. If there is a change in the status of a female employee during her employment, how is the retirement age criteria determined at the time of retirement? One approach is to base it on the status recorded in the social security registration. If the registration indicates “worker” and there have been no changes, regardless of the actual job position the female employee has worked in, she will still be considered a “worker” and reach the statutory retirement age of 50. If there has been a change in the registered status, the retirement age of the female employee will be determined based on the updated status in the social security registration. Another approach is to rely on the status recorded in the personnel files of the female employee. Both of these determination methods depend on the records and changes in the status of the female employee maintained by the social security administrative department or the personnel file management department. In practice, it is possible for discrepancies to occur where the employee’s position has changed, but due to factors such as lack of awareness of the correct status determination by the employer’s management or the employee themselves, or delayed updates by the administrative management department, the recorded status in the social security or personnel files may not align with the changed job position. In fact, after the promulgation of the Labor Law of the People’s Republic of China in 1995, there have been changes in the identification of employee retirement age and status by the labor and social security departments. Article 46 of the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China (Ministry of Labor Document No. 309, 1995) states, “Regarding the issues of employing and appointing cadres within an enterprise, the labor law stipulates that all employees in the employing organization are collectively referred to as workers, and the boundaries of different identities within the same employing organization are thus broken. According to the provisions of the labor law, the work content and positions of workers should be clearly defined through the signing of labor contracts. When the employing organization adjusts the work positions of workers according to the needs of the work, they can negotiate and agree with the workers to change the relevant part of the labor contract.” Furthermore, Article 75 of the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China states, “After the implementation of the labor contract system for all employees of the employing organization, if an employee’s position changes from the original worker position to the original cadre (technical) position, or from the original cadre (technical) position to the original worker position, the retirement age criteria shall be determined according to the regulations of the current position.” This provision can be interpreted to convey the following information. First, whether an employee is classified as a worker or a cadre depends on the nature of their job position, with the determination of employee status based on the characteristics of the job position. Second, if there is a change in the status of a female employee during her employment, whether from a worker to cadre or the other way round, the retirement age criteria shall be determined based on the current position at the time of retirement. Third, the distinction between “worker” and “cadre” status for female employees is broken, and the differentiation of retirement age criteria is instead based on the agreed-upon work content and job position specified in the labor contract between the female employee and the employing organization. Looking only at the two articles mentioned in the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China, there may be some confusion regarding the stance of the labor and social security departments. On one hand, these articles advocate breaking the boundaries between worker and cadre status, but on the other hand, they use the expressions “worker position” and “cadre (technical) position”, seemingly equating job positions with employee status. However, the Opinions of State Economic and Trade Commission, Ministry of Personnel, Ministry of Labor and Social CHAPTER 7 CHAPTER 7 Study on the Retirement Age and Current Job Position Identification for Female Employees ABSTRACT: The differentiated retirement age system based on job positions for female employees in China has resulted in recurring disputes over retirement age among women in different positions. The current laws and regulations in China have undergone a transition from identity recognition to job position recognition when it comes to determining the retirement age for female workers. The key factor in the present job position identification lies in whether female employees and employers have reached an agreement on the nature of their respective positions, distinguishing between managerial and non-managerial positions. It is imperative for China to address the issues related to the retirement age and retirement criteria for female employees by issuing normative documents or judicial interpretations. Keywords: female employees; retirement age; managerial post; non-managerial post I. PRESENTATION OF THE ISSUE In recent years, the issue of retirement age reform has been a prominent topic in China’s social welfare field. At the national level, the Third Plenary Session of the 18th Central Committee of the Communist Party of China issued the Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Deepening the Reform, which specifically called for the study and formulation of a progressive policy for gradually raising the retirement age. The Ministry of Human Resources and Social Security has repeatedly mentioned the “policy of raising the retirement age” in press conferences. Due to the differentiated retirement age system based on gender in China, the discussion and research on the retirement age of female employees have never ceased. This has also translated into disputes between female employees and employers regarding retirement age and retirement status determination, as evidenced by cases across the country. A notable case in 2018 from a court in Guangzhou serves as an example. Ms. Fan started working at a public institution in Guangzhou on August 1, 2000, as a telephone operator. She signed multiple employment contracts with the institution, with the last one being an open-ended contract starting from January 1, 2013. The contract specified Ms. Fan’s job position as managerial and professional/technical. Prior to her resignation, Ms. Fan held the position of Deputy Supervisor in the Public Service Group, primarily responsible for the production, broadcasting, and transmission of radio and television programs. On July 27, 2018, as Ms. Fan was turning 50 years old on August 13, 2018, the institution issued a Notice informing her that she would reach the statutory retirement age on August 13, 2018, and that she would be considered a retired employee of the institution from September 2018 onwards. The labor relationship between the two parties was terminated on August 13, 2018. Ms. Fan believed that she held a cadre position and that her former position as Deputy Supervisor in the Public Service Group was a managerial role. According to relevant regulations, she should have worked until the age of 55. Therefore, she considered the institution’s premature termination of the employment contract, five years before the designated retirement age, as unlawful. As the parties failed to reach a settlement through negotiation, Ms. Fan filed a claim with the arbitration commission, seeking compensation for the unlawful termination of the employment contract. The arbitration commission determined Ms. Fan’s retirement age to be 50 based on her insured status as a worker. Dissatisfied with the decision, Ms. Fan brought the case to the court, which, after reviewing the evidence, determined that the last employment contract Ms. Fan signed with the institution specified a managerial position. Regardless of whether Ms. Fan held a worker or cadre status, if she had worked in her current position for more than a year, her current position would determine her status. Therefore, the court ultimately determined Ms. Fan’s retirement age to be 55. The termination of the employment contract by the employer based on Ms. Fan reaching the retirement age was deemed a violation of laws and regulations, constituting an unlawful termination of the employment contract.
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